*1 court, did the district court fraud when it denied discretion
not abuse its reopen judgment motion to
husband’s 518.145, § Minn.Stat. under
and decree 2(3) (2006). And because husband an evi- good cause for
failed to establish
dentiary hearing on his motion under 2(5) (2006),
Minn.Stat. 518.145 subd. court did not abuse its discretion
district request for a hear-
by denying husband’s
ing.
Affirmed. Minnesota, Appellant,
STATE SHRINER, Respondent.
Janet Sue
No. A07-181. Appeals
Court of of Minnesota.
2,Oct. *2 General, Swanson, Attorney
Lori St. Backstrom, Paul, MN; Da- and James C. Schmidt, E. County Attorney, kota Debra MN, County Attorney, Hastings, Assistant appellant. *3 Jeffrey Ring, Jeffrey Ring B. B. and Associates, MN, respon- Minneapolis, dent. WILLIS, and decided
Considered MINGE, Judge; Judge; and Presiding HUDSON, Judge.
OPINION MINGE, Judge. challenges pretrial sup-
The state warrantless, of a pression of the results draw, arguing nonconsensual blood presence of alcohol constitutes suffi- justify a cient circumstances to conclude that blood draw. Because we there was insuffi- present, under the facts circumstances, cient evidence of we affirm.
FACTS Respondent Janet Shriner was involved May in a two-car motor-vehicle accident on 8, 2006, approximately p.m. 9:26 Burnsville. Shriner drove her vehicle anoth- wrong lane of traffic and struck head-on, injuring the driver of er vehicle scene the other vehicle. Shriner fled the Burnsville accident her vehicle. Police Maksim Yakovlev was dis- Officer patched to And Shriner. Officer Yakovlev and, located with the assistance of another officer, forcibly stopped Shriner’s vehicle. comply Because Shriner did not with the requests step officers’ out of her vehicle locked, the officer and its doors were window, door, and re- opened broke Yakovlev ob- moved Shriner. Officer eyes that Shriner’s were bloodshot served glazed-over, that she smelled of alco- and hol, her and that she could not stand on own. He also observed that she was not injured. the facts” to de “independently and we review arrested Shriner Yakovlev
Officer Ridges nearby Fairview transported her termine whether the decision erroneous. there, hospital (Minn. he directed Harris, Once Hospital. State v. The draw was make a blood draw. staff to 1999). pretrial If from a appeals the state than 45 minutes after completed less order, “clearly it must and suppression consent was the arrest. Shriner’s time of unequivocally show both that the [district] implied- no or obtained and sought impact order will have a critical on court’s advisory given to her. Officer consent ability prosecute the defendant suc [its] that he was not “wor- Yakovlev testified cessfully and that the order constituted slip under was about Shriner] ried [that Scott, error.” moment,” any given limit at legal (Minn.1998) omitted). (quotation *4 a search attempt to obtain he did of impact suppression critical “[T]he warrant. deciding must be first determined before charged with subsequently was order was made suppression whether including criminal counts first-de seven Id. in error.” impaired, in violation of gree driving while 1(5) (2004), 169A.20, § subd. Minn.Stat. I. operation resulting
and criminal vehicular harm, in of Minn.Stat. bodily in violation The first issue is whether (2004). 2b(4) 609.21, subd. of the of the blood test suppression result court held an omnibus hear The district impact will have a critical on the state’s suppress moved ing at which Shriner critical-impact inquiry, In a we con case. conceded results. Shriner the blood-test suppressed sider whether “the lack of the probable cause to seek the the existence of completely destroys the state’s evidence test, that without her but asserted blood reduces the likeli “significantly case” or draw was or a the blood consent v. State prosecution.” hood of a successful mo granting After Shriner’s improper. Kim, 544, 551 398 N.W.2d evidence, suppress tion to blood-test test results Suppression of alcohol-level dismissed the first-de the district court if impact critical even there is other has a and criminal- gree driving-while-impaired Ault, v. evidence of intoxication. State vehicular-operation charges under Minn. (Minn.App.1991). N.W.2d 1(5) 609.21, 169A.20, §§ subd. and Stat. 2b(4). appeal by This the state fol of the dis significance lows. the blood- suppressing trict court’s order apparent. The district test evidence is ISSUES charges of both determined that the re- suppression I. Did the of blood-test first-de operation criminal vehicular and impact a critical sults have required proof driving impaired while gree case? state’s level was blood-alcohol Shriner’s sup- II. Did the district court err Because evidence Shriner’s above .08. the blood-test evidence? pressing suppressed, both blood-alcohol level
ANALYSIS Thus, sup charges were dismissed.1 has a significant evidence pression of this court’s decision to The district law, on the state’s case. impact and critical question evidence is a suppress argue we do parties do not charges against Shriner. The five remained 1. We note that Paul, (Minn. II. v. State 1996). is whether the district The next issue the blood-test suppressing
court erred
The administration of a blood
contends that
evidence.
state
test is considered a
that must com
search
justified a
circumstances
warrantless draw ply with
Fourth Amendment.
blood.
Shriner’s
Schmerber,
at
384 U.S.
S.Ct.
requirements
In order to
1834.
meet the
The United States Constitution’s
Amendment, warrantless,
of the Fourth
guarantees
Fourth Amendment
“[t]he
sup
nonconsensual
draw must be
right
people
to be secure
their
ported by
both
cause and
...
persons
against unreasonable searches
Aguirre,
circumstances.
and seizures.” U.S. Const. amend.
IV.
79, 81
Probable
parallel
Our state constitution
contains
when, given
cause to search exists
I, §
A
provision. Minn. Const. art.
circumstances,
totality of the
“there is a
search and seizure conducted without a
probability
fair
that contraband or evi
per
se unreasonable.
State
particu
dence of a crime will be found in a
Othoudt,
(Minn.
Zanter,
place.”
lar
State
1992).
supported by
A warrant must be
*5
stipu
633
I,
Minn.
probable cause.
Const. art.
lates that
deputy
the
had
requirement
10. “The
that a warrant be
to believe that she was under the influence
a requirement
obtained is
that inferences
Therefore,
of alcohol.
disputed
the sole
support
by
to
the search be drawn
a neu
issue in
case is
this
whether
cir
magistrate
tral and detached
instead of
warrantless,
justified
cumstances
the
non-
by
being judged
engaged
the officer
in the
consensual blood draw.
competitive enterprise
ferreting
often
California,
out crime.”
Schmerber
384
determining
When
whether
the
757, 770,
1826, 1835,
U.S.
86 S.Ct.
16
circumstances,
presented exigent
situation
(1966)
omitted).
L.Ed.2d 908
(quotation
totality
we examine the
of the circum
“
requirement
‘subject
But the warrant
is
Lohnes,
stances. State v.
344 N.W.2d
...
specifically
few
established and
611
“[e]xigent
But
circum
”
exceptions.’
well delineated
State v. Han
stances can
be
...
[also]
established
(Minn.1985)
ley, 363 N.W.2d
738
Johnson,
single factor.”
689 N.W.2d at
States,
(quoting Katz v. United
389 U.S.
Exigent
251.
circumstances exist when
347, 357,
507, 514,
88 S.Ct.
might reasonably have believed at blood-alcohol evidence. 548 N.W.2d emergency, confronted with an In Heaney, again 267. delay necessary to obtain a which noted the “natural involved in circumstances, under obtaining blood-alcohol evidence.” threatened the destruction of evidence. at n. 2. Although Aguirre N.W.2d percentage are told that the of alco- We upheld constitutionality decision of a diminish begins hol the blood nonconsensual, draw, warrantless blood shortly drinking stops, body after as the appeal the issues on concerned the lack of sys- functions to eliminate it from the interplay an arrest and the between the this, Particularly in as tem. a case such implied-consent law and the level of bring taken to where time had be charges. at 80-83. The hospital investigate to a and to accused Aguirre court did not consider U.S. accident, the scene of the there was no Supreme Court’s decision Schmerber. magistrate time to seek out a and secure Johnson, that, inAnd we concluded based a warrant. case, possible de- facts of 770-71, (quota- Id. at 86 S.Ct. struction of blood-alcohol evidence amount- at omitted). And in con- supporting tion and citation an ed to circumstance exigent-circumstances analysis, an ducting search. warrantless emphasized Minnesota cases have factors with the intrica- Several other cases deal *6 nature of alcohol in such as the evanescent law. implied-consent cies of the See Fred- blood, time, passage and the Bruno, Drinking Driver eric unavailability (3rd ed.2006).2 of the defendant potential § 2.10 Minnesota hospital he or she taken to the for once See, Oevering, e.g.,
treatment.
State v.
A careful review of our caselaw
68,
74
although
that
there are com
indicates
support
some
to the
ments which lend
exigent
that
circum-
The state contends
expressly
none has
held
position,
state’s
justifying
stances existed
the warrantless
per
of alcohol is a
se
presence
that
draw of Shriner’s blood. The state essen-
justify a
circumstance sufficient to
exigent
tially
position
that due to the
takes
jurisdic
draw. Other
warrantless blood
alcohol,
presence
evanescent nature of
is
conflicting positions
tions take
on this
reasonably
of alcohol in an individual
sus-
Rodriguez, 156
Compare
sue.
crime is an
pected of an alcohol-related
(Utah 2007)
771,
(declining to
782
P.3d
per
justifying
circumstance
se
se
circumstance sta
assign “per
support
To
its
warrantless blood draw.
draws,
up
to warrantless blood
but
tus”
previous
position, the state cites numerous
draw at issue in
holding warrantless blood
and
decisions of the
both
totality of the cir
the case based on the
opinions of this
published
unpublished
and
Cocio,
Paul,
cumstances),
147
court,
266;
with State v.
Ariz.
including
548 N.W.2d at
(1985) (allow-
277,
1336,
168,
P.2d
Heaney,
173 n.
State
§§
emphasize
implied-consent
169A.50-.53
2. We
that no
advi-
not
consider Minn.Stat.
(2006).
sory
given
respondent
we
to
and that
do
blood without a war
decision in
ing police
adopt
per
Schmerber and to
already
has
rant when blood
been drawn
se rule.
purposes),
for medical
and State v. Bohl
question
then
becomes
ing,
173 Wis.2d
proceeding
whether in this
fac
there are
(1993) (“[T]he dissipation of alcohol from a
tors, together
presence
with the suspected
person’s
stream constitutes a suffi
blood
alcohol,
that
constitute
circum
justify
cient
a warrantless
justify
stances sufficient to
the warrantless
draw”).
reading
A close
of Schmer
employ
totality-of-the-
blood draw.
We
Supreme
ber and other
States
United
approach.
cireumstances
Shriner
support
Court decisions does not
was arrested
her vehicle one-half mile
See,
position.
e.g.,
Ry.
state’s
Skinner v.
Ridges
from Fairview
Hospital. Officer
Ass’n,
Labor Excecutives’
489 U.S.
quickly transported
Yakovlev
(1989)
law, and concluded: intoxication. Based on a two-hour rule to In light foregoing, it is difficult guilt establish under Minn.Stat. imagine for us the United States 1(5) 169A.20, (2004), §§ 609.21, subd. Supreme Court could muster the assur- 2b(4) (2004), question becomes consequences ance that of alcohol reasonably whether warrant could have dissipation great are pros- so and the been obtained within a timeframe that pects prompt acquisition so compromised would not have the test res *7 per remote that se circumstance ults.3 status be awarded to seizures of blood for of purpose gathering the blood-alco- process The a search Accordingly, hol evidence. we decline to warrant is set out the statutes and court grant per se circumstance status §§ rules. See Minn.Stat. 626.04 to 626.18 to warrantless seizures of blood evi- (2006); Minn. R.Crim. P. Although 36. dence. prosecuting attorney the often handles the 156 P.3d at The Fourth application warrant, 782. Amendment for a search law en represents public policy a fundamental of may apply forcement directly judge. the See, protecting personal State, privacy dignity e.g., City Minneapolis v. of against Cook, by 17, unwarranted intrusion (Minn.1993); the 498 N.W.2d 18-19 McGrath, state. opportunity 532, We decline the to re- State v. 706 N.W.2d ject the Supreme case, United (Minn.App.2005). States Court’s In this it was eve- "Generally, 3. by bering the up rate which an individual Arising Daubert: Recent Issues body eliminates Expert Testimony, [or alcohol from his her] Alcohol-Related. 46 S. Tex. Keller, per (2004). Kimberly hour." 0.015% S. So- L.Rev. (Minn.App.1993). But as may officers police Burnsville ning. The determined, attorney already we have the constitu- prosecuting to contact a have had request. requirements a warrant tional for a nonconsensual prepare home to had to Next, probable would have include both cause and law enforcement search warrant, obtain judge, request a a or the of locate a either search warrant existence evidence of provide exceptions. and then Neither the one of the warrant staff at the Fairview warrant to the the statute nor the Condon case mentions authorize the noncon- Ridges Hospital to the constitutional limits on searches and expedi- draw. This takes sensual blood necessity of circumstances to action. tious with search warrants. dispense although note that the constitutional We use law authorizes the
Minnesota
argued
limits on searches
to and ad
Minn. R.Crim.
telephonic warrants. See
court,
by
argued
and is
dressed
the district
recognized the
P. 36.01. Caselaw has
parties
appeal,
on
the district
validity
telephonic
availability and
consider,
See,
appeal
parties
did not
and on
e.g., State v. Lind
search warrants.
address,
constitutionality
In
State
do not
sey,
rant at 3:10 a.m. But we assume that the executed within one hour and warrant was not intend to violate the legislature does Cook, 645.17(3) fifty minutes. Id. And State § constitution. Minn.Stat. (Minn.1993), judge (2006). a therefore note that Minn.Stat. We telephonic search warrant less 169A.52, issued § subd. does not refer request after the for the than one hour search warrants. We construe the subsec Here, the state was made. warrant has dispensing tion as not with the . showing that it would have been made no can be requirement when warrant ob timely telephonic search unable required by the tained and is otherwise warrant. Likewise, constitution. we consider as a exigent-circumstances requirement argues The state exis reaching In this con part of the statute. to believe that probable tence of clusion, exigent- emphasize we criminal-vehicu had violated the high is not a requirement circumstances justifies the warrant- lar-operation statute physical condition of threshold. Minn. blood draw. The state cites less the evanescent suspect persons, and other 169A.52, (2004), pro which Stat. blood, in the and the time nature of alcohol “if officer has peace vides that a warrant needed to obtain requirements *8 has violat person cause to believe that the to no doubt will combine and a blood test (criminal vehicular homi ed section 609.21 exigent circumstances in most constitute injury), may required a test cide and be cases. refusal.” despite person’s and obtained court did not find that the district probable an officer has “When dispense exigent circumstances existed a driver is intoxicated and believe [that] As al- requirements. the warrant opera criminal vehicular with has committed noted, circum- ready totality of the tion, taking of a may the officer order deter- support exigency an the driv stances do obtaining without sample Condon, that Yakovlev testified 497 mination. Officer consent.” State v. er’s he about dissipation was not concerned DECISION of alcohol from Shriner’s blood. The scene The Fourth Amendment of the United hospital; of the arrest was near the States precludes Constitution using the re- time needed to make blood draw was warrantless, sults of nonconsensual blood draw in a prosecution minimal. The officer was not faced criminal with unless law probable enforcement has cause to believe competing responsibilities. Equally signif- criminal conduct has occurred and there icant, the district court did not find that are circumstances addition to nighttime search warrant was evidence of consumption. alcohol Because consuming time or created circum- the record in proceeding this does not stances. The record is silent on the local presence show the necessary process and the state does not circumstances, we affirm. claim that any difficulty there is in obtain- Affirmed. ing nighttime or telephonic warrants. On record, this prosecution when neither the WILLIS, Judge (dissenting). nor the district judge was concerned I respectfully majori- dissent from the with ability the officer’s promptly ty’s holding, which require would an on- and the district court held a the-scene degree assessment of the of exi- obtained, warrant should have been we are gency of the need for alcohol-concentration unwilling to reverse the district court and testing police even when believe a serious assume that the time needed to obtain a criminal offense has occurred. warrant created an exigent circumstance. majority out, As the points proba both ble cause and exigent circumstances are The argues given state that justify needed to the warrantless removal inherent stress accompanies an acci of blood. Aguirre, situation, dent and arrest the officer majority asserts that should not have to make a judgment call authority there is no holding that pres on whether a warrant can be obtained. alcohol, need, ence of therefore, and the suggest We do not that the officer’s deci it, test itself an exigent circum sion is easy. In determining whether a stance. But our court has unmis situation presented exigent circumstances, takably implied is, that it even when the give district courts due consideration to less-serious offense of DWI is only range the wide facing circumstances law crime suspected. Tyler See v. Comm’r of See, enforcement. e.g., Rodriguez, 156 (Minn. Safety, Pub. P.3d at 781 (emphasizing that serious na 1985) (stating that warrantless removal of ture of injuries, accident and together with blood is constitutional if there is significant evidence of impairment driver’s cause to believe that the offense of DWI were “sufficient to establish that the inter has been committed “and that the removal ests of law outweighed enforcement ... of the necessary blood is to preserve evi interests”). [the privacy driver’s] On this guilt”). dence of majority cites no record where no extenuating circumstance Minnesota decision requiring a case-by- other than the quality evanescent of alco case assessment of present, hol is we conclude the district need testing for alcohol its decision *9 court did holding not err in that police the imposes, cases, even in DWI which are less officer must obtain the driver’s consent or serious than suspected the crime in this obtain a warrant. case.
441 holding highly Assessing “exigency” the relevant fac- majority’s rests on The in reading easy of the caselaw Minne- tors is not task even for a selective an court. majority Aguirre notes that example, apparent The For degree sota. the driver’s that is Schmerber. But fails to consider of intoxication is not as relevant as the supreme the court Aguirre in because majority supreme suggests. court in settled law its decision State treats as emphasized has that an officer need not (Minn.1978), Oevering, 268 N.W.2d that a have cause to believe driv- broadly it construed Schmerber which er is in order to have intoxicated as circumstances when recognizing drawn, only cause to “probable believe that (i.e., the the of evidence “destruction alcohol administration of a blood test will content) threatened.” blood-alcohol discovery result the of evidence relevant reading of Schmerber is essen- This broad prosecution the of a crime.” State v. development tial of implied-consent to the Lee, N.W.2d it, supreme law in Minnesota. Without the And a be too drunk for her driver cannot stated, it did in could not have as alcohol concentration to be relevant evi- Pub. Nyflot Safety, after v. Comm’r of dence. officer at the scene cannot Schmerber, legislature that citing gauge a alcohol or driver’s concentration implied law and repeal “could consent prefer would prosecutor know whether a officers to administer chemi- police direct driving charge negligent with while her suspect’s against cal will.” 369 tests an impaired negligent driving or with alco- That view N.W.2d exigency hol concentration over .08. The of leaves no room for the ma- Schmerber exists “the removal of the blood is because the case as to its jority’s reading of limited evidence,” necessary Tyler, preserve facts, reading majority that the treats not because 368 N.W.2d at driv- arguable not an of just interpretation as question. er’s intoxication is a close unchallenged holding. but as its Schmerber bright-line In there is a rule summary, involving the of- In cases more serious majority opinion that obscures. The (or operation of criminal vehicular fense obscuring that line will confusion of homicide), supreme long court has held our Schinzing, police. for the See State v. implied- need not resort police (Minn.1983) (noting that N.W.2d statute, or otherwise obtain the consent assessment requiring case-by-case of consent, in order constitutional- driver’s li- police whether can ask for driver’s ly sample a blood without a war- unnecessary cense “would create confusion Speak, rant. See State N.W.2d among the Police officers should police”). (Minn.1983); Aguirre, 295 likely have intoxication lev- to balance In none of these cases has the telephonic against logistics els war- court held rants at of a serious accident. the scene sample depends a blood obtaining apparent intoxi- degree of the driver’s
cation, from a or the hospital, the distance
logistics telephonic search by the of the factors cited some Requiring police officers to bal-
majority. an poses factors on scene
ance such burden.
impossible