State v. Niceloti-Velazquez (ICA December 5, 2016)
Background. Bernard Niceloti-Velazquez was charged with operating a vehicle while under the influence of an intoxicant after he had been arrested and subjected to a mandatory testing of his blood. Velazquez moved to suppress the blood draw on the grounds that it was a warrantless search and the prosecution could not justify the intrusion. The motion was denied and he was convicted. Velasquez appealed.
Mandatory Blood Draws Regulated by Statute . . . The authority to draw blood without consent from the driver comes from HRS § 291E-21:
In the event of a collision resulting in injury or death and if a law enforcement officer has probable cause to believe that a person involved in the collision has committed a violation of section . . . 291E-61 . . . the law enforcement officer shall request that a sample of blood or urine be recovered from the vehicle operator or any other person suspected of committing a violation of section . . . 291E-61.
The constitution is also at work:
[N]onconsensual, warrantless blood extraction does not violate the fourth amendment to the United States Constitution . . . so long as (1) the police have probable cause to believe that the person is [driving under the influence] and that the blood sample will evidence that offense, (2) exigent circumstances are present, and (3) the sample is obtained in a reasonable manner.
State v. Entreken, 98 Hawaii 221, 232, 47 P.3d 337, 347 (2006).
So if it’s Nonconsensual, is it Exigent? Exigency is an exception to the warrant requirement. Exigent circumstances arise “when the demands of the occasion reasonably call for an immediate police response. More specifically, it includes situations presenting an immediate threatened removal or destruction of evidence.” Id. It is evaluated on a case-by-case basis. Id.
Here, the ICA examined if the district court’s findings of fact supported exigency. The district court found that the dissipation of blood was in itself an exigent circumstance justifying the warrantless blood draw. The ICA disagreed. The Supreme Court of the United States held that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552, 1568 (2013). The ICA vacated the judgment and remanded it back for new trial.