                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A12-2135

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                   Dean James Roehler,
                                       Appellant.

                                    Filed April 4, 2016
                                         Affirmed
                                     Stauber, Judge

                              Hubbard County District Court
                                File No. 29-CR-11-1414

William Ward, State Public Defender, Richard A. Schmitz, Assistant Public Defender,
St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Donovan D. Dearstyne, Hubbard County Attorney, Park Rapids, Minnesota (for
respondent)

       Considered and decided by Cleary, Chief Judge; Stauber, Judge; and Kirk, Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

       This matter is before us on remand from the Minnesota Supreme Court, which

directed this court to reconsider our earlier decision in light of the supreme court’s
decisions in State v. Stavish, 868 N.W.2d 670 (Minn. 2015), and State v. Lindquist, 869

N.W.2d 863 (Minn. 2015). We affirm.

                                          FACTS

       On July 14, 2011, at about 5:15 p.m., appellant Dean Roehler was involved in a

head-on car collision. Roehler’s car crossed over the centerline of Highway 34 and

collided with a van traveling in the opposite direction, killing the van driver and injuring

two passengers, the driver’s daughter-in-law and grandchild. Roehler was also seriously

injured; he was unconscious, and emergency personnel worked for 45 minutes to extract

him from his car.

       Minnesota State Trooper Nick Tabbert assisted at the scene of the accident.

Roehler was placed in an ambulance for transport to the nearest airport to be airlifted to

Essentia Health Hospital in Fargo, North Dakota. In the ambulance, Tabbert smelled an

odor of alcohol and asked the flight nurse to draw a blood sample for alcohol-

concentration testing, although he did not have a warrant authorizing the blood draw.

This blood sample was drawn about 6:31 p.m. or a little more than one hour after the

accident. The blood was drawn near an intravenous (IV) line that was also being used to

give Roehler fluids, and Tabbert could tell that the sample was diluted. Tabbert

contacted Minnesota State Trooper Mark Herbranson and directed him to go to the Fargo

hospital and obtain another blood sample from Roehler.

       After arriving at the hospital, emergency room staff drew a blood sample for

medical purposes at approximately 8:07 p.m. The state subsequently obtained a search

warrant for the results of this blood sample, which showed that Roehler had a blood-


                                              2
alcohol concentration (BAC) of 0.086. The record does not indicate that Herbranson was

aware of this blood draw.

       Herbranson obtained a third blood sample at the hospital at 8:58 p.m., but he did

not obtain a warrant before doing so. Roehler was in radiology shortly before going into

surgery when an emergency room nurse used the state patrol blood draw kit to take the

sample. Herbranson could not identify Roehler at trial because he was “wrapped up

pretty bad . . . on the cart, and . . . he was basically critical at the time.” Roehler regained

consciousness two days later and remained in the hospital for 23 days.

       Roehler was charged with eleven criminal counts, including three counts of

criminal vehicular homicide, six counts of criminal vehicular operation, and two counts

of driving while impaired (DWI). At trial, Donna Zittel, a forensic toxicology specialist

at the Bureau of Criminal Apprehension (BCA) crime lab, testified that both the 6:31

p.m. blood draw and the 8:58 p.m. blood draw showed a BAC of 0.05., but she also

testified that, in general, a blood draw near an IV site is not accurate because it includes

fluids entering the patient’s arm from the IV. She noted that because the 6:31 p.m. blood

draw may have been diluted, the sample was not valid for use in reverse extrapolation to

determine Roehler’s BAC at the time of the accident. Instead, Zittel used the 8:58 p.m.

blood draw to extrapolate back to the time of the accident, taking into account the

average burn-off rate of alcohol. She concluded that Roehler likely had a BAC of

between 0.08 and 0.14 at the time of the accident. Zittel also testified that the rate at

which alcohol diminishes in the blood is not affected by drugs or trauma.




                                               3
       Two witnesses testified that they smelled alcohol on Roehler after the accident,

and an accident-reconstruction expert testified that the accident was caused by human

error and not by a mechanical defect or other cause. Roehler denied having more than

two or three beers during the day. He remembered nothing from a point shortly before

the accident until he awoke in the hospital two days later.

       Roehler was convicted by a jury of all eleven criminal counts. He appealed his

convictions, but while his direct appeal was pending, the United States Supreme Court

issued its opinion in Missouri v. McNeely, 133 S. Ct. 1552 (2013). In that opinion, the

Supreme Court ruled that dissipation of alcohol in the blood does not constitute a per se

exigency that permits a warrantless nonconsensual blood draw that would otherwise

violate the Fourth Amendment, and that exigency must be decided on a case-by-case

basis with reference to the totality of the circumstances. Id. at 1568. Roehler moved to

stay his appeal pending a postconviction proceeding in the district court. The district

court denied the postconviction petition, and Roehler’s direct appeal was reinstated,

including issues determined in the postconviction proceeding. This court reversed

Roehler’s convictions because of the warrantless blood draw and remanded the matter to

the district court for a new trial, but declined to consider Roehler’s ineffective-assistance-

of-counsel claim based on counsel’s failure to challenge admission of the medical blood

draw on grounds of physician/patient privilege.

       The state petitioned for further review, alleging that the warrantless blood draw

was lawful under the Fourth Amendment because it was based on “the totality of exigent

circumstances,” and that “the good faith exception to the exclusionary rule nevertheless


                                              4
support[s] admission of the evidence obtained from the warrantless blood draws.” The

supreme court stayed review, “pending final disposition in State v. Stavish. . . and State v.

Lindquist.”

       On August 19, 2015, the supreme court issued opinions in Lindquist and Stavish.

The supreme court vacated this court’s decision in Roehler and remanded with the

directive to this court “to consider the application of Stavish and Lindquist to this appeal,

and if necessary, any additional issues that respondent raised in his appeal that were not

addressed in the court of appeals’ decision of October 6, 2014.” Roehler raised two

issues in his appeal: (1) whether the warrantless blood draw was unlawful under Missouri

v. McNeely and (2) whether he was deprived of his right to a fair trial through ineffective

assistance of counsel.

                                      DECISION

                                              I.

       In McNeely, the United States Supreme Court held that the evanescent nature of

alcohol in the blood did not provide a single-factor exigency exception to the search-

warrant requirement for nonconsensual blood testing in drunk-driving cases. 133 S. Ct.

at 1568. This was a departure from established precedent; previously, the Supreme Court

held that a nonconsensual blood draw was a reasonable search that could be made

without a warrant because the rapid dissipation of alcohol created an exigent

circumstance that provided an exception to the warrant requirement. Schmerber v.

California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 1835-36 (1966). The Minnesota

Supreme Court approved this reasoning in State v. Shriner, permitting a warrantless,


                                              5
nonconsensual blood draw when a police officer had probable cause to believe that the

defendant committed criminal vehicular homicide. 751 N.W.2d 538, 549-50 (Minn.

2008). Thus, at the time of Roehler’s accident, the binding appellate precedent of

Schmerber and Shriner permitted a warrantless blood draw in an accident involving

suspected criminal vehicular homicide.

       In its recent opinion in Lindquist, the Minnesota Supreme Court recognized a

narrow good-faith exception to the warrant requirement when a police officer “acts in

objectively reasonable reliance on binding appellate precedent” and “the binding

precedent . . . specifically authorize[s] the behavior.” 869 N.W.2d at 877. Roehler’s

accident occurred before the Supreme Court issued the McNeely opinion, and, therefore,

the troopers here were acting on the binding appellate precedent of Schmerber and

Shriner, which specifically authorized a warrantless blood draw in an accident involving

suspected criminal vehicular homicide.1

       Although in Lindquist law enforcement attempted to obtain a blood draw within

the two-hour statutory period set forth in Minn. Stat. § 609.21 (2012) and Minn. Stat.

§ 169A.20, subd. 1(5) (2012) (stating that a person who operates a motor vehicle with a

BAC of 0.08 or greater within two hours of the time driving is guilty of criminal

vehicular homicide or DWI), neither statute requires testing within two hours. Section

609.21 provides that a person is guilty of criminal vehicular homicide if he operates a



1
  We note that application for a warrant from a North Dakota judge may have confronted
Herbranson, a Minnesota state trooper, with a more time-consuming task, contributing to
a good-faith belief in the existence of exigent circumstances.

                                             6
motor vehicle “while having an alcohol concentration of 0.08 or more” or “while having

an alcohol concentration of 0.08 or more, as measured within two hours of the time of

driving.” Section 169A.20, subdivision 1(5), provides that a person is guilty of driving

while impaired if “the person’s alcohol concentration at the time, or as measured within

two hours of the time, of driving . . . is 0.08 or more.” (Emphasis added). A test is not

invalid if taken outside of the two-hour window of time; rather, extrapolation by an

expert is required to correlate the results of the test with driving conduct that occurred

more than two hours before the test was administered. See State v. Banken, 690 N.W.2d

367, 372 (Minn. App. 2004) (concluding that test taken more than two hours after driving

can be used as proof that a driver’s BAC was greater than 0.08 at the time of driving); see

also Minn. Stat. § 169A.45, subd. 4 (2010) (describing tests taken more than two hours

after the alleged violation as “competent evidence”). Zittel testified at trial that Roehler’s

alcohol concentration exceeded 0.08 at the time of driving, by extrapolating from the

8:58 p.m. blood test drawn at Herbranson’s request. In McNeely, the U.S. Supreme Court

reasoned that the evanescent nature of alcohol did not create an exigent circumstance

precisely because an expert could determine alcohol concentration by extrapolation. 133

S. Ct. at 1561-63. Despite the factual differences between this case and Lindquist, we

nevertheless conclude that law enforcement was acting under the limited good-faith

exception set forth in Lindquist, and the warrantless blood draw taken from Roehler at the

hospital was lawful.




                                              7
                                             II.

       The supreme court also directed us to consider its decision in Stavish. There, the

defendant was seriously injured and his passenger was killed in a one-car rollover

accident. 868 N.W.2d at 672. The defendant was transported to a hospital for treatment.

Id. at 673. Investigators concluded that alcohol may have been a factor in the accident,

and a police officer was sent to the hospital where the defendant was being treated by

“multiple medical personnel.” Id. Stavish admitted that he had been drinking; therefore,

the police officer directed the emergency room nurse to draw a blood sample, which

showed a BAC of 0.20. Id. The officer had not attempted to seek a warrant because he

believed that under existing law he had the authority to get a blood test, wanted to obtain

the sample within the two-hour statutory period, and thought it was possible that the

defendant would be airlifted to a trauma center, although he did not ask hospital staff if

this was planned. Id.

       Stavish was charged with multiple criminal counts of alcohol and driving-related

offenses, and he moved pretrial to suppress the warrantless blood-draw results, citing

McNeely, which had been decided in the interim between the accident and the omnibus

hearing. Id. at 672-73. The district court suppressed the results, but this court reversed,

“concluding that the State established exigent circumstances that justified the warrantless

search.” Id. at 672. On review, the supreme court affirmed this court, concluding that

the totality of the circumstances supported a finding of exigency. Id.

       The supreme court listed the following as circumstances supporting exigency:

(1) there was a single-car accident involving a fatality; (2) the driver was seriously


                                              8
injured; (3) the driver, who had been transported to the hospital, might be airlifted to

another hospital; (4) alcohol was involved in the accident; (5) multiple medical personnel

were attending to the driver; (6) the officer did not know how long the driver would be at

the hospital or whether “further medical care would preclude obtaining a sample”;

(7) federal and state privacy laws limited the amount of information the officer could

discover about the driver’s medical condition; and (8) the officer was attempting to get a

blood sample within the statutory two-hour period. Id. at 677-79. Each one of these

circumstances was present here, except the last: Roehler’s blood draw occurred outside of

the statutory two-hour period.

       In Stavish, the supreme court discounted the argument that the officer did not even

attempt to obtain a telephone warrant or establish how long it would have taken to get a

warrant, writing that “the seriousness and uncertainty of Stavish’s condition, coupled

with the possibility of transport to another hospital, made it impossible for [the officer] to

know how long Stavish would be available for a blood draw.” Id. at 679-80. The

supreme court concluded that the officer “was faced with an emergency situation in

which it was reasonable to conclude that any delay necessary to obtain a warrant would

‘significantly undermin[e] the efficacy of the search.’” Id. at 680 (quoting McNeely, 133

S. Ct. at 1561).

       We review the district court’s findings for clear error and its ultimate conclusion

about whether there were exigent circumstances de novo. Id. at 677. Here, the

postconviction court made findings similar to those in Stavish; although Roehler was not

facing transport to another hospital, he was scheduled to go into surgery, which would


                                              9
have made him unavailable for a blood draw. These findings are supported by the record

and are not clearly erroneous. We conclude that, based on the totality of the

circumstances, exigent circumstances existed that excused the search-warrant

requirement.

                                             III.

       Because this court reversed Roehler’s conviction on the search-warrant issue, we

did not address his claim of ineffective assistance of counsel. Both parties rely on their

original briefs for analysis of this issue. Roehler argues that his trial counsel’s

representation was ineffective because he failed to object to admission of the medical

blood-draw results on grounds of physician/patient privilege.

       Ineffective-assistance-of-counsel claims are reviewed under a two-pronged test.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To sustain a claim of

ineffective assistance of counsel, a defendant must show that “(1) his counsel’s

performance fell below an objective standard of reasonableness, and (2) that a reasonable

probability exists that the outcome would have been different but for counsel’s errors.”

Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). An appellate court reviews an

ineffective-assistance-of-counsel claim de novo, as a mixed question of fact and law.

State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003). A reviewing court need not address

both test prongs if one is dispositive. Andersen, 830 N.W.2d at 10. There is a

presumption that counsel’s performance is reasonable and questions of strategy are

generally not reviewed. Id. But counsel’s trial strategy must be objectively reasonable.

State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). If counsel fails to investigate facts


                                              10
directly related to the defendant’s theory of the case, his representation may be

ineffective. Id.

       Roehler’s counsel objected at the omnibus hearing to admission of all three blood

tests. Counsel objected to the first and third blood tests for foundational reasons: the

information appeared inaccurate or incomplete and the proponent of the test results was

not qualified as a witness. He objected to the medical blood draw because “by its own

terms, [it] is not to be used for legal purposes,” and challenged the procedures used. This

objection falls short of a claim of physician/patient privilege.

       During the postconviction hearing, Roehler’s counsel was questioned about the

failure to object. He stated, “I did not consider the medical privilege objection [at trial]

simply because of the fact that there was . . . the other test taken by the state trooper at the

hospital. And that had been deemed admissible by the Court at the omnibus hearing.”

He stated that if the other two tests had been suppressed, he “[a]bsolutely” would have

raised medical privilege, but he decided to let the medical results come into evidence at

trial because he thought that an argument about endogenous production of alcohol, “that

is what happens with people when they’re injured seriously, whether or not it produces

ethanol within the body, was about the only good shot left of getting something so that

we could argue . . . they didn’t have evidence beyond a reasonable doubt.” He also

wanted the medical reports in evidence to show how seriously Roehler was injured, “thus

giving . . . the possibility of the jury giving some thought to the endogenous production

of ethanol.”




                                              11
       Based on trial counsel’s testimony, (1) he was aware of the existence of

physician/patient privilege; (2) he would have raised the privilege if the other two blood

tests were suppressed; and (3) he ultimately wanted Roehler’s complete medical records

received in evidence so that he could argue a certain theory of the case. Thus, because

Roehler’s counsel’s decisions were strategic and objectively reasonable, they do not

support an ineffective-assistance-of-counsel claim.

       Affirmed.




                                            12
