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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JIMMIE DALE, | ) |
| ) Court of Appeals No. A-9834 | |
| Appellant, | ) Trial Court No. 3PA-05-02725 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2219 June 12, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Christine S. Schleuss, Law
Office of Christine Schleuss, Anchorage, for
the Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Jimmie Dale drove his truck off the road and down a 100-
foot embankment, causing serious physical injury to the two
passengers in his car. Dale was charged with driving under the
influence,1 driving while his license was suspended,2 two counts
of first-degree assault3 against the two passengers, two counts
of third-degree assault4 against the same passengers, and failing
to remain on the scene and render aid after a motor vehicle
accident.5 Dale moved to suppress the results of a blood test
from a blood sample that the police required him to provide at
the hospital after the accident. Dale argued that because his
blood was taken without his consent and without a search warrant,
it was taken in violation of his right to be free from
unreasonable searches and seizures under the United States and
Alaska Constitutions.6
Superior Court Judge Eric Smith denied Dales motion to
suppress. Although Judge Smith concluded that there was enough
time for the investigating trooper to call a magistrate and
obtain a warrant, he held that exigent circumstances exist as a
matter of law when an officer has sufficient probable cause under
AS 28.35.031(g) and State v. Blank7 to search for intoxicants in
a persons body. We affirm Judge Smiths decision that exigent
circumstances existed as a matter of law.
Factual and procedural background
On October 4, 2005, at approximately 10:45 p.m., Dale
drove off the road and down a 100-foot embankment in Palmer.
There were two women in the truck with Dale Lori Osborn and Leah
Bradford. Alaska State Trooper Gregory Pealatere and Sergeant
Troy Shuey responded to the scene. By the time they arrived,
emergency medical personnel were already at the scene. They told
Trooper Pealatere that the women in the car had been seriously
injured and had stated that Jimmie Dale was the driver of the car
and had left on foot. Sergeant Shuey found Dale a short distance
away. Dale was swaying as he talked to Sergeant Shuey, his
speech was slurred, and he had bloodshot, watery eyes. Sergeant
Shuey could smell alcohol on Dale and was certain that [Dale] had
been drinking alcohol at some point during the evening. Dale was
taken to the hospital with Osborn and Bradford.
Trooper Pealatere and Sergeant Shuey investigated and
documented the scene of the accident. After investigating the
scene of the accident, Trooper Pealatere proceeded to the
hospital, where he interviewed Bradford at about 1:04 a.m. The
trooper estimated that the interview with Bradford lasted about
five to ten minutes. At some point in the next half hour,
Trooper Pealatere spoke with Sergeant Shuey, and they determined
that Dale was intoxicated and was the driver of a vehicle that
had been involved in an accident that caused serious physical
injury to the passengers, and that they had probable cause to
arrest him at that time. Sergeant Shuey instructed Trooper
Pealatere to get a blood sample from Dale, by force if necessary.
Sergeant Shuey told Trooper Pealatere that a warrant was not
necessary because AS 28.35.031(g), the implied-consent statute,
authorized the blood draw, so Trooper Pealatere did not attempt
to obtain a warrant before instructing the hospital staff to take
a blood sample from Dale. The blood sample was taken around 2:00
a.m. The results indicated that Dale had a blood-alcohol level
between .07 and .08 when he was tested.
Before trial, Dale moved to suppress the evidence of
the blood test, contending that it was taken in violation of his
constitutional right to be free from unreasonable searches and
seizures. After an evidentiary hearing at which Trooper
Pealatere testified, Judge Smith issued an order denying Dales
motion to suppress. Judge Smith found that Trooper Pealatere had
enough time to call a magistrate, that he probably could have
obtained a search warrant by telephone in about twenty to thirty
minutes, and that, had he done so, Dales blood probably would
have been drawn at about the same time. However, Judge Smith
found that exigent circumstances existed as a matter of law and
the police accordingly did not have to obtain a warrant before
having Dales blood drawn. He therefore denied Dales motion to
suppress the results of the blood test.
A jury convicted Dale of all of the charges. Dale
appeals Judge Smiths denial of his motion to suppress. He asks
this court to reverse all of his convictions except his
conviction for driving while his license was suspended.
Legal background of the question whether exigent
circumstances exist as a matter of law in blood-alcohol
cases
We begin our legal analysis with Schmerber v.
California,8 a case decided by the United States Supreme Court in
1966. Schmerber upheld the seizure of blood without a warrant
under the exigent circumstances exception to the warrant
requirement. Schmerber has led to two opposing interpretations
by various state supreme courts. Some states have concluded that
Schmerber holds that investigating officers are never required to
obtain a warrant when sufficient probable cause exists in
suspected drunk-driving cases and the method used to extract the
suspects blood is reasonable.9 Other states have interpreted
Schmerber to require a case-specific analysis, taking into
consideration the totality of the circumstances in determining
whether exigent circumstances exist, before the police can seize
a persons blood without a warrant.10
In the leading Alaska case on this subject, Blank v.
State,11 the Alaska Supreme Court declined to decide which
interpretation of Schmerber was correct.
Schmerber v. California
In Schmerber, the United States Supreme Court held that
a compulsory blood test is a seizure covered by the Fourth
Amendment.12 Schmerber was convicted of DUI after he was
involved in a single-car accident and transported to the
hospital.13 At the hospital, Schmerber was arrested and the
police ordered a blood test, which revealed that Schmerber had
been drinking.14 After holding that the blood test implicated
Schmerbers Fourth Amendment rights, the United States Supreme
Court went on to analyze whether the police were justified in
requiring [Schmerber] to submit to the blood test, and whether
the means and procedures employed in taking his blood respected
relevant Fourth Amendment standards of reasonableness.15
Although Schmerber had been placed under arrest before
his blood was drawn, the Supreme Court concluded that the mere
fact of a lawful arrest does not end our inquiry.16 The Court
noted that the justifications for searches incident to a lawful
arrest had little applicability with respect to searches
involving intrusions beyond the bodys surface, and held that
[t]he interests in human dignity and privacy protected by the
Fourth Amendment require a clear indication that evidence of a
crime will be found before such an intrusion can be justified.17
The Supreme Court went on to discuss the warrant
requirement. Noting that search warrants are normally required
for searches of homes, the Court held that absent an emergency,
no less could be required where intrusions into the human body
are concerned.18 The Court noted that the purpose of the warrant
requirement to ensure that the decision to search is made by a
neutral magistrate is indisputable and great in the context of
intrusions into a persons body.19
Nevertheless, the Supreme Court went on to find that
the exigent circumstances exception applied in Schmerbers case:
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 petitioners
arrest.[20]
As noted above, this language has led to two interpretations.
The first interpretation is that, because the percentage of
alcohol in the blood begins to diminish shortly after drinking
stops, this circumstance alone creates an exigency. The other
interpretation is that the State must show, under a totality of
the circumstances test, that an exigency existed in a specific
case. In the second approach, the fact that the percentage of
alcohol in the blood is diminishing is merely one factor to
consider in determining whether there were exigent circumstances.
Alaska Authority: Blank v. State
In Blank v. State,21 the Alaska Supreme Court
interpreted AS 28.35.031(g), which provides that a person who
operates a motor vehicle is considered to have given consent to a
chemical test of his breath, blood, and urine if he is involved
in a motor vehicle accident that causes death or serious physical
injury to another person.22
The supreme court construed AS 28.35.031(g) narrowly in
order to avoid constitutional problems.23 The court held that AS
28.35.031(g) is constitutional in context of warrantless searches
for breath or blood in accident cases involving death or serious
physical injury when probable cause to search exists and the
search falls within a recognized exception to the warrant
requirement, such as the exigent circumstances exception.24
Thus, the supreme court construed AS 28.35.031(g) to incorporate
the requirements outlined in Schmerber.
The court declined to decide whether exigent
circumstances justified the warrantless breath test in Blank.25
It remanded the case for the superior court to make that
determination.26 While noting that [m]any courts have implicitly
or explicitly held that the dissipation of alcohol always creates
sufficient exigency to dispense with the warrant requirement, the
court declined to address that question because no lower court
[had] yet reached the issue whether exigent circumstances
actually justified [the] search [in this case].27
Justices Matthews and Carpeneti dissented, stating that
they would hold that exigent circumstances existed as a matter of
law, but only when, as here, the search in question [was] no more
intrusive than a breath test.28 After citing numerous cases from
other jurisdictions, the dissenting justices outlined four
reasons for their position: (1) the physiological fact that the
body steadily and rapidly eliminates alcohol; (2) the ease of
applying such a bright-line rule, as opposed to the difficulty of
determining whether a warrant application might have been
prepared and presented to a judge in time for a warrant to have
issued and a test conducted before alcohol levels were diminished
beyond the limits of reliable testing; (3) the categorical
approach to body alcohol evidence under an exigent circumstances
exception used by the court in Anchorage v. Geber;29 and (4) the
fact that breath searches may be issued without a case-by-case
exigency determination in garden variety drunk driving cases
under AS 28.35.031(a).30 The dissent also quoted the Court of
Appeals for the Fourth Circuit, which noted that [s]ociety has a
recognized interest in protecting its citizens from drunk
drivers, and that [b]reathalyzer tests cause a lesser intrusion
than blood tests.31
Dale argues that the majority opinion in Blank requires
a fact-specific analysis of whether exigent circumstances existed
in his case. We, however, think another explanation is more
likely. Rather than decide a difficult constitutional issue upon
which courts were split, the supreme court remanded the case for
the trial court to determine whether there were exigent
circumstances for obtaining the breath test in Blanks case. If
the lower court determined that exigent circumstances existed,
there would be no need to decide the constitutional issue.
We also note that the dissent in Blank, although
advocating the view that exigent circumstances existed as a
matter of law, did a balancing test in which it emphasized the
minimal intrusion caused by a breath test as opposed to a blood
test.
Why we conclude that there were exigent circumstances
here as a matter of law
In Dales case, Judge Smith concluded that there was
enough time for the investigating trooper to call a magistrate
and obtain a warrant before drawing Dales blood. We therefore
find ourselves confronted with the constitutional issue that the
supreme court did not have to decide in Blank. When a police
officer has probable cause to believe that a person was operating
a motor vehicle that was involved in an accident that caused
death or serious physical injury to another person, and has
probable cause to believe that the person was operating the motor
vehicle while under the influence of drugs or alcohol, can that
officer require the person to provide a sample of his blood? In
other words, can an officer constitutionally require a suspect to
provide a blood sample under AS 28.35.031(g) without first
obtaining a warrant or showing case-specific exigent
circumstances apart from the fact that blood-alcohol evidence
dissipates over time?
We have examined many cases that mention or discuss
this issue, but we focus on one recent case, State v. Shriner,32
in answering this question. In that case, the defendant, while
highly intoxicated, caused a motor-vehicle accident and was
charged under a Minnesota statute that criminalized causing
injury to another person by operating a motor vehicle with an
alcohol concentration of .08 or more as measured within two hours
of the time of driving or operating the vehicle negligently while
under the influence of alcohol.33 The Minnesota Supreme Court
held that:
[W]hen [law enforcement] officers have
probable cause to believe a defendant
[violated the statute], it is important that
the defendants blood be tested within 2 hours
of the accident causing injury to or the
death of another. ... The rapid, natural
dissipation of alcohol in the blood creates
single-factor exigent circumstances that will
justify the police taking a warrantless,
nonconsensual blood draw from a
defendant ... .[34]
In reaching this conclusion, the Minnesota Supreme
Court carefully analyzed Schmerber and other opinions. The court
concluded that its decision was in accord with the view of a
majority of the courts that had considered the issue.35 The
court also considered the burden on law enforcement of obtaining
a warrant:
Further, requiring law enforcement to
consider other factors places an unreasonable
burden on law enforcement. For instance,
though the officer may be familiar with the
area in which the accident occurred, the
officer has no control over how long it would
take to travel to a judge or the judges
availability. The officer also may not know
the time of the suspects last drink, the
amount of alcohol consumed, or the rate at
which the suspect will metabolize alcohol.
Finally, an officer cannot know how long it
will take to obtain the blood sample once the
suspect is brought to the hospital. Under a
totality of the circumstances test, an
officer would be called upon to speculate on
each of these considerations and predict how
long the most probative evidence of the
defendants blood alcohol level would continue
to exist before a blood sample was no longer
reliable.[36]
The court also directly addressed the possibility of obtaining a
telephonic warrant:
Shriner also contends that police may obtain
telephonic warrants quickly and, therefore,
the police can easily obtain the relevant
evidence they need with a warrant. Put
another way, Shriner contends that the use of
telephonic warrants makes any exigency
disappear because the police will be able to
obtain a blood sample well before the
evidence is entirely gone. But the officer
facing the need for a telephonic warrant
cannot be expected to know how much delay
will be caused by following the procedures
necessary to obtain a warrant. And during the
time taken to obtain a telephonic warrant, it
is undisputed that the defendants body is
rapidly metabolizing and dissipating the
alcohol in the defendants blood. We do not
believe that the possibility of obtaining a
telephonic warrant is sufficient to overcome
the single-factor exigent circumstances of
the rapid dissipation of alcohol in the
defendants blood in this case.[37]
We agree with the reasoning of the Minnesota Supreme Court in
Shriner.
Dales case, likewise, is not about a routine arrest for
driving under the influence. Alaska Statute 28.31.031(g) only
authorizes law enforcement to obtain a blood sample in
circumstances that involve a motor-vehicle accident that causes
death or serious physical injury. We believe that the Minnesota
Supreme Court in Shriner made a strong argument for concluding
that, when a case involves death or serious physical injury,
exigent circumstances exist as a matter of law.
Conclusion
We accordingly conclude that Judge Smith correctly
ruled that exigent circumstances authorized the police to obtain
a nonconsensual, warrantless sample of Dales blood. Judge Smith
did not err in denying Dales motion to suppress.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 28.35.030(a).
2 AS 28.15.291(a)(1).
3 AS 11.41.200(a)(1).
4 AS 11.41.220(a)(1)(B).
5 AS 28.35.050(a); AS 28.35.060(a).
6 U.S. Const. amend. IV; Alaska Const. art. I, 14.
7 90 P.3d 156 (Alaska 2004) (construing AS 28.35.031(g) to
include the three requirements outlined in Schmerber v.
California, 384 U.S. 757, 770-72, 86 S. Ct. 1826, 1835-36, 16 L.
Ed. 2d 908 (1966): (1) probable cause to search, (2) a
recognized exception to the warrant requirement, and (3)
reasonable procedures).
8 384 U.S. 757, 86 S. Ct. 1826.
9 See, e.g., People v. Ritchie, 181 Cal. Rptr. 773, 774
(Cal. App. 1982) (noting in dicta that the dissipation of blood
alcohol evidence over time is a special factor that triggers ...
warrantless intrusion into the body); State v. Entrekin, 47 P.3d
336, 348 (Haw. 2002) (stating that exigent circumstances were
clearly present because alcohol dissipates from bloodstream);
State v. Woolery, 775 P.2d 1210, 1212 (Idaho 1989) (stating that
dissipation of alcohol in blood creates an inherent exigency
which justifies [a] warrantless search); DeVaney v. State, 288
N.E.2d 732, 735 (Ind. 1972) (holding that exigent circumstances
were present because evidence of blood-alcohol content could
disappear during the time necessary to obtain a warrant); State
v. Baker, 502 A.2d 489, 493 (Me. 1985) (The bodily process that
eliminates alcohol also provides exigent circumstances obviating
the need to obtain a warrant prior to administering a blood
test.); Gregg v. State, 374 So. 2d 1301, 1303 (Miss. 1979)
(finding that an emergency situation existed because of potential
for loss of critical evidence); State v. Lerette, 858 S.W.2d 816,
819 (Mo. App. 1993) (holding that exigent circumstances were
created by dissipation of blood-alcohol content in time needed to
obtain a warrant); State v. Ravotto, 777 A.2d 301, 315 (N.J.
2001) (stating that the dissipating nature of blood-alcohol
creates an exigency justifying a warrantless search);
Commonwealth v. Anderl, 477 A.2d 1356, 1364 (Pa. Super. 1984)
(upholding warrantless breathalyzer test as valid either as a
search incident to arrest ... or a search necessitated by exigent
circumstances; i.e., the evanescent nature of the alcohol in
[defendants] bloodstream); State v. Humphreys, 70 S.W.3d 752, 760-
61 (Tenn. Crim. App. 2001) (Based upon the fact that evidence of
blood alcohol content begins to diminish shortly after drinking
stops, a compulsory breath or blood test, taken with or without
the consent of the donor, falls within the exigent circumstances
exception to the warrant requirement.); Aliff v. State, 627
S.W.2d 166, 170 (Tex. Crim. App. 1982) (holding that warrantless
blood draw did not violate the defendants constitutional rights
and citing as only exigency the fact that alcohol in blood is
quickly consumed and the evidence would be lost forever); State
v. Bohling, 494 N.W.2d 399 (Wis. 1993) (holding that the
dissipation of alcohol from a persons blood stream constitutes a
sufficient exigency to justify a warrantless blood draw).
10 See, e.g., People v. Shepherd, 906 P.2d 607 (Colo.
1995) (holding that exigency exists when time has elapsed while
the driver is transported to the hospital and the investigating
officer is detained at the accident scene); State v. Johnson, 744
N.W.2d 340, 344 (Iowa 2008) (holding that blood-alcohol
dissipation does not create a per se exigency with respect to the
warrant requirement); State v. Moylett, 836 P.2d 1329, 1335 (Or.
1992) (relying mainly on the Oregon Constitution in declining to
hold that blood-alcohol dissipation creates a per se exigency);
Bristol v. Commonwealth, 636 S.E.2d 460, 464 (Va. 2006) (holding
that blood alcohol dissipation was not sufficient by itself to
create an exigent circumstances exception to Virginia statutory
requirement that the driver be arrested within three hours of the
offense).
11 90 P.3d 156.
12 Schmerber, 384 U.S. at 767, 86 S. Ct. at 1834.
13 Id. at 758 n.2, 86 S. Ct. at 1829 n.2.
14 Id. at 758-59, 86 S. Ct. at 1829.
15 Id. at 768, 86 S. Ct. at 1834.
16 Id. at 769, 86 S. Ct. at 1835.
17 Id. at 769-70, 86 S. Ct. at 1835.
18 Id. at 770, 86 S. Ct. at 1835.
19 Id.
20 Id. at 770, 86 S. Ct. at 1835-36 (quoting Preston v.
United States, 376 U.S. 364, 367, 84 S. Ct. 882, 883, 11 L. Ed.
2d 777 (1964)).
21 90 P.3d 156.
22 Id. at 161-62. Serious physical injury is defined in
AS 28.90.990(a)(24) and AS 11.81.900(b)(56) as:
[P]hysical injury caused by an act performed under
circumstances that create a substantial risk of
death ... or physical injury that causes serious
and protracted disfigurement, protracted
impairment of health, protracted loss or
impairment of the function of a body member or
organ, or that unlawfully terminates a pregnancy.
23 Blank, 90 P.3d at 162.
24 Id.
25 Id. at 164.
26 Id.
27 Id. at 164.
28 Id. at 165 (Matthews, J., dissenting).
29 592 P.2d 1187 (Alaska 1979).
30 Blank, 90 P.3d at 164-67 (Matthews, J., dissenting).
31 Id. at 167 (quoting United States v. Reid, 929 F.2d
990, 994 (4th Cir. 1991)).
32 751 N.W.2d 538 (Minn. 2008).
33 Id. at 542 n.4 (quoting Minn. Stat. 609.21(1-2b)
(2006)).
34 Id. at 545 (footnotes omitted).
35 Id. at 547.
36 Id. at 549 (footnote omitted).
37 Id. (footnote omitted).
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