                     NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELLATE DIVISION

                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-0793-13T1

STATE OF NEW JERSEY,
                                              APPROVED FOR PUBLICATION
         Plaintiff-Appellant,
                                                   July 29, 2014
v.
                                                APPELLATE DIVISION

DONNA JONES,

         Defendant-Respondent.

________________________________________________________________

             Submitted April 1, 2014 – Decided July 29, 2014

             Before Judges Fisher, Espinosa and Koblitz.

             On appeal from Superior Court of New Jersey,
             Law Division, Camden County, Indictment No.
             12-06-1643.

             Warren W. Faulk, Camden County Prosecutor,
             attorney for appellant (Linda A. Shashoua,
             Assistant Prosecutor, of counsel and on the
             brief).

             Law Offices of Michael W. Kahn, P.C., and
             Brenner Brenner & Spiller, attorneys for
             respondent (Michael W. Kahn and Fletcher C.
             Duddy, on the brief).

         The opinion of the court was delivered by

ESPINOSA, J.A.D.

         In Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185

L. Ed. 2d 696 (2013), a warrantless blood test was administered

to   a    driver   arrested   for   driving   while   intoxicated    after   a
routine traffic stop.             There being no other facts to suggest an

emergency existed, the United States Supreme Court was asked to

decide the broad question "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."      Id. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702

(emphasis added).           Concluding that fact alone did not present a

"per   se    exigency,"         the   Supreme      Court       held,    "consistent     with

general      Fourth      Amendment        principles,          that    exigency    in   this

context must be determined case by case based on the totality of

the circumstances."          Ibid.

       Prior to the Supreme Court's decision, defendant caused a

multiple      vehicle      accident,        resulting          in   personal    injury      to

herself and another that required each of them to be transported

to a hospital.           It took emergency personnel approximately thirty

minutes to extricate the unconscious defendant from her vehicle.

The police investigation of the accident scene at a heavily

traveled intersection took several hours.                             Relying on McNeely,

the trial court suppressed a blood alcohol content (BAC) reading

of   .345,    the      result    of   a    blood    test       administered       without    a

warrant.          We granted leave to the State to appeal from this

order and, for the reasons that follow, we reverse.




                                             2                                      A-0793-13T1
                                        I

      Defendant    was   indicted    on          one   count      of   fourth-degree

assault by auto, N.J.S.A. 2C:12-1(c)(2), and was issued related

summonses for reckless driving, N.J.S.A. 39:4-96, and driving

while intoxicated, N.J.S.A. 39:4-50.                     She filed a motion to

suppress the results of the blood sample.

      Two   witnesses    testified          at     the      suppression      hearing,

Officers James Watts and Anthony Sorrentino of the Cherry Hill

Police   Department.      The   facts        elicited        at    the   suppression

hearing can be summarized as follows:

      It was dusk at approximately 7:00 p.m. on December 28,

2011, when a three-vehicle crash occurred at the intersection of

Kings Highway, a State highway, and Church Road, a county road

in Cherry Hill.      Traffic at this location is heavy during rush

hour conditions.     Two automobiles were stopped at a red light on

Kings Highway.     Defendant drove her vehicle into the second car

stopped at the light, propelling it into the automobile ahead of

it.   Defendant's vehicle continued to strike the second vehicle

before "careening off" across the intersection, where it wedged

up against a cemetery archway.               Because the accident involved

injuries, it was a "Code 2" crash in which available police

units are dispatched to the scene.                 In addition to the eleven

officers    who   responded,    there       were       at   least      two   Emergency




                                        3                                     A-0793-13T1
Medical Service (EMS) vehicles and four EMS personnel, two fire

trucks and an unknown number of firefighters at the accident

scene.

      Officer Sorrentino was one of the first officers on the

scene, which he described as "very chaotic."                    Officers Watts and

Sorrentino described the officers' tasks at the scene.                         Officer

Sorrentino stated,

           [W]hen we first responded we had to set up
           traffic directions so we had to block off
           the vehicles that were damaged. And we had
           to set up a system for directing traffic
           around the damaged vehicles as well as the
           emergency vehicles.   Someone had to attend
           to the victims in each car and other units
           would have attended to any witnesses or
           tried to locate any witnesses at the scene.

      Several     officers    were     needed          to     assess    the    traffic

conditions,     the   occupants      of        the    three    vehicles,      and     the

situation involving defendant's car.                   There was a concern that

the   building    defendant      had      struck       might    collapse.           Watts

described the officers' objective as "to make sure . . . that

there's nothing else going to happen to make the scene worse."

      Defendant    was   found   inside         her   vehicle,     unconscious       and

bleeding   from    her   face.       The       fire   department       and    Emergency

Medical Technicians (EMTs) had to extricate her from her heavily

damaged car, a process that took approximately one-half hour.

As defendant was being removed from the vehicle and placed in




                                           4                                   A-0793-13T1
the ambulance, the EMTs told Officer Sorrentino that there was

an odor of alcohol on defendant's breath.                      Because defendant

remained unconscious, no sobriety tests were administered at the

scene.      Defendant    was    taken    to    the    hospital     along   with   an

occupant of one of the other cars who was also injured in the

accident.

      Officer Watts, a traffic safety officer, testified that his

assignment is to investigate what are deemed to be potentially

serious or fatal accidents.             He was called to investigate the

scene approximately forty-five minutes to one hour after the

accident was reported, arriving after defendant had been taken

to the hospital.         He testified it took several hours for the

investigation at the scene to be completed.

      Officer Sorrentino went to the hospital to follow up on the

injuries of defendant and the occupant of the other vehicle,

which    proved    not   to    be   serious.         Once    defendant     regained

consciousness, Officer Sorrentino asked her if she had anything

to drink and she responded that she had at least one beverage.

The     record    does   not    reveal       for     how    long   defendant      was

unconscious.      Officer Sorrentino described defendant's speech as

"very slurred."      She was unable to answer his questions when he

asked for her address or for a phone contact for a relative.




                                         5                                 A-0793-13T1
       At Officer Sorrentino's request, a nurse drew defendant's

blood at approximately 8:15 p.m.                The blood test revealed a BAC

reading of .345.1         Thus, the blood was drawn approximately one

hour    and     fifteen    minutes       after       police      responded      to    the

automobile accident.

       Officer    Sorrentino     testified          that,   pursuant     to     standard

operating procedures at the time, he was not required to obtain

a search warrant.         He testified further that he did not receive

his first training in securing telephone warrants until after

the accident.           Both Watts and Sorrentino testified that, to

their knowledge, telephone warrants were not available in their

jurisdiction      in     December      2011.2         As    of   the    time    of    the

suppression hearing, neither had obtained a telephone warrant.

       The     suppression      hearing       in     this     case     was     conducted

approximately four months after McNeely was decided.                          Citing our

Supreme Court's decision in State v. Wessells, 209 N.J. 395,

411-12 (2012), the motion judge observed that McNeely applied to

all    cases     that    were    not    yet        final    because     the     decision


1
   The penalties for driving while intoxicated apply to persons
who operate a motor vehicle with a BAC of 0.08% or higher.
N.J.S.A. 39:4-50. Defendant's BAC was more than four times this
amount.
2
   On cross-examination, Watts stated he was referring to his own
understanding that a telephone warrant was not needed "for blood
samples at a crash scene."



                                          6                                     A-0793-13T1
implicated    rights       guaranteed    under        the    federal     Constitution.

The motion judge described the applicable rule as requiring a

warrant for a blood sample unless an exception to the warrant

requirement, such as an exigency, applies.                    He stated,

             [T]he rule in both McNeely and Schmerber [v.
             California, 384 U.S. 757, 771-72, 86 S. Ct.
             1826, 1836, 16 L. Ed. 2d 908, 920 (1966)] is
             that a warrantless blood draw may be taken
             from drunk driving suspects based on the
             exigency of the dissipation of blood alcohol
             evidence   where   the   totality   of   the
             circumstances indicates that the officer did
             not have time to obtain a warrant.       The
             Court in Schmerber found an exigency to
             exist while the Court in McNeely affirmed
             the Missouri Supreme Court decision finding
             none.

     The motion judge found both Sorrentino and the other police

witness to be "genuinely credible," and "acted probably in good

faith," which included "ask[ing] the hospital personnel to use a

kit to do a blood draw of the suspect" instead of seeking a

search     warrant.        He   also    recognized          that      while    telephonic

warrants were available, it was not the general practice to use

them.

     The motion judge found that the officers had a sufficient

legal basis to seek a search warrant when the EMT alerted them

to   the    odor      of   alcohol      on       defendant       in     light    of    the

circumstances of the accident.                   The judge acknowledged eleven

police     officers    were     required         in   addition     to    the    emergency




                                             7                                   A-0793-13T1
personnel   at    the   accident   scene    and   that    the   officers    had

"duties to attend to of great importance at the scene and were

attending to them."         However, the motion judge concluded that

the State had not established that

            under all the circumstances of this case,
            this three-car accident with one serious
            injury and one minor injury, was such that
            all the attention of all the police officers
            the entire time they were all there was
            required to attend to duties at the scene
            such that it would have been impossible for
            any one of them to have had the time to call
            for a search warrant telephonically.

            [Emphasis added.]

      The motion judge also stated that, although McNeely and the

caselaw generally discuss the natural metabolization of alcohol

in the bloodstream, he had no evidence before him that showed

            in any kind of detail as to precisely what
            that problem is, precisely how quickly
            alcohol tends to metabolize, what the time
            frame is within which the alcohol test must
            have been conducted relative to the last
            time the person ingested alcohol for some
            sort of reasonably fair reading to be
            obtained.

      Accordingly, defendant's motion to suppress was granted.

      In this appeal, the State argues that the motion judge

erred in applying McNeely "retroactively" and in failing to find

an   exigency    in   the   circumstances   here.        Defendant   does   not

dispute that the procedure here would have passed muster under

the applicable New Jersey precedents.               Instead, she contends



                                     8                                A-0793-13T1
that New Jersey precedent constituted "bad law," premised upon a

misreading of Schmerber.         She submits that the motion judge was

correct in applying McNeely to this case and in concluding there

was no exigency to excuse the failure to obtain a warrant.

      In reviewing the denial of a motion to suppress, this court

"must uphold the factual findings underlying the trial court's

decision so long as" there is sufficient and credible support in

the record.       State v. Elders, 192 N.J. 224, 243 (2007).                      The

trial court's legal conclusions, however, are not entitled to

the same deference — "appellate review of legal determinations

is plenary."     State v. Handy, 206 N.J. 39, 45 (2011).

      In this case, the motion judge concluded that the blood

test results had to be suppressed because the State failed to

show "it would have been impossible" to obtain a warrant.                          In

addition,   he      criticized     the        lack    of    precise      information

regarding     the    elimination      rate       for       defendant's     BAC    and

questioned the allocation of police resources at the scene of

the   accident.       We   conclude      that        the   judge   erred    in    his

application of the standard required by McNeely and Schmerber

and that the blood test results should not have been suppressed.

                                         II

      In 2011, New Jersey law permitted the police to obtain a

blood sample without first obtaining a warrant, so long as they




                                         9                                  A-0793-13T1
had probable cause to believe that the driver was intoxicated

and the sample was taken "in a medically acceptable manner at a

hospital or other suitable health care facility," State v. Dyal,

97 N.J. 229, 238 (1984) (citing Schmerber, supra, 384 U.S. at

771-72, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920), and without the

use of excessive force.    State v. Ravotto, 169 N.J. 227, 231-33

(2001); see also State v. Adkins, 433 N.J. Super. 479, 482-84

(App. Div. 2013), certif. granted, 217 N.J. 588 (2014).

    The following passage in Schmerber provided guidance for

our decisions:

         [T]he questions we must decide in this case
         are whether the police were justified in
         requiring petitioner to submit to the blood
         test, and whether the means and procedures
         employed in taking his blood respected
         relevant   Fourth  Amendment  standards  of
         reasonableness.

         In this case, as will often be true when
         charges of driving under the influence of
         alcohol are pressed, these questions arise
         in the context of an arrest made by an
         officer without a warrant.    Here, there was
         plainly probable cause for the officer to
         arrest   petitioner   and  charge   him  with
         driving   an   automobile  while   under  the
         influence of intoxicating liquor.         The
         police officer who arrived at the scene
         shortly after the accident smelled liquor on
         petitioner's breath, and testified that
         petitioner's eyes were "bloodshot, watery,
         sort of a glassy appearance."     The officer
         saw petitioner again at the hospital, within
         two hours of the accident. . . .

                 . . . .



                                10                        A-0793-13T1
         Although   the   facts    which   established
         probable cause to arrest in this case also
         suggested the required relevance and likely
         success of a test of petitioner's blood for
         alcohol, the question remains whether the
         arresting officer was permitted to draw
         these inferences himself, or was required
         instead   to   procure   a   warrant   before
         proceeding with the test.     Search warrants
         are ordinarily required for searches of
         dwellings, and, absent an emergency, no less
         could be required where intrusions into the
         human body are concerned. . . .

         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[.]"      We are told
         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.       Given these special
         facts, we conclude that the attempt to
         secure evidence of blood-alcohol content in
         this case was an appropriate incident to
         petitioner's arrest.

         [Schmerber, supra, 384 U.S. at 768-771, 86
         S. Ct. at 1834-36, 16 L. Ed. 2d at 918-20
         (emphasis   added)    (internal  citations
         omitted).]

    In Dyal, supra, our Supreme Court described the "crucial

consideration" in this reasoning:

         [T]he   body eliminates alcohol at a rapid
         rate.    The evidence is evanescent and may



                               11                        A-0793-13T1
              disappear in a few hours.       Investigating
              police, while coping with an emergency,
              should not be obliged to obtain a search
              warrant before seeking an involuntary blood
              test of a suspected drunken driver.

              [97 N.J. at 239-40 (citing Schmerber, 384
              U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed.
              2d at 919-20).]

       Our courts did not stand alone in this interpretation of

Schmerber.       The Supreme Court noted that it was deciding McNeely

to resolve a split in federal authority on this issue.                             Id. at

___, 133 S. Ct. at 1558, 185 L. Ed. 2d at 703; see also 3 Wayne

R.     LaFave,      Search   and     Seizure,       A    Treatise      on   the    Fourth

Amendment, §5.4(b) (5th ed. 2012) and cases cited therein.

       It is an ineluctable conclusion that, at the time Officer

Sorrentino requested a blood sample, he had probable cause to

believe that defendant had been driving while intoxicated.                              The

parties      stipulated      that    the    blood       sample   was   obtained        in   a

medically acceptable manner.               It would therefore appear that the

blood sample procedure here complied with New Jersey law at the

time    of    the    accident       and    defendant      has    not   argued     to    the

contrary.

       We note further that, if the ruling in McNeely had come

from our Supreme Court based upon the protections afforded by

the New Jersey Constitution, the ruling would have marked a

clear departure from New Jersey precedent that would have been




                                             12                                   A-0793-13T1
limited to prospective application.           See State v. Cummings, 184

N.J. 84, 96-99 (2005); see also Adkins, supra, 433 N.J. Super.

at 486.

                                     III

      Since     McNeely   is     rooted    in    the     Supreme      Court's

interpretation of federal constitutional law, its application

here is governed by the well-established principle that "a new

rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct

review or not yet final, with no exception for cases in which

the   new   rule   constitutes   a   'clear     break'   with   the    past."

Wessells, supra, 209 N.J. at 412 (quoting Griffith v. Kentucky,

479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661

(1987)).      Citing Wessells, defendant argues and the motion judge

found that McNeely must be given "retroactive" application,3 a


3
   In Wessells, our Supreme Court addressed the question whether
a defendant's statement to police following his arrest should be
suppressed because the questioning violated a new bright-line
rule subsequently announced by the United States Supreme Court
in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed.
2d 1045 (2010).    Wessells, supra, 209 N.J. at 397.     In that
case, the United States Supreme Court established fourteen days
as "a break in custody that is of sufficient duration to
dissipate its coercive effects" for renewed interrogation of a
suspect who initially requested counsel.    Shatzer, supra, 559
U.S. at 109, 130 S. Ct. at 1222, 175 L. Ed. 2d at 1056. After
reviewing the history of pertinent precedent, the Court observed
that Shatzer represented a "rejection of a totality of the
circumstances approach in favor of a single time period," and
                                                     (continued)


                                     13                               A-0793-13T1
conclusion rejected by another part of this court.4               For the

purposes of our analysis here, however, we need not determine

whether   McNeely    should    be    applied   retroactively   because   we

conclude that the application of McNeely to the facts of this

case    does   not   require   the    suppression   of   the   results   of

defendant's blood test.

       The fact that the Supreme Court rejected a per se exigency

rule in McNeely should not be misinterpreted as a retreat from

its recognition that the dissipation of alcohol in the blood

merits considerable weight in a totality of the circumstances

analysis.      It must be emphasized that both the Missouri Supreme



(continued)
that the United States Supreme Court's "language of certainty"
was intended to "avoid debate" by creating a bright line rule.
Wessells supra, 209 N.J. at 410.       In contrast to Shatzer,
McNeely did not establish a bright line rule but rather, adhered
to a totality of the circumstances approach to the resolution of
challenges to warrantless blood samples taken from suspected
drunk drivers. See McNeely, supra, ___ U.S. at _____, ____, 133
S. Ct. at 1559, 1563-64, 185 L. Ed. 2d at 705, 709-10.
4
   In Adkins, we observed that "the United States Supreme Court
will not apply the exclusionary rule as a remedy where the
police conducted a search in good faith reliance on binding
legal precedent in the jurisdiction where the search occurred,"
and that the Court had clarified that retroactive application is
not mandated by a new rule of substantive Fourth Amendment law.
Id. at 484-85 ("[T]he retroactive application of a new rule of
substantive Fourth Amendment law raises the question whether a
suppression remedy applies; it does not answer that question.")
(quoting Davis v. United States, ___ U.S. ___, ___, 131 S. Ct.
2419, 2431, 180 L.Ed. 2d 285, 298-99 (2011)).




                                      14                          A-0793-13T1
Court and the United States Supreme Court described the facts in

McNeely as "'unquestionably a routine DWI case' in which no

factors   other      than   the    natural      dissipation     of   blood-alcohol

suggested that there was an emergency."                      McNeely, supra, ___

U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 703 (quoting

State v. McNeely, 358 S.W.3d 65, 74 (Mo. 2012)).                     There was no

accident; no injured defendant who needed to be extricated from

her heavily damaged car; no other injured person who had to be

transported to the hospital; no concentration of disabled cars

and emergency vehicles at a busy intersection; and no police

investigation beyond the DWI arrest.

       Still, the Supreme Court accepted as "true" the immutable

fact   that   the    alcohol      level    in   one's   bloodstream     begins    to

dissipate     from   the    time    "the    alcohol     is   fully   absorbed    and

continues to decline until the alcohol is eliminated."                     Id. at

____, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706.                      It is through

this lens that the Supreme Court assessed the totality of the

circumstances.

       The Supreme Court discounted the significance of the "exact

elimination rate," finding it "sufficient" to note that "because

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.




                                           15                             A-0793-13T1
Ct. at 1560-61, 185 L. Ed. 2d at 707 (emphasis added).5                  The

Court emphasized this point, stating,

             This fact was essential to our holding in
             Schmerber, as we recognized that, under the
             circumstances, further delay in order to
             secure a warrant after the time spent
             investigating the scene of the accident and
             transporting the injured suspect to the
             hospital to receive treatment would have
             threatened the destruction of evidence.

             [Id. at ____, 133 S. Ct. at 1561, 185 L. Ed.
             2d at 707 (emphasis added).]

      The salient points to be made here are that the dissipation

of   blood   alcohol   continues   to   be   an   "essential"   factor   in

analyzing the totality of the circumstances; that time spent

investigating an accident and transporting an injured suspect to

the hospital causes delay; that obtaining a warrant will result

in further delay;6 and that such additional delay will "threaten"


5
   The Court observed, "More precise calculations of the rate at
which   alcohol   dissipates   depend   on  various   individual
characteristics (such as weight, gender, and alcohol tolerance)
and the circumstances in which the alcohol was consumed."    Id.
at ____, 133 S. Ct. at 1560, 185 L. Ed. 2d at 707 (citing
Stripp, Forensic and Clinical Issues in Alcohol Analysis, in
Forensic Chemistry Handbook 437-41 (L. Kobilinsky ed. 2012)).
Since many of these facts, as well as the time a suspect ceased
drinking alcohol, are unlikely to be known to officers arriving
at an accident scene, the Court's dismissal of any need to prove
an "exact elimination rate" is a practical approach to the
analysis.
6
   Recognizing that some delay is inevitable, even in a telephone
warrant situation, the Court stated, "We by no means claim that
telecommunications innovations have, will, or should eliminate
                                                      (continued)


                                   16                             A-0793-13T1
the destruction of evidence.                The Supreme Court did not require

the State to show that the "further delay" would substantially

impair    the    probative     value       of    a   blood     sample   drawn       after    a

warrant    was    obtained     or    that       it   was   impossible        to    obtain    a

warrant before the evidence was dissipated.                      In short, the Court

did not require proof that evidence would be destroyed; it was

sufficient to show that delays "threatened" its destruction.

    It is therefore clear that the motion judge applied a more

stringent       test   than    that    required           by   McNeely.           The   judge

interpreted      McNeely      to    mean    that     an    exigency     is    limited       to

circumstances where there is no time to obtain a warrant.                               This

very standard was advocated by Chief Justice Roberts in his

partial dissent.        He would have established the following rule:

            If there is time to secure a warrant before
            blood can be drawn, the police must seek
            one.     If an officer could reasonably
            conclude that there is not sufficient time
            to seek and receive a warrant, or he applies
            for one but does not receive a response
            before blood can be drawn, a warrantless
            blood draw may ensue.

            [McNeely, supra, ____ U.S. at _____, 133 S.
            Ct. at 1573, 185 L. Ed. 2d at 752 (Roberts,
            C.J., concurring and dissenting).]




(continued)
all delay from the warrant-application process."                             Id. at ___,
133 S. Ct. at 1562, 185 L. Ed. 2d at 709.




                                            17                                      A-0793-13T1
    The Supreme Court explicitly declined to adopt the Chief

Justice's      "modified    per      se     rule,"   favoring        instead     the

"traditional totality of the circumstances analysis."                      Id. at

_____, 133 S. Ct. at 1563, 185 L. Ed. 2d at 710.                 Of particular

importance to an analysis of the facts here, McNeely described

the special facts considered in the Schmerber Court's analysis

which,   the     Court     agreed,        were   sufficient     to     support     a

warrantless blood test:

            [T]he petitioner had suffered injuries in an
            automobile accident and was taken to the
            hospital.     While he was there receiving
            treatment, a police officer arrested the
            petitioner for driving while under the
            influence of alcohol and ordered a blood
            test over his objection. . . .              [W]e
            concluded that the warrantless blood test
            "in   the   present    case"   was   nonetheless
            permissible    because    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.'"

            In support of that conclusion, we observed
            that 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."      We   added   that
            "[p]articularly 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."
            "Given these special facts," we found that
            it was appropriate for the police to act
            without a warrant.



                                          18                              A-0793-13T1
           [McNeely, supra, ___ U.S. at ____, 133 S. Ct.
           at 1559-60, 185 L. Ed. 2d at 705-06 (emphasis
           added) (internal citations omitted).]

    The Court described the analysis in Schmerber as "fit[ting]

comfortably      within       our   case        law    applying       the     exigent

circumstances exception."           Id. at ____, 133 S. Ct. at 1560, 185

L. Ed. 2d at 706.         Notably, the Court did not dissect precisely

how much time was used to take the accused to the hospital or

required to investigate the scene of the accident, and it did

not evaluate in hindsight whether the officers on the scene

allocated their resources efficiently.

    In sum, the "special facts" that supported a warrantless

blood   sample   in    Schmerber     and       were   absent    in   McNeely,     were

present   in     this      case:     an        accident,      injuries      requiring

hospitalization,        and    an    hours-long         police       investigation.

Therefore, it was not necessary for the officers to shoulder the

further delay entailed in securing a warrant that would have

threatened     the    destruction     of        the   blood    alcohol      evidence.

Defendant's suppression motion should have been denied.

    Reversed.




                                          19                                 A-0793-13T1
