                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0771

Court of Appeals                                                            Dietzen, J.
                                                               Dissenting, Gildea, C.J.
                                                                   Dissenting, Page, J.
State of Minnesota,

                      Respondent,
                                                                Filed: August 19, 2015
vs.                                                          Office of Appellate Courts

Derek Lawrence Stavish,

                      Appellant.

                              ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michelle M. Zehnder Fischer, Nicollet County Attorney, James P. Dunn, Chief Deputy
County Attorney, Saint Peter, Minnesota, for respondent.

James M. Ventura, James M. Ventura Attorney at Law, Wayzata, Minnesota;

Michael S. Gaarder, Pennington & Cherne PLLC, St. Cloud, Minnesota; and

John J. Neal, Willenbring, Dahl, Wocken & Zimmermann PLLC, Cold Spring,
Minnesota, for appellant.
                          ________________________




                                           1
                                      SYLLABUS

       1.     The State established that it cannot prove an essential element of two

counts of the complaint if the alcohol concentration evidence is suppressed, and therefore

satisfied the critical impact requirement to appeal the pretrial order.

       2.     Based upon the totality of the circumstances, the State established that law

enforcement was faced with an emergency in which the delay necessary to obtain a

warrant made a warrantless blood draw reasonable under the exigency exception to the

Fourth Amendment.

       Affirmed.

                                       OPINION

DIETZEN, Justice.

       Appellant Derek Stavish was charged with three counts of criminal vehicular

operation resulting in death, two counts of fourth-degree driving while impaired, reckless

driving, and careless driving arising out of a single-vehicle rollover crash on June 18,

2012, that resulted in the death of Brent Lehnen and serious injuries to Stavish. Stavish

moved to suppress alcohol concentration test results from a blood draw taken after the

accident on the grounds that his blood was drawn without a warrant and without his

consent. The district court granted the motion to suppress concluding, in part, that the

State failed to satisfy the exigent circumstances exception as applied in Missouri v.

McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013).             The court of appeals reversed,

concluding that the State established exigent circumstances that justified the warrantless

search. State v. Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014). Because we agree


                                              2
that the State established that exigent circumstances justified the warrantless blood draw

in this case, we affirm.

       On the evening of June 18, 2012, the Minnesota State Patrol responded to a 911

call regarding a vehicle crash in rural Nicollet County. Based upon an investigation at

the scene, officers determined that the accident resulted in one fatality, that the alleged

driver, appellant Derek Stavish, was seriously injured, and that alcohol may have been a

factor in the accident. An officer obtained a blood draw from Stavish and later testing of

that blood revealed an alcohol concentration of 0.20.

       The State filed seven criminal charges against Stavish: (1) criminal vehicular

operation resulting in death, in violation of Minn. Stat. § 609.21, subd. 1(1) (2012)

(operating a motor vehicle in a grossly negligent manner); (2) criminal vehicular

operation resulting in death, in violation of Minn. Stat. § 609.21, subd. (1)(2)(i)

(operating a motor vehicle in a negligent manner while under the influence of alcohol);

(3) criminal vehicular operation resulting in death, in violation of Minn. Stat. § 609.21,

subd. 1(3) (operating a motor vehicle while having an alcohol concentration of 0.08 or

more); (4) fourth-degree driving while impaired (DWI), in violation of Minn. Stat.

§ 169A.20, subd. 1(1) (2014) (driving while under the influence of alcohol); (5) fourth-

degree DWI, in violation of section 169A.20, subd. 1(5) (driving with an alcohol

concentration of 0.08 or more, as measured within 2 hours of driving); (6) reckless

driving, in violation of Minn. Stat. § 169.13, subd. 1 (2014); and (7) careless driving, in

violation of Minn. Stat. § 169.13, subd. 2 (2014).




                                             3
       Stavish brought a motion to suppress the alcohol concentration test results. The

parties acknowledged that when Stavish’s blood was drawn, our decision in State v.

Shriner, 751 N.W.2d 538, 548-50 (Minn. 2008), abrogated by Missouri v. McNeely, ___

U.S. ___, 133 S. Ct. 1552 (2013), permitted a warrantless, nonconsensual blood draw

from a defendant, provided that the officer had probable cause to believe the defendant

had committed criminal vehicular homicide or operation.                  But the parties also

acknowledged that the United States Supreme Court’s decision in McNeely, ___ U.S.

___, 133 S. Ct. 1552, which abrogated Shriner, was released prior to the omnibus hearing

and was applicable to this case.      Stavish argued that the blood draw constituted a

warrantless, nonconsensual search taken in violation of his constitutional rights. The

State countered that the exigencies of the situation justified a warrantless search under

McNeely, ___ U.S. at ___, 133 S. Ct. at 1561.

       After a contested omnibus hearing, the district court set forth the operative facts in

two pretrial orders. Law enforcement received a report of a crash at 10:28 p.m. Sergeant

Martens testified that the first officers to arrive at the accident scene observed that there

had been a single-vehicle rollover crash involving a pickup truck.            When Sergeant

Martens arrived at the crash site around 10:45 p.m., he was informed that two people had

been ejected from the vehicle and that one person had died. The other person ejected,

later identified as Stavish, sustained serious injuries, was transported by ambulance to

New Ulm Medical Center (NUMC), and would possibly be transported by helicopter

from NUMC to a medical trauma center. Before he was transported to NUMC, Stavish

admitted to one of the officers that he was the driver of the vehicle.


                                              4
        The officers at the accident scene decided that Sergeant Martens would go to the

hospital to determine the involvement of alcohol in the crash. Upon arrival at the NUMC

emergency room, Sergeant Martens spoke to Stavish, who was being tended by multiple

medical personnel.     Stavish smelled strongly of alcohol, and admitted to Sergeant

Martens that he had been drinking prior to the crash. Sergeant Martens advised an

emergency room nurse that he needed a blood draw from Stavish, and a sample was

drawn at 11:18 p.m. Testing of the blood sample revealed an alcohol concentration of

0.20.

        Sergeant Martens testified that he believed he had the authority to obtain the blood

sample under Minnesota law, and therefore did not secure a warrant or obtain Stavish’s

consent. Sergeant Martens admitted that, at the time Stavish’s blood was drawn, 70

minutes remained in the 2-hour window for obtaining a blood sample. Sergeant Martens

did not ask hospital personnel whether Stavish would be airlifted to another medical

center, and did not attempt to contact the on-call judge or prosecutor to obtain a

telephonic warrant.

        In a September 2013 pretrial order, the district court denied Stavish’s motion to

suppress the alcohol concentration test results. The court concluded the State failed to

prove exigent circumstances justifying a warrantless blood draw, but that the alcohol

concentration test results were admissible under the good-faith exception to the

exclusionary rule because, at the time the blood draw was taken, such a search was

deemed constitutional. See Shriner, 751 N.W.2d at 549-50.




                                             5
      Stavish filed a motion for the district court to reconsider its decision. The district

court, relying upon State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134

S. Ct. 1799 (2014), filed a second pretrial order in May 2014 that granted Stavish’s

motion to reconsider and suppressed the alcohol concentration test results on the ground

that this court declined to resolve Brooks on the basis of a good-faith exception to the

exclusionary rule.   The court denied the State’s motion to reconsider the exigency

determination. The State appealed the second pretrial order.

      The court of appeals reversed the district court’s order suppressing the alcohol

concentration test results, concluding that the exigencies of the situation justified a

warrantless blood draw, and that the blood draw was therefore constitutional. State v.

Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014). The court of appeals did not reach the

good-faith exception issue. We granted review.

                                            I.

      Because this is a State’s pretrial appeal, we first must determine whether the

suppression of the alcohol concentration test results will have a critical impact on the

State’s case. A pretrial order may be appealed only when the State shows “the district

court’s alleged error, unless reversed, will have a critical impact on the outcome of the

trial.” Minn. R. Crim. P. 28.04, subd. 2(b). When a pretrial order suppresses evidence in

a criminal prosecution, the State must show that excluding the evidence “significantly

reduces the likelihood of a successful prosecution.” State v. Zais, 805 N.W.2d 32, 36

(Minn. 2011) (citations omitted).     Previously, we have held that critical impact is

established if the exclusion of evidence would prevent the State from successfully


                                            6
prosecuting one of the specific charges. State v. Underdahl, 767 N.W.2d 677, 684

(Minn. 2009) (holding that “an order that dismisses DWI charges, even when other

charges remain, will have a critical impact on the prosecution’s case”); State v. Hicks,

301 Minn. 350, 353, 222 N.W.2d 345, 347 (1974) (holding that a pretrial order

suppressing the results of an alcohol concentration test was appealable by the State

because the order prevented successful prosecution for the charged offense of driving

with an alcohol concentration of 0.10 or greater, even though other charges were not

affected).

       We conclude the State has established that it cannot prove an essential element of

two of the charged counts if the alcohol concentration evidence is suppressed.

Specifically, the count charging Stavish with criminal vehicular homicide, in violation of

Minn. Stat. § 609.21, subd. 1(3), and the count charging Stavish with fourth-degree DWI,

in violation of Minn. Stat. § 169A.20, subd. 1(5), require the State to establish that

Stavish’s alcohol concentration was at or exceeded 0.08. Because two of the charges in

this case will be dismissed if the alcohol concentration evidence is suppressed, the State

has established critical impact in this case.

                                                II.

       We next address whether Stavish’s warrantless blood draw violated his Fourth

Amendment rights. The Fourth Amendment to the United States Constitution provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath or
       affirmation, and particularly describing the place to be searched, and the
       persons or things to be seized.


                                                7
U.S. Const. amend. XIV. It is well-settled that a blood draw is a search that is subject to

Fourth Amendment protections. McNeely, ___ U.S. at ___, 133 S. Ct. at 1558.

       The Fourth Amendment expressly requires (1) that a search and seizure be

reasonable, and (2) that “a warrant may not be issued unless probable cause is properly

established and the scope of the authorized search is set out with particularity.” Kentucky

v. King, ___ U.S. ___, ___, 131 S. Ct. 1849, 1856 (2011). A warrantless search or

seizure is presumptively unreasonable. See, e.g., id. (referring to the search of a home);

McNeely, ___ U.S. at ___, 133 S. Ct. at 1558 (referring to the search of the person). The

presumption, however, may be overcome in some circumstances because “the ultimate

touchstone of the Fourth Amendment is reasonableness.” Brigham City v. Stuart, 547

U.S. 398, 403 (2006) (citations omitted).

       A warrantless search of a person is reasonable only if it falls within a recognized

exception to the warrant requirement. McNeely, ___ U.S. at ___, 133 S. Ct. at 1558. One

well-recognized exception to the warrant requirement applies when “the exigencies of the

situation make the needs of law enforcement so compelling that the warrantless search is

objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,

394 (1978) (citations omitted). Exigent circumstances justifying a warrantless search

may exist when “there is compelling need for official action and no time to secure a

warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978).

       The United States Supreme Court has recognized several circumstances that may

give rise to an exigency that justifies a warrantless search, including preventing the



                                            8
imminent destruction of evidence. King, ___ U.S. at ___, 131 S. Ct. at 1856-57. To

resolve whether a law enforcement officer faced an emergency that justified acting

without a warrant, the Court applies the totality-of-the-circumstances approach. See

McNeely, ___ U.S. at ___, 133 S. Ct. at 1559. The exigent circumstances analysis

requires an objective evaluation of the facts reasonably available to the officer at the time

of the search. See Brigham City, 547 U.S. at 404.

                                             A.

       The United States Supreme Court has considered whether exigent circumstances

existed to justify a warrantless blood draw of a suspected drunk driver in two relevant

cases. McNeely, ___ U.S. ___, 133 S. Ct. 1552; Schmerber v. California, 384 U.S. 757

(1966). In Schmerber, the defendant was arrested at a hospital on suspicion of driving

under the influence while he was receiving treatment for injuries suffered in an accident

in which he had been the driver. Id. at 758. The officer ordered a blood sample taken

without a warrant and over the defendant’s objection. Id. at 768-69.

       The Court held that the exigencies of the situation made the warrantless blood

draw reasonable, and therefore that the defendant’s Fourth Amendment rights were not

violated. Id. at 771. It reasoned that “special facts” rendered it appropriate for the police

to act without a warrant. Id. Those special facts were that the evidence could have been

lost because “the percentage of alcohol in the blood begins to diminish shortly after

drinking stops, as the body functions to eliminate it from the system.” Id. at 770.

Moreover, the time necessary to bring the defendant to the hospital and investigate the

scene of the accident resulted in there being no time to seek out a magistrate and secure a


                                             9
warrant. Id. at 770-71. Given these “special facts,” the officer “might reasonably have

believed that he was confronted with an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id. at

770.

       In Missouri v. McNeely, the Supreme Court granted certiorari to resolve a split of

authority regarding whether “the natural metabolization of alcohol in the bloodstream

presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant

requirement for nonconsensual blood testing in all drunk-driving cases.” ___ U.S. at ___,

133 S. Ct. at 1556. The case involved a DWI investigation, in which McNeely was

stopped by a Missouri police officer for speeding and suspected of DWI. Id. The officer,

who observed several indicia that McNeely was intoxicated, requested that McNeely

provide a breath sample. Id. When McNeely failed to provide a breath sample, the

officer had a blood sample drawn at a hospital, which measured McNeely’s alcohol

concentration at 0.154. Id. at ___, 133 S. Ct. at 1556-57.

       The Court concluded that the natural and gradual dissipation of alcohol in the

defendant’s bloodstream, in and of itself, does not constitute an exigency in every drunk-

driving case sufficient to justify a warrantless blood draw. Id. at ___, 133 S. Ct. at 1563.

Nevertheless, the Court recognized that in some circumstances law enforcement may

conduct a warrantless blood draw to prevent the imminent destruction of alcohol

concentration evidence.     Id. at ___, 133 S. Ct. at 1561.          But whether exigent

circumstances exist must be decided in each case, based on the totality of the

circumstances. Id.


                                            10
       In considering whether exigent circumstances are present, the Court in McNeely

reaffirmed that “the metabolization of alcohol in the bloodstream and the ensuing loss of

evidence are among the factors that must be considered in deciding whether a warrant is

required.” Id. at ___, 133 S. Ct. at 1568.       “[B]ecause an individual’s alcohol level

gradually declines soon after he stops drinking, a significant delay in testing will

negatively affect the probative value of the results.” Id. at ___, 133 S. Ct. at 1561. The

Court also acknowledged that even though experts can work backwards and use an

alcohol concentration at the time a sample was taken to determine an alcohol

concentration at the time of an alleged offense, long “intervals may raise questions about

the accuracy of the calculations.” Id. at ___, 133 S. Ct. at 1563. At the same time, the

Court noted that advancements since Schmerber was decided allow for more expeditious

processing of warrant applications. Id. at ___, 133 S. Ct. at 1561-63. Thus, if under the

totality of the circumstances, law enforcement “can reasonably obtain a warrant before a

blood sample can be drawn without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so.” Id. at ___, 133 S. Ct. at 1561.

       In light of McNeely and Schmerber, the relevant inquiry is whether, under all of

the facts reasonably available to the officer at the time of the search, it was objectively

reasonable for the officer to conclude that he or she was faced with an emergency, in

which the delay necessary to obtain a warrant would significantly undermine the efficacy




                                            11
of the search.1 McNeely, ___ U.S. at ___, 133 S. Ct. at 1561 (stating that the Fourth

Amendment mandates that an officer obtain a warrant before a blood draw unless doing

so would “significantly undermin[e] the efficacy of the search”); Schmerber, 384 U.S. at

770 (“The officer in the present case, however, might reasonably have believed that he

was confronted with an emergency, in which the delay necessary to obtain a warrant,

under the circumstances, threatened the destruction of evidence.”)

                                           B.

      With this framework in mind, we turn to the question of whether the State

established that exigent circumstances justified the warrantless blood draw. See State v.

Ture, 632 N.W.2d 621, 627 (Minn. 2001) (“The state bears the burden of establishing an

exception to the warrant requirement.”). We review the district court’s factual findings

under the clearly erroneous standard. State v. Zornes, 831 N.W.2d 609, 621 (Minn.

2013). But we review the district court’s legal conclusions de novo. Id. Thus, we

review the court’s ultimate determination of exigency de novo. See In re Welfare of

1
       In addition to the existence of exigent circumstances, there must be probable cause
to believe the defendant committed a crime in order for a nonconsensual, warrantless
blood draw to be constitutional. See State v. Aguirre, 295 N.W.2d 79, 81-82 (Minn.
1980) (stating that “the constitutional prerequisite to the warrantless nonconsensual
removal of blood of a conscious or unconscious driver” is “probable cause plus exigent
circumstances”); see also State v. Lee, 585 N.W.2d 378, 381 (Minn. 1998) (stating that
the probable cause that is required for purposes of a warrantless, nonconsensual blood
draw is probable cause to believe the defendant has committed a crime and “probable
cause to believe that . . . administration of the [blood alcohol] test will result in the
discovery of evidence that will aid in the prosecution of that crime” (quoting State v.
Speak, 339 N.W.2d 741, 745 (Minn. 1983))). Stavish, however, does not argue that the
State lacked probable cause to conclude that he committed criminal vehicular operation
or DWI, or that the administration of a blood alcohol test would not result in the
discovery of evidence relevant to the prosecution of a crime.


                                           12
D.A.G., 484 N.W.2d 787, 791 (Minn. 1992) (“[W]e make our own evaluation of the

found facts in determining whether exigent circumstances exist.”).

      The relevant circumstances in this case are that officers from the State Patrol

responded to a report of a single-vehicle accident involving a fatality and injuries to

Stavish, who was ejected from his vehicle. Upon his arrival at the accident scene,

Sergeant Martens learned from other officers that Stavish had admitted to being the

driver, had sustained serious injuries, had been transported by ambulance to a nearby

hospital, and would possibly be airlifted to a different hospital. Sergeant Martens then

drove to the hospital to talk with Stavish and determine the involvement of alcohol in the

accident.   When he spoke with Stavish in the emergency room, Sergeant Martens

detected the strong odor of alcohol. The record also indicates that Sergeant Martens

observed multiple medical personnel tending to Stavish in the emergency room.

      We conclude that the State established under the totality-of-the-circumstances

approach that exigent circumstances justified the warrantless blood draw. The relevant

circumstances are that law enforcement had reason to believe that Stavish, who allegedly

admitted to being the driver, had consumed alcohol, and that alcohol contributed to the

accident. Thus, it was important to draw Stavish’s blood within 2 hours of the accident to

ensure the reliability and admissibility of the alcohol concentration evidence.2 See Minn.


2
       Stavish was charged with, among other things, the offense of driving while
impaired under Minn. Stat. § 169A.20, subd. 1(5), which defines impairment as an
alcohol concentration of 0.08 or greater measured within 2 hours of the time of driving.
Although alcohol concentration testing of a blood sample obtained more than 2 hours
after driving may still be admissible to prove impairment, see Minn. Stat. § 169A.45,
                                                   (Footnoted continued on next page.)

                                           13
Stat. § 169A.20, subd. 1(5) (defining impairment as an alcohol concentration of 0.08 or

greater, as measured within 2 hours of the time of driving).          Additionally, Stavish

sustained serious injuries that necessitated emergency medical treatment at a hospital and

potentially required that he be transported by helicopter to another hospital. Stavish’s

medical condition and need for treatment rendered his future availability for a blood draw

uncertain. Sergeant Martens did not know how long Stavish was likely to remain at the

same hospital or whether further medical care would preclude obtaining a sample even if

Stavish stayed at the same hospital. Consequently, it was objectively reasonable for

Sergeant Martens to conclude that he was faced with an emergency in which the delay




(Footnote continued from previous page.)
subd. 4 (2014), the 2-hour window is relevant to the exigency analysis because collecting
a blood sample within that window best ensures that the sample can be used to prove
impairment. Cf. McNeely, ___ U.S. at ___, 133 S. Ct. at 1563 (“While experts can work
backwards from the [blood alcohol concentration] at the time the sample was taken to
determine [blood alcohol concentration] at the time of the alleged offense, longer
intervals may raise questions about the accuracy of the calculation.”).

        Stavish argues that Minn. Stat. § 169A.20, subd. 1(5), is unconstitutional as a
legislative attempt to create a statutory exigency that circumvents constitutional
protections. This argument lacks merit. Under section 169A.20, subdivision 1(5),
measurement of an alcohol concentration of 0.08 or higher within 2 hours of driving is an
element of the offense of driving while impaired. McNeely does not prohibit a State from
criminalizing such conduct. See generally McNeely, ___ U.S. ___, 133 S. Ct. 1552; cf.
State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982) (“The power to define the conduct
which constitutes a criminal offense . . . is vested in the legislature.”). Moreover, section
169A.20, subdivision 1(5), does not authorize a blood draw without a warrant or purport
to establish the natural dissipation of alcohol as a single-factor exigency, in
circumvention of McNeely. It also does not eliminate the State’s burden to prove that,
because of the circumstances present in a particular case, a warrant could not have been
reasonably obtained before a blood draw without significantly undermining the efficacy
of the search. Thus, section 169A.20, subdivision 1(5), is not unconstitutional.


                                             14
necessary to obtain a warrant threatened the destruction of evidence.3 See Schmerber,

384 U.S. at 770.

       Stavish argues, and the district court concluded, that Sergeant Martens’ failure to

ask the treating physician or other hospital personnel if Stavish would, in fact, be airlifted

to another medical center undermines the State’s argument that Sergeant Martens was

faced with an emergency. The district court reasoned that such an inquiry would “have

been simple enough to [make], and it would have provided the trooper with a definite

answer.” We disagree for two reasons.

       First, existing federal and state privacy laws limit information that may be

disclosed about a person’s medical condition and treatment without the person’s written


3
        Justice Page’s dissent argues that we have drawn an analogy to Schmerber but
ignored the factual differences between Schmerber and this case. We disagree.
Schmerber applied a totality-of-the-circumstances approach to determine whether exigent
circumstances existed in a given case. See 384 U.S. at 770-71. Justice Page correctly
points out Schmerber is factually distinguishable because Sergeant Martens was not
required to investigate the scene of the accident and, unlike in Schmerber, the time
necessary to transport the accused to the hospital was not a significant factor. See id. at
769-71. The dissent, however, ignores the medical emergency present in this case that
was not present in Schmerber. While both Schmerber and Stavish were injured in car
accidents and taken to a hospital for treatment, Stavish was ejected from his vehicle and
sustained serious injuries that required emergency medical treatment at the hospital and
may have required air transport to another hospital. We observe that if an accident
resulting in the death of one individual and serious injury to another requiring continuous
and advanced medical treatment does not qualify for the exigency exception, it is difficult
to imagine circumstances that would so qualify. Both Schmerber and McNeely require
that the court examine all relevant facts under the totality of the circumstances. See
McNeely, ___ U.S. at ___, 133 S. Ct. at 1560 (“In finding the warrantless blood test
reasonable in Schmerber, we considered all of the facts and circumstances of the
particular case and carefully based our holding on those specific facts.”); id at ___, 133
S. Ct. at 1563 (“Whether a warrantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the circumstances.”).


                                             15
consent.4 The existing applicable law would likely have precluded Sergeant Martens

from obtaining additional information regarding Stavish’s medical condition and

treatment from the treating physician or other hospital personnel without Stavish’s

written consent. Second, even if Sergeant Martens knew that Stavish was not going to be

transported to another medical center, Sergeant Martens could still have reasonably

concluded that he was faced with an emergency situation. Given the seriousness of

Stavish’s condition and the fact that Stavish’s medical diagnosis and treatment was

evolving, Sergeant Martens could not predict whether Stavish would continue to be

available for a blood draw even if he was not transported to a different hospital.

Therefore, Sergeant Martens’ failure to verify whether Stavish would in fact be airlifted

does not undercut the existence of exigent circumstances.

4
       The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA)
mandates regulations governing privacy standards for certain health care information.
Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified primarily in Titles 26, 29, and 42 of
the United States Code). The HIPAA regulations specify the circumstances under which
health care providers and other “covered entit[ies]” may disclose “protected health
information,” which is broadly defined to include individually identifiable information
that relates to a patient’s past, present, or future medical condition or treatment and is
received or transmitted by a health care provider. 45 C.F.R. § 160.103 (2014). HIPAA’s
privacy protections apply to electronic, written, and oral information. E.g., Holman v.
Rasak, 761 N.W.2d 391, 393 (Mich. Ct. App. 2008), aff’d, 785 N.W.2d 98, 101 (Mich.
2010); Office for Civil Rights, U.S. Dep’t of Health & Human Serv’cs, OCR Privacy
Brief: Summary of the HIPAA Privacy Rule at 3 (2003), http://
www.hhs.gov/ocr/privacy/hipaa/understanding/summary/privacysummary.pdf. Without
the written authorization of the individual, a health care provider or other covered entity
is permitted to disclose protected health information to a law enforcement officer for law
enforcement purposes only if one of six exceptions applies. See 45 C.F.R. § 164.512(f)
(2013). None of these exceptions are implicated by the specific facts of this case. See id.
The Minnesota Health Records Act provides similar privacy protections to patient health
care information and does not contain a law enforcement exception that is applicable to
the specific facts of this case. See Minn. Stat. §§ 144.291-144.34 (2014).


                                            16
      Stavish next argues, and Justice Page’s dissent asserts, that the State failed to

establish exigent circumstances because it did not prove that Sergeant Martens could not

have obtained a telephonic warrant within 2 hours of the accident. See Minn. R. Crim. P.

36.01-.08 (authorizing search warrants on oral testimony). It is true that when Sergeant

Martens obtained the blood sample from Stavish, there were 70 minutes left in the 2-hour

window established by Minn. Stat. § 169A.20, subd. 1(5). Stavish’s argument, however,

fails to consider the totality of the circumstances. Although it is true that 70 minutes

remained in the 2-hour window and that the State did not establish how long it likely

would have taken to obtain a telephonic warrant, Stavish’s medical condition and

ongoing emergency medical treatment changed the nature of the analysis. Specifically,

the seriousness and uncertainty of Stavish’s medical condition, coupled with the

possibility of transport to another hospital, made it impossible for Sergeant Martens to

know how long Stavish would be available for a blood draw. Thus, Sergeant Martens

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.”5 McNeely, ___ U.S. at ___, 133 S. Ct. at 1561.



5
       That is not to say that the mere fact an impaired-driving suspect is injured and
brought to the emergency room per se creates exigent circumstances. Instead, the State
must establish that the facts reasonably available to the officer regarding the suspect’s
medical condition allowed the officer to reasonably conclude that there was not time to
obtain a warrant before the blood draw without significantly undermining the efficacy of
the search. In many cases, the State may need to present evidence about the length of
time it takes to obtain a telephonic warrant in order to establish exigent circumstances.
But even without such evidence in this case, exigent circumstances existed because the
                                                     (Footnoted continued on next page.)

                                           17
                                            C.

       Although we agree with the court of appeals’ ultimate determination that the

warrantless blood draw was justified by exigent circumstances, we conclude that the

court of appeals erred in its underlying reasoning in two respects. First, the court of

appeals relied upon the fact that law enforcement “was attempting to obtain evidence

essential to a probable vehicular homicide charge, not merely a DWI charge.” Stavish,

852 N.W.2d at 909. The seriousness of the offense does not itself create exigency,

Mincey, 437 U.S. at 394, and does not reduce the quantum of evidence the State must

present to prove exigent circumstances.

       Second, the court of appeals relied upon the fact that the accident took place in one

county while Stavish was taken to a hospital in a second county for treatment. Stavish,

852 N.W.2d at 908. The fact that the hospital is located in a different county than the

accident site does not itself create exigent circumstances.          Instead, the relevant

consideration is whether the time necessary to bring the accused to the hospital, or for the

officer to travel to the hospital, impacted the officer’s ability to obtain a warrant before

the blood draw without significantly undermining the efficacy of the search. In this case,

the hospital was only a 10-15 minute drive from the crash site, and Stavish was already at

the hospital when Sergeant Martens arrived. Therefore, the fact that the location of the




(Footnote continued from previous page.)
specific facts establish that any delay necessary to obtain a warrant would significantly
undermine the efficacy of the search.


                                            18
crash site and the hospital were in different counties was not by itself relevant to Sergeant

Martens’ ability to obtain a warrant before the blood draw.

                                             III.

       Because we conclude that the State proved the existence of exigent circumstances

justifying the warrantless blood draw, we do not need to address the State’s alternative

argument that the good-faith exception to the exclusionary rule applies. See Davis v.

United States, ___ U.S. ___, ___, 131 S. Ct. 2419, 2429 (2011) (holding that evidence

obtained during a search conducted in objectively reasonable reliance on binding

appellate precedent is not subject to the exclusionary rule).

       Affirmed.




                                             19
                                       DISSENT

GILDEA, Chief Justice (dissenting).

       I respectfully dissent and join Justice Page’s dissent in part. I agree with Justice

Page that the State did not meet its burden to prove exigency, and I join in sections I and

II of Justice Page’s dissent on the exigency issue except to the extent he discusses State v.

Bernard, 859 N.W.2d 762 (Minn. 2014).

       For the reasons set forth in my separate dissent in State v. Lindquist,

___ N.W.2d ___ (Minn. Aug. 19, 2015), I would not apply the good faith exception in

this case.




                                            D-1
                                       DISSENT

PAGE, Justice (dissenting).

       I respectfully dissent. In this case, the court continues its efforts, begun in State v.

Bernard, 859 N.W.2d 762 (Minn. 2015), and reiterated in State v. Lindquist, ___ N.W.2d

___ (Minn. Aug. 19, 2015), to protect its erroneous decision in State v. Shriner, 751

N.W.2d 538 (Minn. 2008) (establishing that the evanescent nature of alcohol in the

bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S.

___, 133 S. Ct. 1552 (2013) (holding that, contrary to this court’s decisions in Shriner,

the dissipation of alcohol in the blood does not create a per se exigency), and Shriner’s

progeny.    In Bernard, we “fundamentally depart[ed] from longstanding Fourth

Amendment principles” to justify a warrantless breath test as a valid search incident to

arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a

different name.” 859 N.W.2d at 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting

jointly). Here, the court doubles down and again “readopts a per se exigency,” id. at 779,

this time by refusing to hold the State to its “heavy burden” to rebut the presumption of

unreasonableness associated with a warrantless search of the person, Welsh v. Wisconsin,

466 U.S. 740, 749-50 (1984), by establishing that “the delay necessary to obtain a

warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” Schmerber

v. California, 384 U.S. 757, 770 (1966) (citation omitted). The record upon which the

court finds the existence of exigent circumstances is so minimal that the decision here, in

effect, nullifies the warrant requirement in every suspected drunk-driving case involving




                                             D-1
an accident with serious injuries—contradicting basic Fourth Amendment principles and

the Supreme Court’s decision in McNeely.

                                            I.

      The Fourth Amendment provides, in relevant part, that “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” A

blood draw is a search of the person that is subject to Fourth Amendment protections.

Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558 (2013).

      A warrantless search of a person is reasonable only if it falls within a recognized

exception to the warrant requirement. McNeely, ___ U.S. at ___, 133 S. Ct. at 1558. One

well-recognized exception to the warrant requirement applies when “the exigencies of the

situation make the needs of law enforcement so compelling that [a] warrantless search is

objectively reasonable under the Fourth Amendment.” Kentucky v. King, ___ U.S. ___,

___, 131 S. Ct. 1849, 1856 (2011) (alteration in original) (citation omitted).         To

determine whether exigent circumstances justified a warrantless search, a court must

engage in a totality-of-the-circumstances analysis. McNeely, ___ U.S. at ___, 133 S. Ct.

at 1554. This analysis requires an objective evaluation of the facts reasonably available

to the officer at the time of the search. See Brigham City v. Stuart, 547 U.S. 398, 404

(2006). The State bears a “heavy burden when attempting to demonstrate an urgent need

that might justify warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S. 740,

749-50 (1984); see also id. at 750 (explaining that “the burden is on the government to




                                           D-2
demonstrate exigent circumstances that overcome the presumption of unreasonableness

that attaches” to a warrantless search).

       The United States Supreme Court has considered whether exigent circumstances

existed to justify a warrantless blood draw of a suspected drunk driver in two relevant

cases. McNeely, ___ U.S. ___, 133 S. Ct. 1552; Schmerber v. California, 384 U.S. 757

(1966). In Schmerber, the Court considered whether the warrantless taking of blood from

a person injured in a car crash and arrested for driving under the influence of alcohol

violated the Fourth Amendment. 384 U.S. at 766-68. The Court concluded that the

warrantless blood draw was not unconstitutional because the officer who ordered the

blood draw “might reasonably have believed that he was confronted with an emergency,

in which the delay necessary to obtain a warrant, under the circumstances, ‘threatened the

destruction of evidence.’ ” Id. at 770 (citation omitted). More specifically, the Court

explained that

       the percentage of alcohol in the blood begins to diminish shortly after
       drinking stops, as the body functions to eliminate it from the system.
       Particularly in a case such as this, where time had to be taken to bring the
       accused to a hospital and to investigate the scene of the accident, there was
       no time to seek out a magistrate and secure a warrant.

Id. at 770-71. “Given these special facts,” the warrantless blood draw did not violate the

Fourth Amendment. Id. at 771. The Court noted that it “reach[ed] this judgment only on

the facts of the present record.” Id. at 772 (emphasis added).

       In McNeely, the Court considered “whether the natural metabolization of alcohol

in the bloodstream presents a per se exigency that justifies an exception to the Fourth



                                           D-3
Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving

cases.” ___ U.S. at ___, 133 S. Ct. at 1556. The Court held that, “while the natural

dissipation of alcohol in the blood may support a finding of exigency in a specific case,

as it did in Schmerber, it does not do so categorically.” Id. at ___, 133 S. Ct. at 1563.

Instead, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must

be determined case by case based on a totality of the circumstances.” Id. The Court

rejected the assumption that there is never time to secure a warrant in drunk-driving

cases, reasoning that the collection of BAC evidence does not present a “now or never”

situation because BAC evidence “dissipates over time in a gradual and relatively

predictable manner.” Id. at ___, 133 S. Ct. at 1561. The Court also reasoned that

technological advances and changes in court rules since Schmerber was decided permit

“the more expeditious processing of warrant applications.” Id. at ___, 133 S. Ct. at 1561-

62. Accordingly, the Court declined to “depart from careful case-by-case assessment of

exigency,” id. at ___, 133 S. Ct. at 1561, and instead required that courts determine in

each case, based on the totality of the circumstances, whether a warrantless blood test of

a drunk-driving suspect is reasonable, id. at ___, 133 S. Ct. at 1563. If under the totality

of the circumstances law enforcement “can reasonably obtain a warrant before a blood

sample can be drawn without significantly undermining the efficacy of the search, the

Fourth Amendment mandates that they do so.” Id. at ___, 133 S. Ct. at 1561. Here, the

State has failed to establish, under the standard set out in McNeely, that the Fourth

Amendment does not mandate a warrant in this case.




                                            D-4
                                             II.

       In light of McNeely and Schmerber, I agree with the court that the relevant inquiry

is whether, under all of the facts reasonably available to the officer at the time of the

search, it was objectively reasonable for the officer to conclude that he or she was faced

with an emergency in which the delay necessary to obtain a warrant, under the

circumstances, would “significantly undermin[e] the efficacy of the search.”1 McNeely,

___ U.S. at ___, 133 S. Ct. at 1561. But I do not agree that the record in this case meets

that standard, particularly in light of the State’s burden to establish exigency, see Welsh,

466 U.S. at 749-50; see also State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001) (“The

state bears the burden of establishing an exception to the warrant requirement.”), and the

deference that must be given to the district court’s findings. Although we review the

ultimate determination of exigency de novo, we review the district court’s factual

findings for clear error. See State v. Zornes, 831 N.W.2d 609, 621 (Minn. 2013) (“The

[district] court’s factual findings [relating to a Fourth Amendment search and seizure] are

reviewed for clear error, but the de novo standard applies to the application of the facts to

the Fourth Amendment . . . .” (citations omitted)).

       The district court found that “[t]he blood draw occurred at 11:18 p.m., 50 minutes

after the crash was reported,” and that “there was thus still 70 minutes remaining to

obtain a sample from defendant.” The district court also found that “Trooper Martens

1
        While I disagree with the court’s conclusion regarding the existence of exigent
circumstances, I do agree with the court’s discussion in Part II.C regarding the court of
appeals’ misplaced reliance on the seriousness of the offense being investigated and the
fact that the accident scene and hospital were located in different counties.


                                            D-5
could have begun the telephonic warrant process even earlier, while driving from the

crash site to the [hospital]” because Martens had his personal cell phone with him. These

findings are supported by the record, and thus are not clearly erroneous.

       In light of these findings regarding the time available to Sergeant Martens, it is

clear that the State did not meet its burden to prove exigent circumstances. No finding by

the district court or evidence in the record suggests that Sergeant Martens could not have

obtained a warrant within the time remaining in the 2-hour window.2 While the State

generally contends that the telephonic warrant process outlined in Minn. R. Crim. P.

36.01-.08 is burdensome and that there is no guarantee that the on-call judge would have

answered a call at that time of night, the State presented no evidence establishing

approximately how long it would have taken to obtain a warrant or that a judge was

actually unavailable.3 Without any evidence establishing such facts, the State cannot

meet its burden to show that the delay necessary to obtain a warrant, under the

circumstances, “significantly undermin[ed] the efficacy of the search.” McNeely, ___

2
       Stavish was charged with driving while impaired under Minn. Stat. § 169A.20,
subd. 1(5) (2014), which defines impairment as an alcohol concentration of 0.08 or
greater measured within 2 hours of the time of driving. I do not disagree with the court’s
statement that this 2-hour window is relevant to the exigency analysis because collecting
a blood sample within that window best ensures that the sample can be used to prove
impairment. Cf. McNeely, ___ U.S. at ___, 133 S. Ct. at 1563 (“While experts can work
backwards from the [blood alcohol concentration] at the time the sample was taken to
determine [blood alcohol concentration]at the time of the alleged offense, longer intervals
may raise questions about the accuracy of the calculation.”).
3
       I note that the district court judge, who found that the State did not establish the
existence of exigent circumstances, is in a better position than this court to understand
how long it can take to obtain a telephonic warrant and to determine whether the State’s
arguments were credible.


                                           D-6
U.S. at ___, 133 S. Ct. at 1561. To conclude otherwise is to, in effect, create another per

se exigency in contravention of McNeely. Id. at ___, ___, 133 S. Ct. at 1561, 1563. If

the record actually established the burdensome nature of the telephonic warrant process,

that would be one thing, but all we have here is the State’s assertion, nothing more. If the

record established that a judge was actually unavailable, that would be one thing, but all

we have here are the State’s speculations.

       The court, however, asserts that the State met its burden to prove exigent

circumstances because Stavish’s medical condition was serious, possibly requiring air

transport to another medical center, and because his diagnosis and treatment were

evolving. The court also relies on the fact that Martens could not verify Stavish’s

medical condition or need for transport with hospital personnel given limitations imposed

by federal and state privacy laws. But what the court ignores is the complete lack of

evidence presented by the State regarding the length of time necessary to obtain a

warrant. Notwithstanding the uncertainty surrounding Stavish’s medical condition and

the possibility of air transport, the State failed to establish that Martens could not have

obtained a warrant in a sufficiently short period of time—particularly since the district

court found that Martens could have taken steps to initiate the telephonic warrant process

before arriving at the hospital.

       The court draws an analogy to Schmerber, 384 U.S. 757, but disregards the key

differences between that case and this one. In Schmerber, the Court highlighted two

“special facts” that, in combination with the natural dissipation of alcohol from the

bloodstream, would have led an officer to reasonably believe there was no time to seek


                                             D-7
out a magistrate and secure a warrant: “time had to be taken to bring the accused to a

hospital and to investigate the scene of the accident.” 384 U.S. at 770-71. Those same

“special facts” are not present here. Sergeant Martens’ testimony established that the

hospital was only 10 minutes away and that other officers assumed the responsibility of

investigating the scene. Moreover, as noted in McNeely, technological advances and

changes in court rules in the 47 years since Schmerber was decided now permit remote

warrant applications and more expeditious warrant processing. 133 S. Ct. at 1561-62; see

also Minn. R. Crim. P. 36.01-36.08 (outlining the requirements for telephonic warrant

applications).

       In this context, the mere fact that this case, like Schmerber, involved an accident

and a seriously injured drunk-driving suspect does not warrant the same result. McNeely

recognized the need for a case-by-case assessment of exigency—rejecting the argument

that there is never time to obtain a warrant in drunk-driving cases. ___ U.S. at ___, ___,

133 S. Ct. at 1561, 1563. Instead, “[i]n those drunk-driving investigations where police

officers can reasonably obtain a warrant before a blood sample can be drawn without

significantly undermining the efficacy of the search, the Fourth Amendment mandates

that they do so.” Id. at ___, 133 S. Ct. at 1561 (citation omitted). That is the case here.

The record fails to establish that a telephonic warrant could not, under the totality of the

circumstances—including the proximity of the hospital to the accident scene, the

availability of other officers to investigate the scene, and the ability to apply for a warrant

by telephone—have been reasonably obtained before the blood draw without

“significantly undermining” the validity or admissibility of the corresponding BAC


                                             D-8
evidence. Id. at ___, 133 S. Ct. at 1561. Therefore, I conclude that the State failed to

establish that the delay necessary to obtain a warrant, under the circumstances,

“significantly undermin[ed] the efficacy of the search,” id., and accordingly, failed to

meet its burden to establish exigent circumstances that justified the warrantless and

nonconsensual blood draw from Stavish.

       To conclude otherwise is to, in effect, create a new per se rule that permits a

warrantless, nonconsensual blood draw any time a drunk-driving suspect is seriously

injured and taken to the hospital. It is difficult to understand how, if this record is

sufficient to justify a warrantless blood draw, any record will not be sufficient, at least in

the context of an accident. The only way I can understand this decision is the court, once

again, pretending that McNeely never happened. See State v. Bernard, 859 N.W.2d 762,

774 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly); State v. Lindquist, ___

N.W.2d ___, ___ (Minn. Aug. 19, 2015) (Page, J., dissenting). In the process, the court

not only ignores McNeely’s requirement of a case-by-case assessment of exigency, but

also the basic principle that a warrantless search of a person is presumptively

unreasonable, imposing a “heavy burden” on the State “to demonstrate an urgent need”

that justifies such a search. Welsh, 466 U.S. at 749-50.

                                             III.

       The only remaining question is whether the BAC evidence should nevertheless be

admissible under the good-faith exception to the exclusionary rule because the blood

draw, at the time it was taken, was deemed constitutional by our pre-McNeely precedent,

State v. Netland, 762 N.W.2d 202 (Minn. 2009), and State v. Shriner, 751 N.W.2d 538


                                            D-9
(Minn. 2008). In United States v. Davis, ___ U.S. ___, ___, 131 S. Ct. 2419, 2434

(2011), the United States Supreme Court held that “[e]vidence obtained during a search

conducted in reasonable reliance on binding precedent is not subject to the exclusionary

rule.” We adopted the Davis good-faith exception in State v. Lindquist, ___ N.W.2d ___,

___ (Minn. Aug. 19, 2015). I dissented in Lindquist on the basis that the good-faith

exception violates Minn. Const. art. I, § 8,4 see ___ N.W.2d at ___ (Page, J., dissenting),

and I renew those sentiments here. The adoption of the good-faith exception mocks the

constitutionally mandated guarantee of a “certain remedy in the laws” by leaving those

whose rights have been violated by an illegal search without such a remedy. It also

mocks the legislatively created remedy for illegal searches and seizures in Minn. Stat.

§ 626.21 (2014). See Lindquist, ___ N.W.2d at ___ (Lillehaug, J., dissenting).

       For these reasons, I respectfully dissent.




4
       Article I, section 8, of the Minnesota Constitution provides:

       Every person is entitled to a certain remedy in the laws for all injuries or
       wrongs which he may receive to his person, property or character, and to
       obtain justice freely and without purchase, completely and without denial,
       promptly and without delay, conformable to the laws.


                                            D-10
