Peter Gregory Marcus v. Commissioner of Public Safety ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1322
Peter Gregory Marcus, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed April 20, 2015
Affirmed
Kirk, Judge
Otter Tail County District Court
File No. 56-CV-14-265
Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driver’s license. We affirm.
FACTS
At approximately 4:11 a.m. on October 20, 2013, Fergus Falls Police Officer
Kevin Sonstebo responded to a call from dispatch about a single-vehicle accident. When
Officer Sonstebo arrived at the scene of the accident, he observed an unattended vehicle
with extensive damage on the shoulder of the road with its engine running and its radio
playing. Debris, including beer cans, covered three of the four lanes of traffic. Inside the
vehicle, Officer Sonstebo observed more beer cans and smelled alcohol.
Officer Sonstebo did not see any possible occupants of the vehicle, so he and two
other officers who had arrived at the scene began searching the area. Five to six minutes
later, Officer Sonstebo found a man, later identified as appellant Peter Gregory Marcus,
lying on the shoulder of the road approximately 50 feet from the vehicle. Marcus was
breathing but unresponsive and Officer Sonstebo observed blood on his head and back,
leading him to believe that Marcus had skidded across the pavement. Officer Sonstebo
called for an ambulance.
Officer Sonstebo attempted to communicate with Marcus while they waited for the
ambulance to arrive, and Marcus eventually revived and became fairly coherent. Officer
Sonstebo asked Marcus if he was the driver of the vehicle, and Marcus responded, “Ah-
huh,” which Officer Sonstebo understood as “yes.” Officer Sonstebo asked Marcus if
there were any other occupants of the vehicle, and Marcus responded “uh-uh,” which
Officer Sonstebo understood to be “no.” Officer Sonstebo assisted the ambulance crew
in tending to Marcus as soon as they arrived at the scene. When the ambulance crew
rolled Marcus over, he exhaled and Officer Sonstebo smelled alcohol on Marcus’s breath.
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The ambulance crew placed Marcus in the ambulance and drove him to the hospital,
which was located approximately a mile and one-half to two miles from the site of the
accident. Officer Sonstebo followed behind the ambulance in his squad car while the
other two officers remained at the scene.
Officer Sonstebo arrived at the hospital at approximately 4:45 a.m. and found the
emergency room staff attempting to stabilize Marcus. Marcus was going in and out of
consciousness and was combative with the staff. Officer Sonstebo waited at the
emergency room while the staff provided medical care to Marcus. The staff eventually
informed Officer Sonstebo that Marcus would be airlifted to a hospital in Fargo, North
Dakota, immediately. Officer Sonstebo told the emergency room staff that he wanted to
read the implied-consent advisory and obtain a blood or urine test before Marcus was
airlifted.
At approximately 5:15 a.m., Officer Sonstebo read the implied-consent advisory to
Marcus, who appeared to be unconscious. Marcus did not respond at any time to the
advisory. Officer Sonstebo completed the implied-consent advisory at approximately
5:17 a.m., and an emergency room doctor withdrew a blood sample from Marcus.
Subsequent testing by the Minnesota Bureau of Criminal Apprehension revealed an
alcohol concentration of .20.
Respondent Minnesota Commissioner of Public Safety revoked Marcus’s driver’s
license under the implied-consent law, and Marcus petitioned for judicial review of the
revocation. At a hearing addressing Marcus’s petition, Officer Sonstebo testified that
“[d]ue to the exigent circumstances and the immediate transport of [Marcus] to another
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hospital, I didn’t feel that there was enough time to get a search warrant taken care of.”
He elaborated that “the time it would take for me to obtain that search warrant and the
medical staff wanting to transport him, he would be out of my jurisdiction by that time.”
The district court sustained the revocation of Marcus’s driver’s license, concluding
that Officer Sonstebo had probable cause to believe that Marcus was driving while
impaired, Marcus’s due process rights were not violated, and Officer Sonstebo’s
warrantless search of Marcus’s blood was justified under the exigent-circumstances
exception to the warrant requirement. This appeal follows.
DECISION
In reviewing a district court’s order sustaining the revocation of an individual’s
driver’s license, this court will not set aside a district court’s findings of fact unless they
are clearly erroneous. Gretsfeld v. Comm’r of Pub. Safety, 359 N.W.2d 744, 746 (Minn.
App. 1985). We give due regard to the district court’s opportunity to judge the credibility
of the witnesses. Id. We will overturn a district court’s conclusions of law only when the
district court “erroneously construed and applied the law to the facts of the case.” Dehn
v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).
The United States and Minnesota Constitutions prohibit warrantless searches and
seizures. U.S. Const. amend. IV; Minn. Const. art I, § 10. The collection and testing of a
person’s blood sample constitutes a search under the Fourth Amendment to the United
States Constitution and therefore requires a warrant or an exception to the warrant
requirement. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402,
1412-13 (1989); State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134
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S. Ct. 1799 (2014). A search is generally unreasonable unless it is conducted pursuant to
a warrant issued upon probable cause. Skinner, 489 U.S. at 619, 109 S. Ct. at 1414. But
the police do not need a warrant if the person who is the subject of the search consents to
the search. Brooks, 838 N.W.2d at 568. Another exception to the warrant requirement,
the exigent-circumstances exception, applies when “the exigencies of the situation makes
the needs of law enforcement so compelling that a warrantless search is objectively
reasonable under the Fourth Amendment.” Kentucky v. King, 131 S. Ct. 1849, 1856
(2011) (quotations omitted).
Under Minn. Stat. § 169A.51, subd. 1(a) (2014), “[a]ny person who drives,
operates, or is in physical control of a motor vehicle within this state . . . consents . . . to a
chemical test of that person’s blood, breath, or urine for the purpose of determining the
presence of alcohol . . . .” In addition, “[a] person who is unconscious or who is
otherwise in a condition rendering the person incapable of refusal is deemed not to have
withdrawn the consent provided by subdivision 1 and the test may be given.” Minn. Stat.
§ 169A.51, subd. 6. Marcus contends that he did not provide valid consent under Minn.
Stat. § 169A.51, subd. 6, because the statute violates the Fourth Amendment.
In State v. Wiehle, 287 N.W.2d 416, 418 (Minn. 1979), the Minnesota Supreme
Court considered whether the results of a blood test taken from an unconscious person
may be used in a license-revocation proceeding. In that case, Wiehle was involved in a
hit-and-run accident, and police officers who responded to the scene informed him that he
was under arrest. 287 N.W.2d at 417. As the officers were transporting Wiehle to the
police station, Wiehle became unconscious and was rushed to the hospital. Id. At an
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officer’s direction, a blood sample was taken from Wiehle, and subsequent testing
revealed an alcohol concentration of .157. Id. The commissioner of public safety
revoked Wiehle’s driver’s license, and the district court sustained the revocation. Id.
On appeal, the supreme court extended its holding in State v. Oevering, 268
N.W.2d 68 (Minn. 1978), to implied-consent proceedings. Id. at 418. In Oevering, the
supreme court concluded that a blood sample taken from an unconscious person may be
used in a criminal negligence case if there was probable cause and the failure to take the
sample immediately would result in the loss of the evidence. 268 N.W.2d at 69. The
Wiehle court concluded that the implied-consent law was constitutional because it
permits a police officer to take a blood sample from a driver when there is “an exigency
to preserve evidence, probable cause to support formal arrest, and a highly unobtrusive
search.” 287 N.W.2d at 418. The supreme court concluded that Wiehle’s statutory
consent remained continuous when he was unconscious and permitted use of the blood
sample obtained from him in the implied-consent proceeding. Id. at 419. But the
supreme court emphasized that the prerequisites of probable cause to arrest and an
exigency to preserve evidence must be met before the evidence is admissible. Id.
Recently, in Brooks, the Minnesota Supreme Court rejected Brooks’s argument
that the legislature does not have the power to imply someone’s consent to waive his
Fourth Amendment rights as a condition of granting him the privilege of driving in
Minnesota. 838 N.W.2d at 572. The supreme court stated that Brooks’s argument was
inconsistent with the United States Supreme Court’s decision in Missouri v. McNeely,
133 S. Ct. 1552 (2013), because
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[a]s the Supreme Court recognized in McNeely, implied
consent laws, which ‘require motorists, as a condition of
operating a motor vehicle within the State, to consent to
[alcohol concentration] testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense,’
are ‘legal tools’ states continue to have to enforce their drunk
driving laws.
Id. (quoting McNeely, 133 S. Ct. at 1566). The supreme court further stated that “[b]y
using this ‘legal tool’ and revoking a driver’s license for refusing a test, a state is doing
the exact thing Brooks claims it cannot do—conditioning the privilege of driving on
agreeing to a warrantless search.” Id.
Here, the record establishes that Marcus was unconscious at the time that Officer
Sonstebo read him the implied-consent advisory. Thus, Marcus did not withdraw his
consent to testing under Minn. Stat. § 169A.51, subd. 6. But, under Wiehle,
constitutional application of that statute requires probable cause to arrest and exigent
circumstances. Marcus does not challenge the district court’s conclusion that Officer
Sonstebo had probable cause to arrest him, but he contends that exigent circumstances
were not present.
In Schmerber v. California, 384 U.S. 757, 766-72, 86 S. Ct. 1826, 1833-36 (1966),
the United States Supreme Court considered whether a driver’s Fourth Amendment rights
were violated when a police officer directed a physician to withdraw his blood. In that
case, Schmerber was driving himself and a companion from a bowling alley where they
had been drinking when the vehicle skidded, crossed the road, and hit a tree. Schmerber,
384 U.S. at 758 n.2, 86 S. Ct. at 1829 n.2. Both Schmerber and his companion were
injured as a result of the crash and were transported to the hospital. Id. At the hospital, a
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police officer arrested Schmerber and directed a physician to withdraw a blood sample
from him. Id. at 758, 86 S. Ct. at 1829. Testing of the blood sample revealed that
Schmerber was intoxicated. Id. at 759, 86 S. Ct. at 1829. Schmerber objected to the
court’s receipt of evidence of the analysis of his blood because he argued that the blood
had been withdrawn in violation of his right not to be subject to unreasonable searches
and seizures under the Fourth Amendment. Id. The district court convicted Schmerber
of driving while under the influence, and the Appellate Department of the California
Superior Court affirmed. Id.
The United States Supreme Court affirmed Schmerber’s conviction. Id., 86 S. Ct.
at 1830. The Supreme Court reaffirmed the importance of a police officer obtaining a
search warrant before searching an individual’s body for evidence, but held that under the
particular circumstances of the case, the police 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.” Id. at 770, 86
S. Ct. at 1835 (quotation omitted). The Supreme Court noted that the percentage of
alcohol in the blood begins diminishing shortly after drinking stops and stated 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.” Id. at 770-71, 86 S. Ct. at 1836.
In McNeely, the United States Supreme Court held that the dissipation of blood-
alcohol levels does not create a per se exigency justifying a warrantless search. 133 S.
Ct. at 1561. Instead, the Supreme Court held that exigency must be determined on a
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case-by-case basis based on an examination of the totality of the circumstances. Id. at
1563. The Supreme Court stated that its conclusion was consistent with its decision in
Schmerber, noting that it had decided that case based on an examination of the totality of
the circumstances. Id. at 1559-60.
Here, the district court properly considered the totality of the circumstances before
concluding that exigent circumstances existed at the time Officer Sonstebo directed an
emergency room doctor to withdraw a blood sample. An examination of those
circumstances establishes that exigent circumstances justifying a warrantless withdrawal
of Marcus’s blood were present. When Officer Sonstebo first responded to the scene of
the accident at 4:11 a.m., he found Marcus unconscious and seriously injured after being
involved in a single-vehicle crash. While Officer Sonstebo waited with Marcus for the
ambulance crew to arrive, Marcus briefly became responsive. Officer Sonstebo helped
the crew move Marcus into the ambulance and then followed the ambulance to the
hospital. Once Officer Sonstebo arrived at the hospital at 4:45 a.m., he found Marcus
receiving treatment and going in and out of consciousness. The staff eventually informed
Officer Sonstebo that Marcus would be immediately airlifted to a hospital in a different
state. Based on that information, Officer Sonstebo read the implied-consent advisory to
Marcus at 5:15 a.m. At that point, approximately 30 minutes had passed since Officer
Sonstebo had arrived at the hospital and approximately one hour and four minutes had
passed since Officer Sonstebo responded to the call from dispatch about the accident.
Marcus argues that Officer Sonstebo had sufficient time to get a warrant while he
waited for the ambulance and at the hospital. But the record shows that Marcus was
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going in and out of consciousness while he waited for the ambulance, at one point
gaining enough awareness to interact with Officer Sonstebo. Marcus continued to go in
and out of consciousness once he arrived at the hospital. Officer Sonstebo could have
reasonably believed that Marcus would regain consciousness and be able to make a
decision about whether he consented to an alcohol-concentration test. Once the hospital
staff informed Officer Sonstebo that it needed to airlift Marcus to a different hospital in a
different state, Marcus was again unconscious. At that point, Officer Sonstebo could
have reasonably believed that he was confronted with an emergency and that it would not
be feasible to obtain a reliable blood test from Marcus after he was airlifted to another
state.
Accordingly, the district court did not err by concluding that exigent
circumstances justified the warrantless search of Marcus’s blood. Because exigent
circumstances and probable cause to arrest existed, Marcus’s Fourth Amendment rights
were not violated by the withdrawal of his blood under Minn. Stat. § 169A.51, subd. 6.
Affirmed.
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