UNITED STATES OF AMERICA, Appellant, v. PRANEETH MANUBOLU, Defendant, Appellee.
No. 20-1871
United States Court of Appeals For the First Circuit
September 14, 2021
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
Julia M. Lipez, Assistant U.S. Attorney, with whom Halsey B. Frank, U.S. Attorney, was on brief, for appellant.
Walter F. McKee, with whom Matthew D. Morgan, Kurt C. Peterson, and McKee Law LLC, P.A., were on brief, for appellee.
I. Background1
A. The Late-Night Investigation
At 2:48 A.M. on August 31, 2019, Officer Judson Cake of the Bar Harbor Police Department (BHPD) responded to a single car
When the EMTs showed up at 3:12 A.M., it was clear to the officers that all three passengers had already died. The rescue operation, according to the officers, turned into an investigation. Officer Cake had already begun photographing the scene, and Southwest Harbor Police Department (a neighboring precinct) sent resources to close down the Park Loop Road.4 Officers Cake and Hardy also questioned and observed Manubolu.
At about 3:24 A.M., National Park Ranger Brian Dominy made it to the scene. He and the BHPD officers determined the rangers would take the lead in the investigation, yet the BHPD officers remained to assist him in the early morning investigation because, in the words of Officer Cake, Ranger Dominy “didn‘t really have any help with him.” Only three rangers who could respond lived on the island and it took them some time to arrive. According to Ranger Dominy, his team did not usually handle triple fatality accidents, and he felt “spread kind of thin.” He started photographing and documenting the scene. He and BHPD also called in a crash scene reconstruction expert. Ranger Dominy needed to identify the bodies and work with the medical examiner, but he could not move the bodies until the reconstruction expert arrived.
B. Figuring Out Manubolu‘s Inebriation
Once the passengers were clearly beyond rescue and the ambulance had arrived, Officer Hardy turned his attention to Manubolu, who was in the ambulance with the EMTs. During his chat with Manubolu, Officer Hardy observed that Manubolu‘s eyes were bloodshot and that there was an “odor of alcohol coming” from his breath. Manubolu admitted to consuming “two shots of whiskey” when he had gone to a tavern for dinner and drinks with his friends
The EMTs wanted Manubolu to go to the hospital to inspect him for internal injuries given the “traumatic crash.” Manubolu initially resisted, but finally relented so long as Officer Hardy went along with him. Before Officer Hardy left, he relayed information about his conversation with and personal observations of Manubolu to Ranger Dominy and the two had a brief discussion about how to get evidence of Manubolu‘s BAC.
Notwithstanding the evident signs of intoxicated driving, the responding law enforcement officials did not conduct any field sobriety tests because of Manubolu‘s injuries. Officer Hardy explained that he feared Manubolu might have had a head or internal injury because Manubolu had a “goose egg-sized bump” below his right eye. Officer Cake also testified that Manubolu should have gone to the hospital (in part because the EMTs encouraged
Manubolu‘s injuries also explain why he was not breathalyzed. Because the BHPD officers did not carry portable breathalyzers in their cruiser, they would have needed to bring Manubolu back to the station to conduct one. Given Manubolu‘s injuries, the severity of which was unknown, and the EMTs’ recommendation, Officer Hardy concluded that the “goal [was] to get [him] to the hospital as soon as possible to be medically treated.”8
Without the field sobriety test and without any breathalyzer, Ranger Dominy and Officer Hardy agreed that Hardy would go with Manubolu to the hospital to get a blood draw. A Maine statute at the time permitted officers to take warrantless blood draws from those suspected of drunk driving in a fatal accident even without exigent circumstances. See
Officer Hardy and Manubolu left for the hospital in Bar Harbor around 3:53 A.M., arriving at about 4 A.M. Once at the hospital, Officer Hardy invoked the Maine statute. He ordered the warrantless blood draw without Manubolu‘s consent at 4:24 A.M., which was about 90 minutes after the crash took place.
C. Attempts (Or Lack Thereof) to Get a Warrant
No matter the federal regulation prohibiting warrantless blood draws absent exigent circumstances from suspected drunk drivers in federal parks, Ranger Dominy never discussed getting a federal or state warrant with any of the BHPD officers.
Ranger Dominy did try to reach the on-call Assistant United States Attorney (AUSA) at 3:15 A.M. (about an hour before the warrantless blood draw), but the AUSA did not answer. Ranger
The district court found that Ranger Dominy did not begin to pursue a warrant until 4:45 A.M. (after the warrantless blood draw had already occurred) when the on-call AUSA finally phoned him back. It was only then that Ranger Dominy told the on-scene team they would need to get a search warrant. To get it under the protocols then in place, Ranger Dominy would have needed to provide an affidavit or statement of probable cause to an AUSA, who would have drafted the warrant for Ranger Dominy to review before it would have been transferred to a federal magistrate judge to consider. Rangers had telephonic capabilities, but they could not call magistrates directly (apparently a previous magistrate judge had not appreciated receiving direct calls from federal law enforcement officials). Ranger Dominy did not have a laptop in his truck, so he would have had to return to his office six miles from the accident to draft an affidavit.
In accordance with prior state law, none of the BHPD officers attempted to get a warrant. But, if they had, the state warrant procedure was quite onerous. The BHPD did not have
Ranger Dominy testified at the suppression hearing that he believed at the time that exigent circumstances (in addition to Maine law) justified the warrantless blood test. He pointed to the three fatalities, the “time frame of when the bars closed and when the driver had admitted to Officer[s] Hardy and Cake that he
D. The Charges and Suppression Motion
The federal government charged Manubolu with three counts of manslaughter (
II. Analysis
The only issue on appeal is whether the district court, as the government contends, erred by suppressing the results of the warrantless blood draw because no exigent circumstances were present. The government asserted below, as it does here, that even if the officers believed they could draw blood under the Maine statute, exigent circumstances permitted the draw due to the complexities of the investigation, Manubolu‘s pressing health needs, the seriousness of the crash, the resulting fatalities, and the jurisdiction‘s elongated warrant processes. In the
A. The Fourth Amendment and Warrantless Blood Draws
The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches” such that “no Warrants shall issue, but upon probable cause.” Mitchell, 139 S. Ct. at 2534 (plurality opinion) (quoting
But, let‘s spend a little more time narrowing down that broad definition. Several types of events fit the parameters of exigent circumstances, but the one we care about right now is the “imminent destruction or removal of evidence.” Id. (quoting Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000)).18
Courts often encounter imminent destruction of evidence issues in drug cases when suspects are caught flushing drugs down the toilet, see King, 563 U.S. at 461, but it is also the case that a drunk-driving suspect‘s BAC is naturally destructive because it diminishes at approximately .01% to .025% per hour (depending on an individual‘s characteristics), see Mitchell, 139 S. Ct. at 2536. Projecting a BAC reading back in time thus
Courts, of course, know that there is always some delay between the need for BAC evidence and the actual time of the blood draw. Id. at 153. For an exigency to exist when a suspect‘s BAC is dissipating, other factors must contribute to lengthening that “inevitable” delay, such that law enforcement could not “reasonably obtain a warrant” before the “efficacy of the search” for the suspect‘s BAC is “significantly undermin[ed]” because the BAC has dissipated too much; otherwise a warrant is required. Id. at 152-53. In other words, if circumstances make getting “a warrant impractical” in the face of dissipating BAC, exigent circumstances will be present. Id. at 153-54.
Law enforcement must “reasonably believe” that the circumstances required such “immediate action” that they could not wait to obtain a warrant. Rodríguez-Pacheco, 948 F.3d at 7
The dissipation of BAC is one factor to consider, but the Supreme Court has also made clear we should examine how the process of obtaining a warrant can further delay when the blood draw happens. See McNeely, 569 U.S. at 155. Technology, specifically telephonic or electronic warrant capabilities, has made it far simpler and faster for officers to obtain warrants, especially with drunk-driving cases where the probable cause statement is somewhat formulaic (suspect had bloodshot or glossy eyes, emanating odor of alcohol, slurred speech, unsteadiness, open container of alcohol, etc.). See id. Yet, technological improvements do not guarantee that an officer can get a warrant, especially when confronted with a late-night arrest for suspected drunk driving. Id. Courts must consider the “warrant-application process,” even if a jurisdiction has not updated its procedures to
Other factors -- beyond delays in getting a BAC test due to the warrant process -- affect the exigent circumstances calculation. If there is an accident “where time had to be taken to bring the [suspect] to a hospital and to investigate the scene of the accident,” because of the nature of the crash or the lack of investigative resources to assist, then there might not have been “time to seek out a magistrate and secure a warrant” for the blood draw. Schmerber, 384 U.S. at 770-71.
Recently, a plurality opinion for the Supreme Court summarized the doctrine borne from McNeely and Schmerber as establishing a “spectrum” of exigencies that permits a warrantless blood draw when: “(1) BAC evidence is dissipating; and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”20
In an unfortunate number of instances when there is a drunk-driving accident, like Manubolu‘s, the officers “may have to deal with fatalities” or provide first aid until medics arrive at the scene. Mitchell, 139 S. Ct. at 2538. They also “may have to preserve evidence at the scene.” Id. Such “pressing matters” in addition to time-intensive warrant procedures could delay the BAC draw, and “would require responsible officers to put off applying for a warrant.” Id. Waiting to draw blood until a warrant has been secured “would only exacerbate the delay -- and imprecision -- of any subsequent BAC test.” Id.
Because modern technology has not eliminated the time it takes to get a warrant, the Supreme Court has cautioned against “forc[ing officers] to choose between prioritizing a warrant
Court to explicitly overrule it” (modification in original) (quoting Medeiros v. Vincent, 431 F.3d 25, 36 (1st Cir. 2005)). At the end of the day, as noted, we ask whether a reasonable officer in the circumstances would have believed there was an exigency given the facts known, which include both what did inhibit the warrant application and what could have inhibited the warrant application. Morse v. Cloutier, 869 F.3d 16, 24 (1st Cir. 2017) (“[T]he bottom-line question is whether a reasonable officer would have thought, given the facts known to him, that the situation he encountered presented some meaningful exigency.“).
What this precedent leaves us with is this: we must decide if the officers responding to Manubolu‘s crash faced a set of pressing health, safety, and investigative needs that would have so delayed the warrant, especially considering the jurisdiction‘s application processes, that officers in their shoes reasonably would have believed that they would have “significantly undermin[ed]” the efficacy of the BAC evidence by waiting to do the blood draw. McNeely, 569 U.S. at 152.
B. Standard of Review and the District Court Ruling
When reviewing the approval of a motion to suppress, we assess the district court‘s legal conclusions de novo and factual
After holding a hearing on the motion to suppress at which Officers Cake and Hardy and Ranger Dominy testified,24 the district court concluded as a matter of law that there was no exigency.25 We spell out the court‘s reasons and the parties’
arguments in a little bit when we explain our application of the Mitchell factors and why we analyze the “totality of the circumstances” differently. McNeely, 569 U.S. at 145.
C. Subjective Intent and the Exigency Analysis
Before we delve into our reasoning, we briefly detour to address the district court‘s (and Manubolu‘s) heavy reliance on Ranger Dominy and Officer Hardy‘s subjective beliefs that BHPD could conduct a warrantless blood draw pursuant to
This is so because regardless of whether Ranger Dominy and Officer Hardy intended to rely on the Maine statute, see Brigham City v. Stuart, 547 U.S. 398, 404-05 (2006) (holding subjective intent of officers does not control exigency analysis), as long as an objectively reasonable officer in their situation would have reasonably believed there to be exigent circumstances, then the warrant requirement would not have applied, Morse v. Cloutier, 869 F.3d 16, 24 (1st Cir. 2017) (citing Almonte-Báez, 857 F.3d at 32-33). Although the district court‘s conclusion rested in part on the officers’ subjective intent,26 the court also weighed, at least to some degree, certain factors faced by the officers, such as pressing health and investigative needs, see Mitchell, 139 S. Ct. at 2537, and the drawn-out warrant procedures, see id. at 2539 (quoting McNeely, 569 U.S. at 155). The court found them wanting, hinting it considered the late-night crash to be a “fairly ordinary” drunk-driving event. Therefore, we turn to our analysis of the Mitchell factors and why we disagree with the court‘s assessment.
D. Determining Whether Exigent Circumstances Existed
Recall that the second part of the Mitchell test for exigent circumstances instructs us, given dissipating BAC, to examine whether there were any pressing health needs -- such as transporting a suspect to the hospital or caring for other injured individuals at the scene -- or investigative needs -- such as documenting evidence -- “that would [have] take[n] priority over a warrant application.” 139 S. Ct. at 2537. Recall too, that Mitchell thereafter incorporates McNeely‘s point that the time it takes to get a warrant on its own factors into the exigent circumstances analysis. See id. at 2539 (quoting McNeely, 569 U.S. at 155). Ranger Dominy testified that he believed there were exigent circumstances based on the fatalities, the nature of the crash, Ranger Dominy‘s knowledge of when the local bars close, and Manubolu‘s statements about last consuming alcohol sometime before 1 A.M. The district court disagreed, pointing to, in its assessment, the lack of pressing health needs and the government‘s responsibility for crafting the lengthy warrant procedures.
i. Pressing Health Needs
Specifically as to pressing health needs, the district court noted (and Manubolu agrees) that the officers had little to worry about. The EMTs relieved them of emergency rescue responsibilities 16 minutes after Officer Cake first arrived. Moreover, the EMTs treated Manubolu (who had relatively minor injuries consisting of a goose-egg bump and some scrapes on his face). And, as a kicker, the district court pointed out that the officers knew the other three passengers were dead by the time the EMTs got there. In other words, there were no health emergencies which would have made reasonable officers think they did not have time to get a warrant (although Manubolu‘s injuries did prevent the officers from taking him to the station for a constitutionally acceptable warrantless breathalyzer test). See Birchfield, 136 S. Ct. at 2184.
Despite the government‘s suggestion that Manubolu‘s hospitalization alone created an exigency, the district court‘s analysis was proper, at least so far as it goes. Cf. State v. Michael, No. 2019-KK-01273, 2020 WL 3867127, at *7-8 (La. July 9, 2020) (per curiam) (finding exigency when a hit-and-run accident caused serious injury to two people, created two separate scenes requiring police investigation, and required the defendant be transported to a hospital for medical attention). But, since Officer Hardy accompanied Manubolu to the hospital (Manubolu, remember, refused to go to the hospital without Officer Hardy), one officer could no longer help investigate or go back to the station to begin the warrant process. So, although health emergencies alone here would not necessarily have justified the exigency, the injuries and fatalities still play into the calculus by thinning out the police resources available to investigate the scene. See Schmerber, 384 U.S. at 770-71. We move on.
ii. Investigative Needs
The district court believed (and Manubolu once more concurs) that Ranger Dominy and the other officers could have prepared a warrant while Manubolu headed off for medical care. Implicit in that finding is the view that the officers should have deprioritized documenting the evidence or questioning Manubolu before he headed to the hospital so as to prepare a warrant (or, less favorably, that the officers were doing nothing and should have been drafting a warrant affidavit). Manubolu also suggests there were enough officers on scene (a “panoply” in fact, as the district court phrased it) that someone could have pursued the warrant. The government contends Ranger Dominy and the other responding officers did not face such a routine DUI stop, like in McNeely, that would have permitted them time to apply for the warrant before drawing blood at 4:24 A.M. because the officers simply had too much to do given the grisly accident site and three fatalities.
If officers have to “preserve evidence at the scene” of a drunk-driving accident, it weighs in favor of finding an exigency justifying a warrantless blood draw. Mitchell, 139 S. Ct. at 2538; Schmerber, 384 U.S. at 771. The district court seems not to have engaged robustly with the investigative factor, so we must look to the record to see what we can figure out, always remembering that it is the government‘s burden to prove an exigency supported a warrantless blood draw. Rodríguez-Pacheco, 948 F.3d at 6.
When government resources are diverted to investigating a car accident, courts have tended to find an exigency existed to justify a warrantless blood draw. See, e.g., State v. Fischer, 875 N.W.2d 40, 46-48 (S.D. 2016) (extensive evidence documentation, including finding and identifying severed limbs, “required immediate attention” sufficient to divert officers from applying for a warrant when the defendant‘s pressing medical needs necessitated an immediate blood draw). This is particularly true where the responding officers are all busy investigating. See Schmerber, 384 U.S. at 770-71 (sole responding officer faced “emergency” justifying warrantless blood draw considering investigative needs); Fischer, 875 N.W.2d at 46 (all available officers on scene taking part in the investigation contributed to a finding of exigency when pressing medical needs also were present).
As of 3:12 AM when the EMTs arrived, the only three on-duty BHPD officers (Cake, Hardy, and Harrington) were on scene, which, remember, was described as “horrific.” Once Ranger Dominy made it at 3:24 A.M., Officer Cake stayed to assist for hours because there was no one else available to help Ranger Dominy with all of the tasks, especially once Officer Hardy went with Manubolu to the hospital (Ranger Dominy even testified to feeling spread thin). Even once the other two available rangers arrived, Ranger Dominy immediately asked them to help investigate. At 4 A.M., Ranger Dominy put Deputy Chief Picard to work assisting the BHPD officers mapping and collecting data about the crash with the reconstruction expert. At 5 A.M., Ranger Belskis arrived and Ranger Dominy at once sent him to the hospital to wait to arrest Manubolu.
Even if the scene was not chaotic, the record indicates the officers were plenty occupied with a variety of tasks. Ranger Dominy and the others had to document evidence, which took long enough that Ranger Dominy did not clear the scene until 7 A.M. The three fatalities did not require the officers to handle any health emergencies, but the deaths forced the officers to coordinate with a medical examiner and to spend time trying to identify the victims. Because of the nature of the crash, the officers had to collect and map evidence before the crash reconstruction expert arrived; they also had to work with the reconstruction expert when he arrived. All the while, Ranger Dominy was aware that the alcohol in Manubolu‘s blood was dissipating given his estimation that Manubolu had last consumed alcohol around 1 A.M., even if he did not (and could not) testify as to when he estimated the BAC evidence would precisely be destroyed or would become an unreliable barometer of Manubolu‘s intoxication at the time of the crash. See Mitchell, 139 S. Ct. at 2536 (noting the “biological certainty” that BAC dissipates between .01% and .025% an hour depending on a person‘s anatomy).27
Much of this investigative work came after the warrantless blood draw at 4:24 A.M., but it is helpful context for understanding why Manubolu‘s crash was far from the routine type for which it would have been easy for the officers to step away to apply for a warrant. See id. at 2538 (citing McNeely, 569 U.S. at 156). The nature of the crash and the fact that the officers were not sitting around twiddling their thumbs weighs in favor of there being exigent circumstances.28 See id. at 2537; McNeely, 569 U.S. at 152 (citing Schmerber, 384 U.S. at 770-71); cf. State v. Hay, 946 N.W.2d 190, 197-98 (Wis. Ct. App. 2020) (refusing to find exigent circumstances when the two on-scene officers could have begun the warrant process while waiting for a third officer to arrive, but instead performed no investigative duties while waiting). The Supreme Court has indicated that courts should not force officers into this “grim dilemma” where they have to choose between documenting evidence and applying for a warrant. Mitchell, 139 S. Ct. at 2538. Given the investigative needs, a reasonable officer in the circumstances present here could reasonably have thought, in combination with the dissipating BAC and the realities of the extended warrant process found in this record, that he would
not get a warrant before the BAC evidence had lost significant evidentiary value. See McNeely, 569 U.S. at 152.
iii. Warrant Process
Notwithstanding the investigative needs resulting from the terrible crash, McNeely teaches us that no exigency can result from the totality of circumstances so long as an officer could have reasonably obtained a warrant without “significantly undermining the efficacy of the [BAC] search.” 569 U.S. at 152. In other words, if the officers had time to get a warrant before the dissipation of the BAC even in the face of a tough crash scene with many investigative responsibilities, then they should have gotten a warrant. Id.
The district court, which Manubolu again follows, fretted (not without good reason) that a late-night or early morning crash like Manubolu‘s could “always [lead to] exigent circumstances,” thus making McNeely “irrelevant” if the government‘s warrant process “mean[t] that an officer will never (or very rarely) be able to secure a warrant before evidence of intoxication has disappeared or become unreliable.” The court did not want to give a stamp of approval to this warrantless blood draw for fear of creating a per se exigency in all similar circumstances. The court paid particular attention to the AUSAs’ failures to answer their phones (especially the on-duty AUSA specifically charged with picking up the phone!) and to Ranger
Additionally, the court faulted the government for not providing an explanation for why the warrant process would have required Ranger Dominy to return to his office to draft an affidavit before sending it to the AUSA, who would then have drafted a warrant application before sending it back to Ranger Dominy. Only then (finally) would Ranger Dominy have submitted the application to a magistrate judge. The court was particularly perplexed because “the circumstances justifying a blood draw in this case do not appear to be overly complicated.” By then citing to the Federal Rules of Evidence permitting telephonic and electronic warrants, as well as to McNeely, which recognized that the availability of those procedures could play into the exigency calculation, the court concluded that the unnecessarily complicated and lengthy procedure should not weigh in the government‘s favor because it, “to a significant extent,” controlled “the length of that process.”
While the record does not provide an exact time for how long the federal warrant process normally would have taken, it took three and a half hours for Ranger Dominy to get the warrant that morning, and it would have taken the BHPD anywhere between three to five hours to navigate its warrant process without electronic or telephonic capabilities. The government, on the other hand, argues that the lengthy, antiquated warrant processes, as well as the unresponsive AUSAs, added to the exigency, especially at the witching hour when the crash occurred.30
McNeely, contrary to the district court‘s reading, understood that improvements in the warrant process did not mean every jurisdiction would have a seamless application structure, especially for crashes around 3 A.M. 569 U.S. at 155 (“[I]mprovements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.“). Ranger Dominy did not control the AUSAs and he did try to contact them three times in one hour while responding to a triple-fatality car crash. He did not control the warrant application procedures that prevented him from reaching out to the magistrate directly or from drafting a quick warrant application in his cruiser without the approval of an AUSA. By the time Manubolu was heading off to the hospital to get medical treatment, a reasonable officer in Ranger Dominy‘s shoes might have worried he would not hear from an AUSA within sufficient time to get a warrant and a blood draw before Manubolu‘s body destroyed the evidence (as an aside, a reasonable officer might have also thought the medical treatment would have further delayed a blood draw or negatively affected the BAC evidence). See Mitchell, 139 S. Ct. at 2537-38. McNeely does not require law enforcement to pursue a warrant until the very last moment before
While we are sympathetic to the district court‘s concern about permitting “end-runs” around McNeely, we believe that the existing totality of the circumstances framework adequately
III. CONCLUSION
Contrary to the district court‘s concern, we are not creating a per se exigency for late-night DUI stops because our conclusion does not rest solely on the unnecessarily long warrant procedure. Cf. Commonwealth v. Trahey, 228 A.3d 520, 535-36 (Pa. 2020) (overturning Superior Court‘s finding of exigency in part because of tension with prohibition of per se exigencies, where a primary factor in the Superior Court‘s decision was that obtaining a warrant would have taken longer than two hours). Given the totality of the circumstances, the government has met its burden to show it was reasonable for Ranger Dominy to think exigent circumstances existed when pressing investigative responsibilities took his and other officers’ attention, when he could not reach the on-call AUSAs to begin the telephonic warrant process, when the federal and state warrant procedures were protracted, when he reasonably estimated that the evidentiary reliability of
We reverse and remand with instruction to deny the motion to suppress.
-Dubitante Opinion Follows-
KAYATTA, Circuit Judge, dubitante. To decide this case, we need answer two questions: How long would a reasonable officer have thought it would take to get a warrant, once it occurred to the officers at approximately 3:15 a.m. that there was probable cause to get a blood alcohol concentration (BAC) reading?32 And how much time could pass before the dissipation of alcohol in the blood would significantly undermine the ability to determine BAC at the time of the accident?
The record reveals that getting a state warrant in the early morning hours was known to take three to five hours. The record does not directly reveal how long officers could expect to wait for issuance of a federal warrant. But it does describe in detail the steps involved, and we know that it took over six hours from the time when an AUSA answered Dominy‘s call until a warrant was issued.33 So I see no reason to think that, under procedures in place at the time of the accident, a federal warrant could have been obtained more quickly than could a state warrant. And given that we cannot decide the case without some estimate of the
What is entirely missing from the record is the amount of time that Hardy could wait before BAC dissipation proved problematic. The majority tries to close this evidentiary gap by pointing to the majority opinion in Mitchell v. Wisconsin, which states that “it is ‘a biological certainty’ that ‘[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour.” 139 S. Ct. 2525, 2536 (2019) (alteration in original) (quoting Missouri v. McNeely, 569 U.S. 141, 169 (2013) (Roberts, C.J., concurring)). Mitchell supports this statement of scientific fact by quoting from Chief Justice Roberts’ concurring and dissenting opinion in McNeely. But the Chief Justice made no claim in McNeely that that dissipation rate was a “biological certainty.” Rather, his opinion simply states that dissipation itself is a biological certainty. He then cites a forensic handbook for the proposition that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour.”34
McNeely, 569 U.S. at 169 (citing Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed. 2012)).
Nor does that figure appear to be generally accepted -- even by the Court. The majority in McNeely itself uses a different range for the rate of reduction of BAC: “0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed,” based on trial testimony in that case. Id. at 152. The majority also acknowledges that “[m]ore precise calculations of the rate at which alcohol dissipates depend on various individual characteristics . . . and the circumstances in which the alcohol was consumed.” Id. (citing Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437-41 (L. Kobilinsky ed. 2012)).35
As to the subject of evidentiary impairment, the difference between the McNeely rate and the Mitchell rate is huge.
All of this suggests to me that a remand would be very useful because it might let doctors or scientists weigh in on the correct dissipation range rather than relying on judges and Google searches. But given the pronouncement in Mitchell of “a biological certainty,” I understand why the majority uses the Mitchell range, so I will do the same.
The potentially bigger problem is that the record also fails to contain any information concerning how quickly BAC dissipation would impair the government‘s ability to use a blood draw reading to ascertain BAC at a time prior to the blood draw. The majority makes no effort to fill in this gap. Yet the majority must have some estimate in mind. After all, if the officers could have waited until 8:30 a.m., for example, and still received the needed evidence from a BAC measurement, then they may have had time to get a warrant, given that Deputy Ranger Belskis was available beginning at approximately 5:00 a.m.
Deciding this case turns on filling this gap in the record. The traditional way to deal with a lack of such significant information is to hold it against the party with the burden of proof. Alternatively, we might remand the case so that expert testimony could shed light on how the passage of time affects the ability to reliably estimate BAC at a time prior to the blood draw. As discussed above, remand would be my preference.
To instead decide this case on the existing record, we must do some math, based on the range of Mitchell dissipation rates accepted by the majority. If the McNeely range (a decrease of 0.01 to 0.025 per hour) is correct, then the efficacy of the BAC had already diminished materially by the time Hardy got Manubolu to the hospital. Its efficacy would have diminished substantially further long before a warrant could have been available. This remains true even if the officers had started trying to get a warrant right away, and even if the sleeping AUSA had been reached on the first call. For example, suppose Manubolu had a BAC of 0.05 at 4:50 a.m. (two hours after the accident).36 That would tell you that the BAC at the time of the accident was between 0.07 (two hours at a dissipation rate of 0.01 per hour) and 0.10 (two hours at a dissipation rate of 0.025 per hour). That is a
I suppose it is possible that experts might have a way to reduce the uncertainties created by the wide range in possible dissipation rates. This is another reason why I would likely remand if left to my own devices. But since we are not remanding for such a determination, we should make clear that the outcome of this case really does not turn on most of the facts and discussion contained in the majority opinion. Even if there had been a dozen officers with nothing to do, probable cause to seek a BAC reading was ascertained at 3:15 a.m., so receipt of a warrant before 6:15 a.m. (at the earliest) would have been quite unlikely.
As a practical matter, if a breathalyzer is not available, and a blood draw is the only option, then a warrant will not be required unless it can be obtained much sooner than three hours after the accident. As to how much sooner, we need more of a record to say.
The district court expressed concern that accepting time delays in procuring warrants as an exigency could render McNeely largely a dead letter. But McNeely itself provides that “exigent
Nor is this to say that the mere fact that BAC levels dissipate per se negates the need for a warrant. Rather, it is to say that if the only choice is between getting a BAC reading without a warrant or losing a usable BAC reading due to three hours’ delay in waiting for a warrant, police need not get a warrant, assuming the scientific facts are as Mitchell and our limited record indicate.
I do agree with my colleagues that the district court‘s sense of pique regarding the diligence of the on-duty AUSAs and the cumbersome nature of the warrant procurement procedures
For the foregoing reasons, while I do not dissent and indeed strongly suspect that no warrant was required in this case, I do think the preferable course would be to vacate and remand for further factfinding on the crucial issue of how much time can pass before the efficacy of a BAC reading is undermined.
Notes
Absent exigent circumstances, an operator cannot ordinarily be required to submit blood samples for the purpose of determining blood alcohol and drug content unless it occurs through a search warrant. An authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has [driven while intoxicated] shall get a search warrant, except when exigent circumstances exist, to obtain any blood samples from the operator for the purpose of determining blood alcohol and drug content.