MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision: 2016 ME 31
Docket:   Sag-15-150
Argued:   October 8, 2015
Decided:  February 18, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
             HUMPHREY, JJ.



                                     STATE OF MAINE

                                                v.

                                      JOHN E. ARNDT

JABAR, J.

         [¶1] John E. Arndt appeals from a judgment of conviction following a jury

trial in the Unified Criminal Docket (Sagadahoc County, Horton, J.) of operating

under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2015), and violating a

condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2015). Arndt contends

that the court erred in denying his motion to suppress and, at trial, admitting

evidence of his blood-alcohol level derived from a blood sample that was seized

without a search warrant. Because we agree with the court’s conclusion that there

were exigent circumstances at the time of the blood draw to justify the warrantless

seizure, we affirm the judgment.1



   1
     Because we affirm the court’s decision, which is based on its determination of the presence of
exigent circumstances, we do not reach Arndt’s arguments concerning consent.
2

                                          I. BACKGROUND

          [¶2] The following facts are taken from the court’s findings on the motion

to suppress, and are reviewed for clear error. State v. Cote, 2015 ME 78. ¶ 9,

113 A.3d 805.           On April 11, 2014, shortly after 5:00 p.m., a deputy of the

Sagadahoc County Sheriff’s Department determined that there was probable cause

to believe that Arndt was driving under the influence of alcohol.2 The deputy

transported Arndt to the Bath Police Department (Bath PD) station to administer a

breath-alcohol test using an Intoxilyzer machine. The deputy took Arndt to the

Bath PD station, rather than the closer Topsham Police Department (Topsham PD)

station, because he had after-hours access to the Bath PD station. The deputy

would have had to call for a Topsham PD officer to meet him to allow access to the

Topsham PD station, and he believed that this would have caused an undue delay

in administering the test.

          [¶3]      Once the deputy reached the Bath PD station, he began the

administration of the breath-alcohol test. Because of problems with the Intoxilyzer

equipment that were not known to the deputy, he made four unsuccessful attempts

to obtain a breath-alcohol level using the Intoxilyzer. The first test was taken at

6:02 p.m. and the fourth test at 6:24 p.m. Fearing that further delay would result in


    2
        Arndt does not challenge that the deputy had probable cause.
                                                                                                        3

the deterioration of evidence of Arndt’s blood-alcohol level, the deputy decided to

conduct a blood test. The deputy contacted the Bath Fire & Rescue Department to

draw a sample of Arndt’s blood, and the department sent a paramedic to the

Bath PD station within five minutes. The blood draw was conducted at 6:45 p.m.

Arndt never objected to any of the tests. Although he signed a consent form, Arndt

was never informed of his option to have a physician draw his blood.

See 29-A M.R.S. § 2521(2) (2015). The deputy never sought a search warrant for

the purpose of drawing Arndt’s blood. Arndt’s blood-alcohol level was measured

to be above 0.15 grams of alcohol per 100 milliliters of blood.

        [¶4] On May 16, 2014, Arndt was charged by complaint with one count of

criminal operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A),

and one count of violating a condition of release (Class E), 15 M.R.S.

§ 1092(1)(A).3 On July 17, 2014, Arndt filed a motion to suppress the results of

the blood test, as well as a motion to dismiss. Following a September 4, 2014,

hearing, the court denied both motions. The matter proceeded to a jury trial on

March 16, 2015, and following the jury’s guilty verdicts on both charges, the court

entered a judgment of conviction and sentenced Arndt to commitment for a term of




   3
     At the time of his arrest, Arndt was on bail with conditions that he not consume or possess alcoholic
beverages or commit any criminal act.
4

seven days in county jail, with execution stayed until April 20, 2015. Arndt timely

appealed.

                                 II. DISCUSSION

         [¶5] Arndt contends that because the deputy did not have a warrant, there

needed to be exigent circumstances present in order to justify the warrantless

seizure of a sample of his blood. He argues that the United States Supreme Court’s

holding in Missouri v. McNeely, 133 S. Ct. 1552, 1556 (2013), that metabolization

of alcohol by the body does not constitute exigent circumstances per se, should

control in this case. He asserts that any exigent circumstances resulting from a

delay in the administration of the Intoxilyzer test was created by the deputy’s

decision to transport Arndt to the Bath PD station for the breath test, rather than to

a nearer station.     Arndt further argues that our holding in State v. Dunlap,

395 A.2d 821 (Me. 1978), bars the consideration of any delay caused by law

enforcement as exigent circumstances.

         [¶6] The State argues that destruction of evidence has been recognized as

exigent circumstances, and that the metabolization of alcohol by the body is such

an exigency. It maintains that although McNeely did not adopt a per se rule that

metabolization of alcohol alone supports a determination of exigent circumstances

in every case of operating under the influence, it may be an exigency in some

cases.     The State also argues that Dunlap only excludes consideration of an
                                                                                5

unreasonable delay by law enforcement as exigent circumstances, and that the

deputy’s actions here were reasonable under the circumstances.

      [¶7] We review the court’s ultimate determination regarding suppression

de novo. State v. Bryant, 2014 ME 94, ¶ 8, 97 A.3d 595.

      [¶8] Absent consent, law enforcement officials are ordinarily required to

secure a search warrant before taking a sample of a defendant’s blood.

Schmerber v. California, 384 U.S. 757, 770 (1966). Generally, searches conducted

without a warrant are unreasonable unless the warrantless search is conducted

within a limited number of well-recognized exceptions, such as consent by the

defendant or exigent circumstances. Katz v. United States, 389 U.S. 347, 357

(1967); State v. Cormier, 2007 ME 112, ¶ 15, 928 A.2d 753. Here, the court did

not address consent, because it was concerned with the deputy’s failure to inform

Arndt of his option to choose a physician to draw his blood, and therefore decided

the motion on the basis of exigent circumstances.

      [¶9] The burden is on the State to prove by a preponderance of the evidence

that exigent circumstances excusing the warrant requirement existed. Dunlap,

395 A.2d at 824. “The exigent circumstances justification for warrantless searches

applies when there is a compelling need to conduct a search and insufficient time

in which to secure a warrant.” State v. Rabon, 2007 ME 113, ¶ 14, 930 A.2d 268

(quotation marks omitted).     The presence of exigent circumstances “is not
6

diminished because in hindsight it appears that a search warrant could have been

obtained.” Dunlap, 395 A.2d at 824. However, exigent circumstances do not

operate as an exception to the requirement for a search warrant when they arise out

of unreasonable delay by law enforcement in obtaining a warrant. Id.

        [¶10] In McNeely, the United States Supreme Court held that although the

natural metabolization of alcohol does not create per se exigent circumstances, it

may create exigent circumstances on a case-by-case basis. 133 S. Ct. at 1556. The

Court has acknowledged that there may be instances in which this natural bodily

process creates exigent circumstances justifying a blood draw without a warrant.

Id. at 1561.

        [¶11]    Arndt’s argument concerning McNeely fails.4 Here, the deputy’s

actions were reasonable under the circumstances. The deputy transported Arndt to

the Bath PD station to obtain a breath test, believing that he could more quickly

administer a blood-alcohol test in Bath, rather than waiting for a Topsham police

officer to grant him access to the nearer Topsham PD station.                          The deputy

unsuccessfully made four separate attempts to obtain a blood-alcohol level using

the Intoxilyzer at the Bath PD station.               By the time the fourth attempt was


    4
     The Dunlap analysis concerning unreasonable delay by law enforcement is necessarily a part of any
analysis of exigent circumstances under McNeely. See McNeely v. Missouri, 133 S. Ct. 1552, 1563
(2013) (stating that exigent circumstances could arise out of a reasonable delay on the part of law
enforcement).
                                                                                        7

complete, nearly one and one-half hours had passed from the time of the initial

arrest. At this point, it was reasonable for the deputy to become concerned that

further delay would result in the loss of evidence due to the metabolization of the

alcohol in Arndt’s body. In order to preserve reliable evidence of intoxication, the

deputy proceeded with a warrantless blood test. We affirm the suppression court’s

determination that exigent circumstances existed, negating the requirement for a

search warrant.5

         The entry is:

                           Judgment affirmed.


On the briefs and at oral argument:

         David Paris, Esq., Bath, for appellant John E. Arndt

         Katie R. Hollstrom, Asst. Dist. Atty., District Attorney’s Office, Bath, for
         appellee State of Maine



Sagadahoc County Unified Criminal Docket docket number CR-2014-457
FOR CLERK REFERENCE ONLY




   5
       Arndt does not otherwise challenge his conviction.
