                                                     In the
                               Missouri Court of Appeals
                                           Western District

                                                           
    STATE OF MISSOURI,                                     
                                                               WD80959
                     Respondent,                               OPINION FILED:
    v.                                                     
                                                               APRIL 16, 2019
    NATHANIEL WADE OSBORN,                                 
                                                           
                      Appellant.                           
                                                           
                                                           


                     Appeal from the Circuit Court of Boone County, Missouri
                                The Honorable Jeff Harris, Judge

         Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge,
                                  Anthony Rex Gabbert, Judge

                                               INTRODUCTION

          Nathaniel Osborn appeals a judgment entered upon a jury verdict finding him guilty of two

counts of assault in the second degree pursuant to Section 565.060.1 He asserts one point on

appeal. He contends that the circuit court erred in overruling his motion to suppress any evidence

and testimony related to a warrantless blood draw and in admitting evidence of the same over his

objection at trial. We reverse and remand for a new trial.




1
  All statutory references are to the Revised Statutes of Missouri as supplemented through the date of Osborn’s offense
in 2015, unless otherwise noted.
                                                BACKGROUND

         The facts, in the light most favorable to the verdict, are as follows.2 On the evening of

February 19, 2015, a mother and daughter were waiting at a red light on a highway exit ramp.

The light turned green, and the mother proceeded to turn left when a car driven by Nathanael

Osborn ran a red light at the intersection and struck her car. Both cars were spun around in the

collision. Trey Olson, whose car was immediately behind the victims’ cars, witnessed the

accident. After the collision, Olson exited his vehicle and approached the two cars and, as he

approached Osborn’s car, he could smell the odor of beer coming from the car.

         Because Osborn may have been intoxicated, Officer Nathan Turner, a member of the

driving while intoxicated unit, was dispatched to the accident to assist in the investigation.

Officer Turner had made approximately 600 DWI arrests over his career, of which, roughly fifty

to sixty involved assault charges similar to those in this case. When Officer Turner arrived at

the scene of the accident, Osborn and the mother and daughter had already been transported to

the hospital. Officer Turner first made contact with Osborn at the hospital approximately forty-

five minutes after the accident had occurred. Osborn was initially unresponsive to both medical

personnel and Officer Turner, but he began responding to Office Turner after a few minutes.

         Osborn’s tongue had been injured in the collision which made it impossible for him to

speak intelligibly, so Officer Turner asked Osborn to respond to his questions with a “thumbs

up” for “yes” and a “thumbs down” for “no.” When Officer Turner asked Osborn if he had been

drinking, Osborn made a hand gesture which Officer Turner interpreted to mean “just a little bit.”

Officer Turner then asked Osborn if he would consent to a preliminary breath test. Osborn


2
          “On appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s verdict.” State
v. Rice, 504 S.W.3d 198, 200 n.3 (Mo. App. 2016).

                                                           2
responded with a “thumbs up.” Osborn’s preliminary breath test indicated the presence of

alcohol. Officer Turner testified that at this point he believed Osborn had intoxicants in his

system, and he left the hospital room to contact his supervisor.

         After Officer Turner left the room to consult with his supervisor, Osborn was taken from

the room for medical treatment. Officer Turner again made contact with Osborn after he was

returned to the room, roughly an hour after their initial interaction. Officer Turner had decided

that he was going to place Osborn under arrest for driving while intoxicated, and he was going to

read Osborn the implied consent law before requesting a blood sample. However, Osborn was

once again unresponsive to both Officer Turner and medical personnel. Because Osborn was

unresponsive, Officer Turner did not read implied consent, but he asked a nurse to obtain a blood

sample. Subsequent testing of this sample by the Missouri Highway Patrol indicated that

Osborn’s blood alcohol content (“B.A.C.”) was .161. As part of his investigation, Officer

Turner later obtained a search warrant for the hospital’s own emergency records which included

a toxicology report indicating the alcohol level in Osborn’s blood.

         Osborn was charged with two counts of assault in the second degree under 565.060

RSMo.3 Osborn moved to suppress evidence of the warrantless blood draw conducted by

Officer Turner. At the evidentiary hearing, the foregoing evidence was adduced. In her

argument before the trial court, the prosecutor made no mention of exigent circumstances or any

other exception to the warrant requirement. Rather, the prosecutor argued that the warrantless

search was justified by Missouri’s implied consent laws. Osborn argued that he did not consent



3
         Section 565.060 was repealed effective January 1, 2017. At the time of this offense the statute, as relevant
herein, provided that a person is guilty of the offense if, while in an intoxicated condition, they operate a motor
vehicle and with criminal negligence cause a physical injury to another person.

                                                          3
to the search, that it was unlawful and violated his constitutional rights, and that it did not fit

within any exception to the warrant requirement. After taking the motion under advisement, the

trial court later overruled the motion through a docket entry. Osborn entered and then later

withdrew a guilty plea at which point, per Osborn’s request, the judge assigned to the case

recused himself and the case was transferred to Division IV for further proceedings.

         At the jury trial, Officer Turner again testified as to his investigation of the collision.

Defense counsel asked the court for a continuing objection regarding evidence of the blood draw

“to track through the rest of the trial.” Defense counsel renewed his objection later during

Officer Turner’s testimony when the prosecutor moved to admit the warrantless blood draw into

evidence. The trial court admitted the state’s evidence “over the Defendant’s objection.” Officer

Turner next testified that he did obtain a search warrant for the hospital’s medical records

pertaining to Osborn, and the prosecutor moved to admit the hospital records into evidence. In a

sidebar, defense counsel conceded that the records themselves were admissible, but he objected

to Officer Turner testifying as to the actual contents of those records as Officer Turner was not a

medical professional qualified to interpret those records. The trial court agreed. The records

were admitted, but Officer Turner did not discuss the records’ contents. 4

         The prosecutor called the forensic chemist who tested the blood samples obtained by

Officer Turner as part of her employment with the state’s crime lab. She explained how she

tested Osborn’s blood sample to determine his B.A.C. and that the B.A.C. was determined to be




4
           In pertinent part, the hospital emergency room medical record includes the following entries: the “History
of Present Illness” section notes that, “[u]pon initial examination, the patient was uncooperative, combative, and was
unable to offer additional history.” The “Review of Systems” section notes that, “[a] 14-point review of systems was
unable to be performed as the patient was uncooperative.” And, the “Psych” section notes, “Patient uncooperative,
initially combative, due to intoxication.”

                                                          4
.161. The prosecutor then attempted to elicit testimony from the chemist that would explain the

contents of the hospital medical records. The hospital’s toxicology report measured the ethyl

alcohol on Osborn’s blood in milligrams per deciliter or “mg/dL” rather than the statutory

alcohol concentration levels in the blood determined by hundredths of one percent or more by

weight. See Sections 302.505, 302.510, and 577.012 RSMo. Defense counsel objected to the

chemist’s testimony based on a lack of foundation or demonstrated qualifications. The trial court

sustained defense counsel’s objection and the State made no further effort to provide testimony

or other evidence to convert the hospital records from the alcohol level measured in “mg/dL” to

the percentage of alcohol by weight set forth in Missouri statutes.5

         After the close of evidence, Osborn moved for acquittal and his motion was denied. The

jury convicted Osborn of both counts of assault in the second degree. In Osborn’s motion for a

new trial he once again argued that the court erred in allowing evidence of the warrantless blood

draw. The motion was denied, and this appeal was filed.

                                                   DISCUSSION

         We first address the state’s argument that this issue was not properly preserved for appeal,

and as such, that we should review the trial court’s actions under plain error review. Respondent

contends that when Osborn requested a continuing objection and referred back to his motion to

suppress, it was not clear that the court ruled on his objection. The state cites State v. Neighbors,

502 S.W.3d 745, 748 (Mo. App. 2016), for the proposition that a party must make a timely

objection and obtain a ruling on the objection to preserve the matter for appeal. While we


5
          The propriety of the trial court’s evidentiary ruling relating to the chemist’s testimony is not before us and
we thus offer no gratuitous commentary on the foundational requirements or witness competency necessary for the
state to properly admit evidence converting the mg/dL ethanol measurement from Osborn’s medical chart to the
percentage of alcohol by weight contemplated by Missouri statutes on the issue of intoxication.

                                                            5
concede that there is some ambiguity in the portion of the transcript cited by both parties, when

Osborn’s attorney later renewed his objection, the court clearly stated that the evidence would be

admitted “over the Defendant’s objection.” Osborn’s point is preserved for appeal.

       Osborn argues that the Fourth Amendment to the United States Constitution required law

enforcement to obtain a warrant prior to drawing his blood. Warrantless blood draws are not

allowed, he argues, in a search incident to an arrest, nor can Missouri’s implied consent law

allow for a warrantless blood draw in light of recent precedents from the United States Supreme

Court. Furthermore, although exigent circumstances may sometimes justify a warrantless blood

draw, the state did not present any evidence showing that exigent circumstances were present

here. We agree.

       “A trial court’s ruling on a motion to suppress will be reversed on appeal only if it is

clearly erroneous.” State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (citation omitted). “In

reviewing a trial court’s ruling on a motion to suppress, there must be substantial evidence to

support the ruling.” State v. Perry, 548 S.W.3d 292, 297 (Mo. banc 2018) (citation omitted).

“[T]he state bears both the burden of producing evidence and the risk of nonpersuasion to show

by a preponderance of the evidence that the motion to suppress should be overruled.” State v.

Carrawell, 481 S.W.3d 833, 837 (Mo. banc 2016) (citation omitted). We consider “the evidence

presented at both the suppression hearing and at trial to determine whether sufficient evidence

exists in the record to support the trial court’s ruling.” Perry, 548 S.W.3d at 297 (citation

omitted). We defer to the trial court’s credibility determinations and factual findings. Id. “When

‘there is little or no dispute about the facts, the question of whether the Fourth Amendment has

been violated is a question of law and is therefore reviewed de novo.” State v. Cromer, 186

S.W.3d 333, 341 (Mo. App. 2005) (citation omitted).

                                                  6
        "The Fourth Amendment of the U.S. Constitution… guarantees citizens the right to be

free from unreasonable searches and seizures." State v. Burnett, 230 S.W.3d 15, 18 (Mo. App.

2007) (citing Cromer, 186 S.W.3d at 343). Save a few “specifically established and well-

delineated exceptions,” the United States Supreme Court has held that “searches conducted

outside the judicial process, without prior approval by judge or magistrate are per se

unreasonable under the Fourth Amendment.” State v. McNeely, 358 S.W.3d 65, 68-69 (Mo. banc

2012) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)), aff’d by Missouri v. McNeely,

569 U.S. 141 (2013) (hereinafter “McNeely”), discussed infra.6

        In Schmerber v. California, the United States Supreme Court held that a blood draw is a

search under the Fourth Amendment requiring a warrant. 384 U.S. 757, 769-70 (1966).

However, the warrantless search in Schmerber was deemed lawful. Id. at 771. Because

Schmerber held that “special facts” justified the warrantless search, “it has since been read as an

application of the exigent circumstances exception to the warrant requirement.” State v.

McNeely, 358 S.W.3d at 70 (citation omitted); see also Birchfield v. North Dakota, 136 S. Ct.

2160 (2016) (discussed infra and holding that while breath tests may be administered without a

warrant as a search incident to an arrest, warrantless blood draws may not be justified as a search

incident to an arrest). In Missouri, our Supreme Court applied Schmerber to hold that although

“special facts” may justify a warrantless blood draw, something beyond the natural dissipation of

alcohol in a suspect’s bloodstream is necessary to constitute exigent circumstances. State v.

McNeely, 358 S.W.3d at 74-75.


6
         Because this opinion discusses both State v. McNeely and the U.S. Supreme Court’s affirmance of the same
in Missouri v. McNeely, the short-form citation of “McNeely” will be reserved for the U.S. Supreme Court case.
Though we will generally cite the United States Supreme Court’s McNeely case on matters of federal law, we will
rely on State v. McNeely as authority on matters of state law.

                                                        7
       The United States Supreme Court affirmed our Supreme Court’s approach in Missouri v.

McNeely when it considered “whether the natural dissipation of alcohol in the bloodstream

establishes a per se exigency” sufficient for blood draws to be exempt from the warrant

requirement in DWI cases. 569 U.S. at 147. The United States Supreme Court recognized that

the “imminent destruction of evidence” is an exigent circumstance which may justify a

warrantless search. Id. at 149-50. And the Court acknowledged that because a person’s B.A.C.

drops steadily with the passage of time, evidence of intoxication in DWI cases is being

destroyed, minute by minute, by the body’s metabolic processes. Id. However, the Court

declined to declare this metabolic fact a per se exigency justifying warrantless blood draws in

DWI cases. Id. at 156. The Court noted that modern telecommunications and subsequent

changes in the law make it considerably easier for officers to seek warrants in short periods of

time. Id. In addition, because blood draws involve agents of the state “piercing” a suspect’s

skin, intimate privacy interests are implicated, militating against a per se exigency. Id. at 159.

Accordingly, the Court held officers should seek warrants before conducting blood draws

whenever possible, or present facts establishing that exigent circumstances, beyond the

destruction of evidence, excused them from the requirement to do so. Id. at 160.

       In the present case, during the suppression hearing, the state did not argue that exigent

circumstances excused Officer Turner from the requirement of seeking a warrant before

conducting a blood draw, and painfully absent from Officer Turner’s testimony is any mention of

why he failed to even attempt to obtain a search warrant during the hour that passed before he

again made contact with Osborn. Nor was there any evidence of exigency offered by the State at

trial. The record is thus void of any explanation for Officer Turner’s failure to attempt to secure

a warrant before ordering a blood draw from Osborn. The trial court’s denial of Osborn’s

                                                  8
motion to suppress, and its related admission of B.A.C. evidence at trial over Osborn's objection,

was clearly erroneous in light of the holdings in the McNeely cases.

         The state argues that the McNeely cases do not control the admission of B.A.C. evidence

from a warrantless blood draw because Missouri statutes control this issue. The state relies on

Sections 577.020 and 577.033 to argue that warrantless blood draws are authorized by Missouri’s

implied consent laws. In other words, the state argues that because consent is always an

exception to a warrantless search, Missouri's implied consent laws afford the consent required to

authorize a warrantless blood draw. This is the same - and only - argument the state made during

the hearing on the motion to suppress.

         Section 577.020 states that individuals operating vehicles on public roads are deemed to

have consented to “a chemical test or tests of the person’s breath, blood, saliva, or urine for the

purpose of determining the alcohol or drug content of the person’s blood” in the event they are

arrested on suspicion of driving while intoxicated or they are involved in a traffic accident

involving a “readily apparent serious injury” or fatality.7 Section 577.033 states:

         Any person who is dead, unconscious or who is otherwise in a condition rendering him
         incapable of refusing to take a test as provided in sections 577.020 to 577.041 shall be
         deemed not to have withdrawn the consent provided by section 577.020 and the test or
         tests may be administered.

The plain language of these statutes deems consent to have been afforded for a warrantless blood

draw from an unresponsive subject. That does not, however, insulate the statutes from

constitutional scrutiny.




7
          Section 577.020 presents other situations when consent is implied which we omit due to their irrelevance to
this case.

                                                         9
       It is true that Section 577.033 has been previously cited with approval to affirm a criminal

conviction based in part on the admission of blood-alcohol evidence from a warrantless blood

draw taken from an unresponsive subject. See State v. Clark, 55 S.W.3d 598 (Mo. App. 2001)

(rev’d on other grounds by Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008)). We agree with

Osborn that the holding in Clark is suspect, in light of the McNeely cases and an even more

recent case, Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

       In Birchfield, the United States Supreme Court considered, in the context of implied-

consent laws, whether motorists could be subject to criminal penalties for refusing to consent to

B.A.C. tests. The Court concluded “that motorists cannot be deemed to have consented to

submit to a blood test on pain of committing a criminal offense.” 136 S. Ct. at 2186. Birchfield

did not declare implied consent laws unconstitutional, and did not directly consider whether

implied consent laws can be relied on to justify warrantless blood draws from unresponsive

subjects on the theory of statutory consent. However, we deem it probative that the Supreme

Court, in reiterating its McNeely holding, stated that warrantless blood draws “always require

case-by-case determinations,” Id. at 2180 (emphasis added), suggesting strongly that per se

reliance on implied consent statutes to overcome the lack of a warrant will not pass constitutional

muster. In doing so, the Court was careful to differentiate between reliance on implied consent

laws to invoke civil versus criminal penalties:

       It is well established that a search is reasonable when the subject consents, and that
       sometimes consent to a search need not be express but may be fairly inferred from
       context. Our prior opinions have referred approvingly to the general concept of implied-
       consent laws that impose civil penalties and evidentiary consequences on motorists who
       refuse to comply. Petitioners do not question the constitutionality of those laws, and
       nothing we say here should be read to cast doubt on them.

       It is another matter, however, for a State not only to insist upon an intrusive blood test,
       but also to impose criminal penalties on the refusal to submit to such a test. There must

                                                  10
        be a limit to the consequences to which motorists may be deemed to have consented by
        virtue of a decision to drive on public roads.

136 S. Ct. 2160, 2185 (citations omitted) (emphasis added).

        We construe Birchfield to require us to reject the state's argument that Missouri's implied

consent laws permit warrantless blood draws from unresponsive subjects in criminal cases, in the

absence of evidence establishing an exigent circumstance. Though our own Supreme Court has

not directly addressed this issue, it is noteworthy that in State v. McNeely, 358 S.W.3d at 75 n. 9,

the Court held that “[b]ecause the warrantless blood draw in this case was a violation of

Defendant’s Fourth Amendment right to be free from unreasonable searches, there is no need to

address the State’s arguments based on Missouri’s implied consent law.” We also note that

other states have similarly concluded that warrantless blood draws from unresponsive drivers in

criminal cases cannot be summarily controlled by an informed consent statute. See, e.g., State v.

Romano, 369 N.C. 678 (2017) (citing Birchfield in holding that North Carolina’s implied consent

law cannot be used to justify the warrantless blood draw of an unresponsive motorist); State v.

Havatone, 389 P.3d 1251 (Ariz. 2017) (holding that case-specific exigent circumstances are

required for warrantless blood draws even when the “unconscious clause” of their law applies);

Bailey v. State, 338 Ga. App. 428 (Ga. Ct. App. 2016) (holding that Georgia’s implied consent

law does not justify warrantless blood draws of unconscious suspects), rev’d on other grounds by

Welbon v. State, 799 S.E.2d 793 (Ga. 2017). Accordingly, we hold that Section 577.033 does not

allow warrantless blood draws of unresponsive drivers in criminal cases unless exigent

circumstances are present as required by McNeely.8



8
         Our ruling has no bearing on cases addressing civil penalties where application of implied consent laws do
not implicate the 4th Amendment. See, e.g., Nace v. Director of Revenue, a driver's license revocation case, where

                                                        11
        The state alternatively argues that if we find that the warrantless blood draw violated the

Fourth Amendment, we should not impose the harsh remedy of the exclusionary rule. The state

cites the good faith exception, independent source rule, and inevitable discovery doctrine as

applicable exceptions to the exclusionary rule. The state further argues that the admission of the

blood draw was not sufficiently prejudicial to warrant a reversal. These arguments fail.

        We first address the good-faith exception to the exclusionary rule. The exclusionary rule

states that “all evidence obtained by searches and seizures in violation of the Constitution … is

inadmissible in state court.” State v. Grayson, 336 S.W.3d 138, 146 (quoting Mapp v. Ohio, 367

U.S. 643, 655 (1961)). “The rule is calculated to prevent, not to repair. Its purpose is to deter -

to compel respect for the constitutional guaranty in the only effectively available way - by

removing the incentive to disregard it.” Id. (quoting Elkins v. United States, 364 U.S. 206, 217

(1960)). The good-faith exception was initially used to ensure that “evidence obtained by police

officers in objectively reasonable reliance on a subsequently invalidated search warrant should

not be suppressed.” State v. Clampitt, 364 S.W.3d 605, 613 (Mo. App. 2012) (citing United

States v. Leon, 468 U.S. 897 (1984)). As good-faith conduct is not what the exclusionary rule

seeks to deter, the exception states that in certain situations, the rule need not be applied. The

exception has been expanded to include other, good-faith police conduct, such as when “searches

[are] conducted in objectively reasonable reliance on binding appellate precedent.” Id. (quoting

Herring v. United States, 555 U.S. 135, 142 (2009)). The state seeks this application, arguing

that Officer Turner was relying on Sections 577.020 and 577.033, collectively implying consent

to withdraw blood from an unresponsive subject.


we held that a driver who was unresponsive and unable to consent had not withdrawn consent pursuant to section
577.033. 123 S.W.3d 252 (Mo. App. 2003).

                                                       12
       The state’s argument is without merit. Beyond Clark, a 2001 decision, no appellate

opinion has held that implied consent laws supersede the application of the 4th Amendment.

Importantly, after Clark, the McNeely cases plainly held that warrantless blood draws are not

subject to a per se exigent circumstances argument, and instead, that each warrantless blood

draw must be supported by exigent circumstances determined on a case-by-case basis. In

addition, in State v. McNeely, our Supreme Court rejected an argument which relied on implied

consent laws that "police officers now may rely on the well settled principle that obtaining blood

from an arrestee on probable cause without a warrant and without actual consent does not offend

constitutional guarantees," noting the assertion "rests on a fundamental misreading of

Schmerber." 358 S.W.3d at 68, n. 2. There is no basis grounded in settled appellate law to

support affording Officer Turner's warrantless search protection from application of the

exclusionary rule based on the good faith exception.

        We finally turn to the independent source rule and the inevitable discovery doctrine. We

note that when our Supreme Court addressed both approaches to avoiding application of the

exclusionary rule, it stated that “the purpose of the exclusionary rule is to ensure that ‘the

prosecution is not to be put in a better position than it would have been if no illegality had

transpired.’" State v. Grayson, 336 S.W.3d 138, 151 (Mo. banc 2011) (quoting Nix v. Williams,

467 U.S. 431, 443 (1984)). “Conversely, the reason for the exceptions is to ensure that ‘the

prosecution is not put in a worse position simply because of some earlier police error or

misconduct.’" Id. These exceptions are not applicable here. Though the state offered hospital

records into evidence at trial which included a toxicology report measuring the ethanol present in

Osborn's blood in milligrams per deciliter, the trial court sustained Osborn's objections to further

discussion of the records by a chemist called by the state based on a lack of foundation or

                                                  13
demonstrated qualifications. As such, the state presented no evidence equating the toxicology

information in the medical records with its own B.A.C. report, including converting the

calculations within the exhibit into the levels required by the statutes. The state's failure to

alternatively demonstrate that Osborn's B.A.C. exceeded the legal limit, despite its awareness

that admission of the B.A.C. report was contested, is a matter of trial strategy, and not a scenario

that warrants application of the independent source rule or the inevitable discovery doctrine.

         We are thus left with the prejudicial nature of the evidence erroneously admitted.

“Errors in admitting evidence require reversal only when prejudicial to the point that they are

outcome-determinative.” State v. Johnson, 207 S.W.3d 24, 42 (Mo. Banc 2006). “A finding of

outcome-determinative prejudice expresses a judicial conclusion that the erroneously admitted

evidence so influenced the jury that, when considered with and balanced against all evidence

properly admitted, there is a reasonable probability that the jury would have acquitted but for the

erroneously admitted evidence." Id.

         Here, though there was evidence of Osborn’s severely erratic driving, an on-the-scene

witness who smelled the odor of beer coming from Osborn’s vehicle as he approached Osborn’s

vehicle, Osborn’s admission to drinking alcohol, and medical chart entries that reflect that

Osborn was uncooperative and combative due to intoxication, there was no properly admitted

evidence that was duplicative of the extremely prejudicial warrantless blood draw evidence.

Hence, we conclude that the poisonous presence of the improperly admitted warrantless blood

draw evidence was prejudicial beyond repair and, thus, outcome determinative.




                                                 14
                                        CONCLUSION

       The evidence of the warrantless blood draw was the product of an illegal search.

Accordingly, the trial court erred in overruling Mr. Osborn’s motion to suppress and permitting

the admission of the B.A.C. results relating to that illegal search. The judgment is reversed and

remanded for a new trial.




                                                     ____________________________________
                                                     Anthony Rex Gabbert, Judge


All concur.




                                                15
