                NOT FOR PUBLICATION WITHOUT THE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,
                                          June 23, 2015
v.                                      APPELLATE DIVISION

DONNA JONES,

     Defendant-Respondent.

________________________________________________________________

         Submitted April 1, 2014 - Decided July 29, 2014
         Remanded by Supreme Court May 12, 2015
         Resubmitted May 12, 2015 - Decided June 23, 2015

         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 Office 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), the United States Supreme Court considered
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.

     In this case, we granted leave to the State to appeal from

an order that suppressed the results obtained from a blood sample

taken from a drunk driving suspect without a warrant.       The facts

of the case are set forth in our opinion.       State v. Jones, 437

N.J. Super. 68 (App. Div. 2014).

     At the time of our decision, our Supreme Court had not yet

determined whether the rule announced in McNeely would be enforced

retroactively in New Jersey.    Although another panel of this court

had determined that McNeely should not be applied retroactively,

State v. Adkins, 433 N.J. Super. 479, 484-85 (App. Div. 2013),

rev'd and remanded, ___ N.J. ___ (2015), we found it unnecessary

for us to determine the retroactivity issue.        Jones, supra, 437

N.J. Super. at 77-78.      We reviewed the United States Supreme

Court's analysis in McNeely and discussion of its holding in


                                  2
                                                            A-000793-13T1
Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826,

1836, 16 L. Ed. 2d 908, 920 (1966) and concluded "the application

of   McNeely   to    the   facts   of   this   case"    did   not   warrant    the

suppression of the blood test results.                 Jones, supra, 437 N.J.

Super. at 75-78.

      We found McNeely's discussion of the proper weight to be

given to dissipation of alcohol instructive.

           [T]he 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 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).]

           [Id. at 78-79.]

      We further reviewed McNeely's description of

           the special facts considered in the Schmerber
           Court's analysis which, the [McNeely] Court

                                        3
                                                                       A-000793-13T1
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.

     [Id. at 80 (quoting McNeely, supra,
     ___ U.S. at ___, 133 S. Ct. at 1559-
     60, 185 L. Ed. 2d at 705-06)
     (internal citations omitted).]



                      4
                                                 A-000793-13T1
    We described the "salient points" to be applied to our

analysis:

            [T]he 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; and that such additional delay
            will "threaten" 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.

            [Id. at 79.]

    We concluded:

            [T]he "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.

            [Id. at 81.]

    Thereafter, our Supreme Court reversed the Appellate Division

decision in Adkins, supra, and held that the McNeely totality of

the circumstances analysis would be given pipeline retroactivity

                                  5
                                                             A-000793-13T1
to all blood draws from suspected drunk drivers.   State v. Adkins,

___ N.J. ___, ___ (2015) (slip. op. at 26).        The Court held

further:

           [L]aw enforcement should be permitted on
           remand in these pipeline cases to present to
           the court their basis for believing that
           exigency was present in the facts surrounding
           the evidence's potential dissipation and
           police response under the circumstances to the
           events involved in the arrest. Further, the
           exigency in these circumstances should be
           assessed in a manner that permits the court
           to ascribe substantial weight to the perceived
           dissipation that an officer reasonably faced.
           Reasonableness of officers must be assessed
           in light of the existence of the McNeely
           opinion. But, in reexamining pipeline cases
           when police may have believed that they did
           not have to evaluate whether a warrant could
           be obtained, based on prior guidance from our
           Court that did not dwell on such an
           obligation, we direct reviewing courts to
           focus on the objective exigency of the
           circumstances that the officer faced in the
           situation.

           [Id. at 32.]

     In the interim, defendant filed a motion in the Supreme Court

for leave to appeal from our decision as within time.       Following

its decision in Adkins, the Court summarily remanded this appeal

to us for reconsideration in light of Adkins.

     We have reviewed the facts of this case in light of Adkins

to determine whether the situation faced by the officer presented

an "objective exigency."   As we noted in our earlier opinion, this

was not a routine motor vehicle stop.        The exigency of the

                                 6
                                                            A-000793-13T1
circumstances did not depend solely upon the fact that alcohol

dissipates in the blood.   Defendant drove her vehicle into a car

stopped at a traffic light, propelling it into a third car in

front of it at approximately 7:00 p.m. at a busy intersection.

Jones, supra, 437 N.J. Super. at 71.         Eleven police officers, at

least two Emergency Medical Service (EMS) vehicles and four EMS

personnel, two fire trucks and an unknown number of firefighters

responded to the accident scene.        Ibid.     Defendant was in her

vehicle unconscious and bleeding.      Ibid.     It took approximately

one-half hour to extricate her from her heavily damaged car. Ibid.

Both defendant and an occupant from one of the other vehicles, who

was injured in the accident, were taken to the hospital for

treatment.   Id. at 72.    Defendant did not regain consciousness

until she was at the hospital.       Ibid.    The investigation at the

accident scene took several hours.     Ibid.     The damage caused to a

nearby building struck by defendant after hitting the vehicle

raised a concern that the building might collapse.          Id. at 71.

The blood sample from defendant was drawn by a nurse approximately

one hour and fifteen minutes after police responded to the accident

scene and, upon testing, had a blood alcohol content of 0.345.

Id. at 72.

     Viewing the circumstances here objectively, we are satisfied

the officer "might reasonably have believed that he was confronted


                                 7
                                                              A-000793-13T1
with an emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened 'the destruction of

evidence[.]'"   Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at

1835, 16 L. Ed. 2d at 919-20 (citation omitted).        Under the

totality of the circumstances analysis required by Adkins, we find

no reason to disturb our prior decision reversing the order that

suppressed the results of the blood sample analysis.




                                8
                                                         A-000793-13T1
