LARRY J. HOLLOWAY VS. TODD MCMANUS (C-0112-14, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 11, 2017
• Docket: A-4804-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4804-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SMIEJAN,

Defendant-Appellant.

Argued February 1, 2017 – Decided April 24, 2017

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 04-14.

Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary, of counsel and on the brief; Suzanne Axel, on the brief).

Kerry J. Salkin, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Salkin, on the brief).

PER CURIAM

On March 12, 2014, defendant William Smiejan, entered a guilty

plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50, after the municipal court denied his motion to suppress his blood alcohol

content (BAC) results. That decision was affirmed by a Law

Division judge on May 18, 2015. We now reverse and remand.

On April 17, 2013, the United States Supreme Court decided

Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d

696 (2013). The case stands for the proposition that "in drunk-

driving investigations, the natural dissipation of alcohol in the

blood stream does not constitute an exigency in every case

sufficient to justify conducting a blood test without a warrant."

Id. at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at 715.

In State v. Adkins, 221 N.J. 300 (2015), our Supreme Court

held "that McNeely's pronouncement on the Fourth Amendment's

requirements must apply retroactively to cases that were in the

pipeline when McNeely was issued." Id. at 303. The Court

explained that although the potential dissipation of alcohol in

the blood as a result of the body's processing of the chemical

over time "may be given substantial weight as a factor to be

considered in the totality of the circumstances[,]" it is only one

of many considerations regarding exigencies that may justify a

blood draw in the absence of consent or a search warrant. Ibid.

The Court remanded the case for the municipal court to take

testimony and render a decision on the issue of exigency. Id. at

317.

2 A-4804-14T3 It is undisputed that on January 16, 2013, in the middle of

the afternoon on a weekday, defendant was involved in an accident

in which he struck two parked cars. He was taken to the hospital

with lacerations to the face and a bloody nose. A sample of his

blood was taken without his consent or a search warrant.

Subsequent testing established his BAC at 0.286 percent.

Defendant suffers from a variety of physical and mental health

ailments related to a workplace explosion that occurred many years

prior. As a result of these conditions, his municipal court

attorney, who has since been disbarred, argued on sentencing that

he should be placed on a bracelet program. The municipal court

judge correctly denied the application since it is black-letter

law that alternatives to incarceration are not available by way

of sentence on a DWI conviction.

The municipal court judge also reasoned that despite the

McNeely decision, exigent circumstances existed because of the

delays inherent in the warrant application process. The only

evidence the court reviewed at the suppression hearing was police

and medical reports. No testimony was taken. The court heard

argument and considered briefs filed by counsel. Although the

judge agreed that McNeely applied because this case was already

in the pipeline, he held that "knowing what the process in New

3 A-4804-14T3 Jersey is or, frankly, in Hudson County in New Jersey[,]" exigency

existed.

In her May 18, 2015 written decision, the Law Division judge

on the de novo appeal agreed. See R. 3:23-8. She echoed the

municipal court judge's determination that the officers' actions

were reasonable given the difficulties inherent in the middle of

the afternoon in the middle of the week "for an officer to find

an assistant prosecutor, prepare a search warrant, and have a

judge sign off on the warrant [because it] would take a long enough

period of time to justify exigent circumstances." She went on to

state that

Issues surrounding the practicality of finding a prosecutor, and issuing telephonic warrants, were in this case, specific to the municipal court. The record reflects that the trial judge's own experience with such matters were weighed heavily in deciding whether there was exigency at the time [defendant]'s blood was drawn. Even if this [c]ourt might have reached a different conclusion, the trial court's findings should not be disturbed where they could have reasonably been reached on sufficient credible evidence. Giving deference to those findings of the trial judge which are substantially influenced by his opportunity to have the "feel" of the case, this [c]ourt finds that the trial court did not err in denying [defendant]'s [m]otion to [s]uppress.

4 A-4804-14T3 Now on appeal, defendant raises the following issues:

POINT I THE FORCIBLE SEIZURE OF BLOOD SAMPLES FROM MR. SMIEJAN WITHOUT HIS CONSENT OR A SEARCH WARRANT VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND, ACCORDINGLY, SUCH EVIDENCE MUST BE SUPPRESSED.

POINT II A PRE-McNEELY ANALYSIS COMPELS THAT THE EVIDENCE BE SUPPRESSED.

POINT III CONSIDERATIONS OTHER THAN McNEELY COMPEL EXCLUSION OF THE BLOOD EVIDENCE.

POINT IV THE COURT SHOULD PERMIT MR. SMIEJAN TO WITHDRAW HIS GUILTY PLEA.

POINT V MR. SMIEJAN'S CONVICTION MUST BE REVERSED BASED UPON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

This case was in the pipeline when McNeely was decided. We

thus address whether an adequate exigency existed excusing the

need to obtain consent or a search warrant. We conclude that the

Law Division judge erred in relying upon the municipal court

judge's past experience as a factual basis to find the existence

of an adequate exigency.

Speculation anchored on past experiences cannot rise to the

necessary threshold. The only fact of which the judge properly

took judicial notice was the fast dissipation of alcohol from the

blood attributable to the passage of time. See Adkins, supra, 221

5 A-4804-14T3 N.J. at 316 (quoting State v. Dyal, 97 N.J. 229, 239-40 (1984))

("one crucial consideration is that the body eliminates alcohol

at a rapid rate"). In this case, there were no meaningful factual

findings made by either the municipal court judge or the Law

Division judge. From that insufficient basis both judges drew

their legal conclusions, to which we owe no deference. See State

v. Watts, 223 N.J. 503, 516 (2015); State v. Vargas, 213 N.J. 301,

327 (2013).

The heart of McNeely is that the natural metabolization of

alcohol in the blood does not create a per se exigency for all

drunk-driving cases. The "exigency in this context must be

determined case-by-case based on the totality of the

circumstances." McNeely, supra, ___ U.S. at ___, 133 S. Ct. at

1556, 185 L. Ed. 2d at 702. In those cases in which an officer

can reasonably obtain either a warrant or a consent "without

significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so." Id. at ___, 133 S. Ct. at

1561, 185 L. Ed. 2d at 707. "[R]eviewing courts [must] focus on

the objective exigency of the circumstances that the officer faced

in this situation." Adkins, supra, 221 N.J. at 317. Accordingly,

a remand is necessary for a hearing as to whether the circumstances

warranted the admission of the blood draw in this case.

6 A-4804-14T3 Reversed and remanded for further proceedings consistent with

this opinion.

7 A-4804-14T3