EXIGENT CIRCUMSTANCES FOR AN OUI BLOOD DRAW, STATE V. MARTIN.
Posted by Edmund R. Folsom, Esq., October 28, 2018.
I. Background: OUI Breath and Blood Tests, The Search Warrant Requirement and Search Warrant Exceptions.
On October 23, 2018, Maine law on taking warrantless blood samples from OUI suspects was further developed in the case of State v. Martin, 2018 ME 144. As background, to prove an alcohol-based OUI charge, the State must prove that the person was under the influence or had an excessive alcohol level when the person drove. As time passes, a person’s body continually eliminates alcohol from the bloodstream. The more time that passes, the more alcohol is eliminated. Because of this, the State has an interest in capturing a sample of the person’s blood (or breath) relatively soon after the person stops driving. As discussed below, this notion of exigency in OUI cases has particular significance in relation to the protection of the 4th Amendment to the United States Constitution against “unreasonable searches and seizures.”
In most Maine OUI cases, police capture a sample of the person’s breath using an Intoxilizer breath-alcohol analysis machine. Ordinarily, it is much easier and more convenient for police to secure a breath sample than a blood sample. However, in some cases it is not possible to obtain a reliable breath sample, because of number of potential circumstances. In those cases, the State seeks a sample of the person’s blood.
a. No Search Warrant Required for Breath Samples, Search Warrant Required for Blood.
As the U.S. Supreme Court explained in Birchfield v. North Dakota, 579 U.S. __ , 136 S.Ct. 2160 (2016), when police seek a sample of a person’s blood, the 4th Amendment to the U.S. Constitution requires them to secure a search warrant unless a well-recognized exception to the search warrant requirement applies. On the other hand, the Birchfield Court explained, police do not need a search warrant to take breath samples. Taking breath samples from an arrested person falls under the well-recognized “search incident to lawful arrest” exception to the search warrant requirement. This means that any time a person is arrested, police are automatically allowed to take breath samples without any justification beyond the arrest itself. Because the search warrant requirement applies to the taking of blood samples, and because police are constantly looking for ways to avoid bothering with a search warrant, they often secure a blood sample without a warrant and seek to justify it under one of the well-recognized exceptions to the search warrant requirement.
b. Exceptions to the Search Warrant Requirement for Blood Samples – Consent, Probable Cause and Exigent Circumstances.
One of those well-recognized exceptions is valid consent to the search, so police will ask the person to consent. If the person doesn’t consent, police will read the person “duty to submit” warnings (otherwise known as “implied consent” warnings) to see if they can coerce the person to consent by warning of the duty to submit to a test, and further warning that if the person does not consent to a blood sample and is convicted of OUI, the person will be sentenced to a mandatory jail term for failing to consent. In State v. Lumunier-Fitzgerald, 2018 ME 85, Maine’s Law Court recently approved of this tactic, holding that Maine’s “duty to submit” warnings cannot render consent involuntary. Still, some people exercise their 4th Amendment right not to consent to a warrantless blood draw. In those cases, police who proceed to take a blood sample without a warrant need to find another well-recognized search warrant exception to hang their hats on. This brings us to the theory that Maine’s Law Court subscribed to for many years, that all OUI cases have a built-in exigent circumstance because of the dissipation of blood alcohol over time through biological processes.
A few years before Birchfield, the U.S. Supreme Court decided the case of Missouri v. McNeely, 569 U.S. 141 (2013). In McNeely, the Supreme Court rejected the theory that there is a built-in exigent circumstance that allows the warrantless taking of a blood sample in all OUI cases. The McNeely Court declared that although the natural dissipation of blood alcohol over time might create an exigent circumstance in a given case, it does not create exigent circumstances in all OUI cases. Combined, McNeely and Birchfield tell us that the 4th Amendment requires police to have a search warrant to take a blood sample and that if police do not have a search warrant they need to establish that a well-recognized search warrant exception applies. The well-recognized exception might be probable cause and exigent circumstances, but police who intend to rely on that exception must demonstrate that there were exigent circumstances present in the particular case that made it impracticable to secure a search warrant in time to preserve the evidence. The State can establish exigent circumstances by demonstrating, by a standard of more likely than not, that there was a compelling need to conduct the search and insufficient time to secure a search warrant.
II. How does State v. Martin Fit Into This Framework?
In State v. Martin, police took a blood sample from Christopher Martin after arresting him for OUI. About an hour passed between Martin’s traffic stop and his arrival at the Bangor Police Department for a breath test. Once Martin arrived at the station, the arresting officer attempted to conduct a 15-minute observation period, as required, before administering an Intoxlizer test. Martin belched during three separate attempts to conduct 3 separate observation periods. Each time Martin belched, the officer was required to start over. After Martin belched during the third attempted observation period, the officer decided an Intoxilizer test was not going to work and that he would have to secure a blood sample from Martin instead. At this point, about an hour and a half had passed since Martin’s traffic stop. Keep in mind that up to this point the officer intended to give Martin an Intoxilizer test, which the Supreme Court has declared is a valid search incident to arrest that requires no justification beyond the arrest itself, and certainly no search warrant. But an hour and a half after Martin stopped driving, the officer realized for the first time that he was not going to get a reliable breath test result from Martin. The clock was ticking. Instead of writing-up a search warrant affidavit and presenting it to a judge or complaint justice to get a search warrant, the officer simply proceeded to the hospital and had someone draw Martin’s blood.
The Martin opinion indicates that Martin acquiesced in the blood draw, but he might have acquiesced only because the officer led him to believe he had no choice in the matter. After the blood sample was drawn and the officer took Martin to the Penobscot County Jail, the officer received a call telling him there might be a problem with the blood sample. The person who drew it prepped the area with an alcohol swab instead of a forensic betadine swab, raising a question of sample contamination. So, the officer returned Martin to the hospital and another blood sample was secured something over 2 hours after Martin’s initial traffic stop.
The issue on appeal was whether the analysis of the second warrantless blood draw should have been suppressed because of a 4th Amendment violation. The opinion doesn’t discuss whether the voluntary consent exception to the search warrant requirement might have applied, but the judge who denied the motion to suppress did not deny it on a voluntary consent theory. Maybe that’s because the officer led Martin to believe he had no choice but to go along with the blood draws. In any event, the judge who heard the motion denied it on grounds that the probable cause and exigent circumstances exception to the search warrant requirement applied. The Martin opinion does not discuss what became of the first blood sample, but involved counsel informs this writer that the officer threw it away once he obtained the second sample.
The Law Court upheld the lower court’s ruling. In their view, the decision was supported by a record that showed about an hour and a half had passed from the traffic stop to the point the officer abandoned attempts to secure a breath test result. The passage of that length of time, combined with Martin’s behavior, “made it reasonable for the officer to be concerned that further delay would result in the loss of evidence.” By the time the second sample was taken, the Law Court found that the exigency was even greater because even more time had passed before the officer learned that the first blood sample might have been contaminated. Is this result surprising? I don’t think so.
Returning to the Law Court’s old position that the dissipation of alcohol over time, through the workings of natural bodily processes, created a built-in exigency in all OUI cases, that notion stemmed from the U.S. Supreme Court’s 1966 case, Schmerber v. California, 384 U.S 757 (1966). In Schmerber, the Supreme Court first upheld the warrantless taking of a blood sample from a suspect in an OUI case on grounds that the probable cause and exigent circumstances exception to the search warrant requirement applied. In making this ruling, the Supreme Court pointed out that natural bodily processes continually eliminate alcohol from a person’s blood. As discussed above, in Missouri v. McNeely, the Supreme Court later clarified that this biological fact does not automatically create an exigency in every case. In some cases, the biological fact might contribute to an exigency, but in others there might be adequate time to secure a search warrant. If there is time to secure a search warrant, that is what police are required to do.
The McNeely Court explained that Schmerber represented a case in which exigent circumstances existed, but that is not because all OUI cases necessarily present exigent circumstances. In Schmerber, itself, the Supreme Court’s declaration regarding exigent circumstances was: “The officer in the present case…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.” What were the circumstances in Schmerber that created reasonable grounds for the officer to believe he was confronted with an emergency that threatened destruction of evidence, with no time to pursue a search warrant? The officer had been delayed investigating the accident scene and arrived at the hospital where Schmerber had been taken for treatment of his injuries “within two hours of the accident.” That is very similar to the length of time that passed before blood samples were taken from Martin. And, mind you, in Schmerber, the investigating officer first noticed signs at the accident scene that Schmerber had been consuming alcohol, so he was tipped-off to the possibility Schmerber might be under the influence long before he sought a blood sample. Yet the Supreme Court did not fault the officer for failing to pursue a search warrant earlier on.
State v. Martin is the third in a series of Law Court cases that have dealt with application of the probable cause and exigent circumstances exception in an OUI case in light of Missouri v. McNeely. The first case in that series is State v. Arndt, 2016 ME 31, in which a Sagadahoc County Sheriff’s Deputy took Arndt to the Bath Police Department for an Intoxilizer test instead of taking him to the Topsham Police Department which was closer to the scene of the arrest. The deputy did this because he believed he would have quicker access to the Bath Intoxilizer at that hour of the day. When the deputy attempted to administer an Intoxilizer test to Arndt, he discovered that the Bath machine was experiencing trouble. The deputy was unable to obtain a valid test result after four attempts. By this time, about an hour and a half had passed since Arndt’s arrest for OUI. Without seeking a search warrant, the deputy had someone from Bath Fire and Rescue draw a blood sample from Arndt. The blood sample was drawn from Arndt within a half hour of the deputy abandoning attempts to secure an Intoxilizer result. The Law Court upheld the warrantless blood draw on probable cause and exigent circumstances grounds. The Court reasoned that the officer’s actions that caused the delay between arrest and the taking of the blood sample were reasonable and that the court below committed no error in finding that an exigency existed when the deputy decided to secure a warrantless blood sample.
The next Law Court case to deal with probable cause and exigent circumstances in an OUI blood draw case was State v. Palmer, 2018 ME 108. Palmer is an OUI accident case in which Palmer’s vehicle crossed the center line, at approximately 4:00 p.m., striking another vehicle head on. Palmer was taken to a hospital for treatment of his injuries. The investigating officer believed it was likely someone would die from injuries sustained in the accident. He intended to secure a blood sample under a Maine statute that calls for a warrantless blood sample to be taken from a driver, even without probable cause, when the driver is involved in an accident and there is probable cause to believe that death will result from the accident. The officer had ambulance personnel take a sample from Palmer at the accident scene, but he later learned that the forensic kit used to take the sample was expired. The officer therefore went to the hospital where Palmer was located, arriving there about 6:30 p.m. At that point, the officer learned that Palmer was about to be taken into surgery. As the officer waited for a phlebotomist to arrive to take Palmer’s blood, he overheard Palmer tell family members he’d had a few beers with lunch. When the phlebotomist arrived, the officer secured another sample of Palmer’s blood. That sample was used to prosecute Palmer. Palmer filed a motion to suppress the blood test results and a judge denied the motion on grounds that probable cause and exigent circumstances justified the warrantless blood draw.
The Law Court affirmed the trial court, reasoning that probable cause did not arise to believe Palmer had driven under the influence until the officer overheard Palmer tell family members he had consumed alcohol earlier in the day. Before then, the officer’s attempts to secure a blood sample were not based on probable cause to believe Palmer had driven under the influence, but only on probable cause to believe Palmer was involved in an accident that would result in death. By the time probable cause of OUI arose, some 2 ½ hours had passed since the accident, and Palmer was about to be taken into surgery. The Court found that, at this point, there was a “now or never” exigency that left no time to secure a search warrant.
This brings us back to the third case in this series, State v. Martin. As in Arndt, the Law Court found that the officer did nothing to cause unreasonable delay up to the point the officer decided to proceed with a warrantless blood draw. In my view, it is difficult to argue with the Court’s conclusion. From the time the officer first suspected that Martin drove under the influence to the time the officer abandoned attempts to administer an Intoxlizer test, all of the officer’s efforts to secure a forensic sample were directed at securing a breath sample. An officer who seeks a breath sample has no need to be concerned with a search warrant. Again, the Supreme Court has told us that breath tests are fully justified as a search incident to a lawful arrest. Whatever delay occurs between the time of the traffic stop and the time the officer attempts to secure an Intoxilizer test can have no Fourth Amendment implications. By the time the officer in Martin concluded that a blood test was necessary, an hour and a half had already passed. As Schmerber tells us, the question at that point is whether there were reasonable grounds for the officer to believe he was confronted with an emergency situation in which delay needed to secure a warrant threatened destruction of evidence. Given the length of time that passed in Martin before the need for a blood sample became apparent and the similarity to the length of time that passed before a blood sample was taken in Schmerber, the Martin decision is not surprising.
I have seen the argument raised that there was no exigency as to Martin’s second blood sample because it was not necessary to obtain it once the first sample was secured. In this theory, because blood samples are analyzed by gas chromatography that distinguishes isopropyl alcohol (the type used in an alcohol swab) from ethanol (the type the analysis reports as blood alcohol), the potential contamination of the first sample by use of an alcohol swab was a non-issue. Continuing with this argument, there could not have been an exigent need to obtain the second sample because the first sample was capable of disclosing all that needed to be known. This overlooks the fact that the test for exigent circumstances is a matter of objective reasonableness – would a reasonable officer have been justified in believing it was necessary to obtain a second sample and that there was no time to secure a warrant? If the officer in Martin had presented a magistrate with a search warrant affidavit stating that the first sample was contaminated by use of an alcohol swab, would the magistrate have been justified in issuing a warrant for the second sample? Absolutely. Regardless of counter-arguments about the validity of a test result from the first sample, the fact that the first sample was drawn not according to protocol lends itself to arguments that any test result would be invalid. This provides a wholly sufficient basis to secure a second sample, according to protocol, within a time for the sample to still have evidentiary value.
In a situation where an officer starts off intending to secure a breath sample but something happens to frustrate that goal and cause the officer to seek a blood sample, a certain amount of time will necessarily pass during which the officer has no cause to consider seeking a search warrant for a blood sample. In Martin, the defense argued it was the State’s burden to prove that exigent circumstances existed, and that because the State failed to explain why the arresting officer never sought a warrant the State was precluded from benefiting from the exigent circumstances exception. This argument should have more force in a case where an officer makes no effort to secure a breath sample in the first place. When an officer goes straight to the option of a blood test but makes no attempt to secure a search warrant, that conduct undercuts the argument that there was no time to secure a search warrant — How can the State establish that there was no time to secure a search warrant if there is nothing in the record to show how long it likely would have taken to secure one – 20 minutes, 3 hours, what? More importantly, how could an officer reasonably have believed there was no time to secure a warrant if the officer had no framework from which to draw the conclusion? But when an officer starts out attempting to secure a breath test, the passage of an hour and a half or more between the time the defendant stops driving and the time it first becomes apparent that a blood sample is needed is shaping-up as a benchmark of sorts, supporting a reasonable belief that too much time has already passed to start the search warrant process now.
What might undercut the force of a prima facie, passage of significant time=exigency showing? What might help is something to demonstrate that a warrant could have been obtained in the time between the police decision to seek a blood sample and the time the sample was drawn (whether by police concessions on cross examination or by evidence introduced by the defense) and showing that it was unreasonable for the officer not to have known it. On the other hand, anyone making the argument will need to contend with the Law Court’s statement in Martin, that “the presence of exigent circumstances is not diminished because in hindsight it appears that a search warrant could have been obtained.” That statement is true, as far as it goes, because the focus is on whether it was objectively reasonable for an officer to have believed exigent circumstances existed at the time. But if circumstances were demonstrably such that a reasonable officer would have understood that a search warrant could be secured without appreciably delaying the blood draw, that should make a difference. Otherwise, it’s pretty clear that the prima facie case is going to stand.