After a drunk driver kills his passenger in a roll-over crash, his blood may be tested before the driver regains consciousness in order to secure evidence before it disappears.

2015-M-298       State of Minnesota, Respondent, vs. Derek Lawrence Stavish, Appellant.

MAJORITY:  Appellant Derek Stavish was charged with three counts of criminal vehicular operation resulting in death, two counts of fourth-degree driving while impaired, reckless driving, and careless driving arising out of a single-vehicle rollover crash on June 18, 2012, that resulted in the death of Brent Lehnen and serious injuries to Stavish. 

Stavish moved to suppress alcohol concentration test results from a blood draw taken after the accident on the grounds that his blood was drawn without a warrant and without his consent.  The district court granted the motion to suppress concluding, in part, that the State failed to satisfy the exigent circumstances exception as applied in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013).  The court of appeals reversed, concluding that the State established exigent circumstances that justified the warrantless search.  State v. Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014).  Because we agree that the State established that exigent circumstances justified the warrantless blood draw in this case, we affirm.

HELD:  1. The State established that it cannot prove an essential element of two counts of the complaint if the alcohol concentration evidence is suppressed, and therefore satisfied the critical impact requirement to appeal the pretrial order.

 2. Based upon the totality of the circumstances, the State established that law enforcement was faced with an emergency in which the delay necessary to obtain a warrant made a warrantless blood draw reasonable under the exigency exception to the Fourth Amendment.

 Affirmed.

DISSENT:  Justice Gildea opined: “I respectfully dissent and join Justice Page’s dissent in part.  I agree with Justice Page that the State did not meet its burden to prove exigency, and I join in sections I and II of Justice Page’s dissent on the exigency issue except to the extent he discusses State v. Bernard, 859 N.W.2d 762 (Minn. 2015).  

For the reasons set forth in my separate dissent in State v. Lindquist, ___ N.W.2d ___ (Minn. Aug. 19, 2015), I would not apply the good faith exception in this case.

DISSENT:  Justice Page opined: “I respectfully dissent.  In this case, the court continues its efforts, begun in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and reiterated in State v. Lindquist, ___ N.W.2d ___ (Minn. Aug. 19, 2015), to protect its erroneous decision in State v. Shriner, 751 N.W.2d 538 (Minn. 2008) (establishing that the evanescent nature of alcohol in the

bloodstream is a single-factor exigency), abrogated by Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013) (holding that, contrary to this court’s decisions in Shriner, the dissipation of alcohol in the blood does not create a per se exigency), and Shriner’s progeny.  In Bernard, we “fundamentally depart[ed] from longstanding Fourth Amendment principles” to justify a warrantless breath test as a valid search incident to arrest—“creating a novel bright-line rule” that “simply readopts a per se exigency under a different name.”  859 N.W.2d at 774, 779 (Minn. 2015) (Page, J., & Stras, J., dissenting jointly).  Here, the court doubles down and again “readopts a per se exigency,” id. at 779, this time by refusing to hold the State to its “heavy burden” to rebut the presumption of unreasonableness associated with a warrantless search of the person, Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984), by establishing that “the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” Schmerber v. California, 384 U.S. 757, 770 (1966) (citation omitted).  The record upon which the court finds the existence of exigent circumstances is so minimal that the decision here, in

effect, nullifies the warrant requirement in every suspected drunk-driving case involving an accident with serious injuries—contradicting basic Fourth Amendment principles and the Supreme Court’s decision in McNeely.

Dietzen (Anderson, Stras, Wright, and Lillehaug)

Dissent:   Gildea

Dissent:  Page

[GILDEA]  [CRIME] [DWI] [FOURTH] [GOOD FAITH] [MURDER]

A14-771,