State v. Shayna Zalcberg (A-41-16) (078308) Decided March 27, 2018

State v. Shayna Zalcberg (A-41-16) (078308)

 Decided March 27, 2018

FERNANDEZ-VINA, J., writing for the Court.

         In this case, the Court considers whether police officers violated the Fourth Amendment of the United
States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution when they took a sample of
defendant’s blood without a warrant during an investigation of alleged driving while intoxicated.

          On the night of July 27, 2011, the Freehold Township Police Department received a report of a motor
vehicle accident and dispatched officers to the scene. On their arrival, the officers determined that the accident was
serious and called emergency medical and fire personnel for assistance. The police secured the roadway so that no
other vehicles could approach the crash in order to render the situation less dangerous for the first responders.
Because the accident scene was on a major thoroughfare and the crash coincided with the first night of the heavily
trafficked Monmouth County Fair, several officers were deployed to block off access to the road and to direct
traffic. They continued to do so throughout the entirety of the accident investigation. All three occupants of
defendant’s vehicle were transported via helicopter to Jersey Shore Medical Center for treatment.

          Two of the emergency medical personnel expressed their concern to a police officer that defendant had
smelled of alcohol. Further, after the top of defendant’s vehicle had been removed, officers observed a miniature
bottle of an alcoholic beverage in the vehicle’s console. The officers concluded that there was probable cause to
believe that defendant had been driving while under the influence of alcohol. Because defendant was incapacitated
as a result of her injuries and therefore unable to undergo field sobriety tests, the officers decided that it would be
prudent to obtain a sample of defendant’s blood.

        At the time of the accident, it was common practice in the Freehold Township Police Department to take
blood samples in serious motor vehicle accidents. Warrants were then available telephonically under New Jersey
Court Rule 3:5-3(b), but none of the police officers present believed that a search warrant was required to obtain a
blood sample and none of them had been trained in obtaining one. Thus, there was no discussion about obtaining a
search warrant for the sample of defendant’s blood. An officer was dispatched to acquire the sample.

         The officer arrived at the hospital shortly thereafter and inquired into defendant’s location. The officer was
instructed that he would have to wait but was not given an estimate as to how long. About an hour later, the officer
was granted access to defendant and requested that a nurse obtain a sample of her blood. The nurse extracted the
blood sample and delivered it to the officer.

          A grand jury charged defendant with second-degree vehicular homicide, two counts of third-degree assault
by auto, and fourth-degree assault by auto. Defendant filed a pre-trial motion to suppress the results of the
warrantless blood test. The trial court granted defendant’s motion to suppress in a written opinion. After finding
that the officers had probable cause to obtain a blood sample, the judge held that the State failed to establish that an
exigency existed sufficient to constitute a recognized exception to the warrant requirement. The judge determined,
based upon the totality of the circumstances, that the only exigency the State could establish was the natural
metabolization of alcohol in defendant’s blood, which was alone insufficient to justify a warrantless blood draw
under Missouri v. McNeely, 
569 U.S. 141 (2013), and State v. Adkins, 
221 N.J. 300, 303 (2015). An Appellate
Division panel affirmed, substantially for the reasons expressed in the trial judge’s written decision. The Court
granted the State’s motion for leave to appeal. 
229 N.J. 249 (2017).

HELD: The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and
rendering the officer’s warrantless blood draw constitutional.

                                                           1
 1. A warrantless search is constitutionally invalid unless one of the few well-delineated exceptions to the warrant
requirement applies. The exigent-circumstances exception is frequently cited in connection with warrantless blood
draws. In Schmerber v. California, 
384 U.S. 757 (1966), the United States Supreme Court established that a compelled
taking of a blood sample for the purpose of alcohol-content analysis constitutes a search within the Fourth
Amendment’s framework. Approximately fifty years later, in McNeely, the Supreme Court clarified that “while the
natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it
does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.” 
569 U.S. at 156. (pp. 12-16)

2. Prior to McNeely, New Jersey, like many states, “provided de facto, if not de jure, support for law enforcement to
believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily
fluids in suspected driving-under-the-influence cases.” Adkins, 
221 N.J. at 303. Based on that pre-McNeely
understanding, the defendant in Adkins, suspected of drunk driving, was subjected to a warrantless blood test
following a single-car accident. Id. at 302. On appeal, the Court pronounced that McNeely’s directive—that “courts
must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s
natural dissipation of alcohol”—would receive “pipeline retroactivity.” Id. at 312, 317. The Court directed that
reviewing courts must “focus on the objective exigency of the circumstances that the officer faced in the situation”
and stated that the “potential dissipation of [blood-alcohol] evidence may be given substantial weight as a factor to
be considered in the totality of the circumstances.” Id. at 303 (emphases added). (pp. 16-18)

3. In State v. Jones, the Appellate Division determined that a warrantless blood draw was constitutional under the
totality of the circumstances. 
441 N.J. Super. 317, 321 (App. Div. 2015). Jones involved a defendant who caused a
three-vehicle accident at a heavily traveled intersection during rush hour. Several police officers, EMS personnel,
and firefighters arrived to manage the scene and tend to the occupants of the three vehicles. The defendant was
unconscious in her car; it took half an hour to remove her from her vehicle, at which time emergency personnel
smelled alcohol on her breath. One officer proceeded to the hospital to follow up on the defendant’s injuries. When
the defendant regained consciousness at the hospital, she displayed signs of intoxication, such as slurred speech and
inability to answer questions. Moreover, the defendant admitted to the officer that she had consumed alcohol
earlier. Approximately one hour and fifteen minutes after the accident occurred, a nurse drew a sample of the
defendant’s blood at the officer’s request. The officer did not seek a warrant before ordering the test because “he
was not required to” under standard procedure and had not received training on telephonic warrants. (pp. 18-21)

4. Here, defendant’s accident was a serious one that occurred on a busy state highway on the night of a nearby event
that drew unusually high traffic. Any delay in seeking to obtain defendant’s blood sample after the establishment of
probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police
resources—not a lack of emergent circumstances. The officers’ lack of awareness of any formal procedure through
which they could obtain a telephonic warrant, coupled with their belief that they did not need such a warrant,
suggests that there was no reasonable availability of a warrant. Accidents do not, per se, create objective exigency,
but the circumstances that accompany them may factor into a court’s exigency analysis. The facts of this case, in
totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established
telephonic warrant system, and the myriad duties with which the police officers present were tasked. “Substantial
weight” is also afforded to the “potential dissipation of” the alcohol in defendant’s blood. Adkins, 
221 N.J. at 303.
The warrantless blood draw did not violate defendant’s constitutional rights in this case. (pp. 21-23)

          The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings consistent with this opinion.

          JUSTICES ALBIN AND TIMPONE, DISSENTING, are of the view that the majority has not applied
the principles set forth in McNeely and stress that warrantless searches are presumptively invalid. Justices Albin
and Timpone add that a deferential standard of review should guide the Court in reviewing a suppression order. An
officer’s ignorance of the law does not justify the violation of a person’s federal constitutional rights, according to
Justices Albin and Timpone.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICES ALBIN and TIMPONE filed a separate, dissenting
opinion.