When Warrantless Blood Draws Still Require a Warrant
State v. Hewitt (ICA February 16, 2021)
Background. Cyrina Hewitt was charged with driving under the influence and driving without a license. Hawai'i County Police Department Officer Chandler Nacino went to the Kona Community Hospital emergency room at around 1:00 a.m. on July 3, 2014 to investigate a possible assault. Hospital staff informed him that Hewitt was dropped off there by an unknown male. Officer Nacino went to see Hewitt at her bedside. Hewitt was lying in a hospital bed and awake. She was disoriented. The officer saw she had contusions on her face and her eyes were swollen shut. She also had a cut on her ear. She provided Officer Nacino with her name and date of birth, but she did not know where she was or why she was in the hospital. The officers tried to question her. They asked if she was assaulted and she provided incoherent answers. According to Officer Nacino, she “appeared to be out of it and had slurred speech.” She told the officer that her eyes were swollen because of pink eye and later said it was a stye. Officer Nacino suspected that she was under the influence but did not confirm if she had been given medication in the emergency room.
Paramedics told Officer Nacino that there was a pickup truck in the bushes near the intersection of Queen Kaahumanu Highway and Kuakini Highway. The medics gave the officer the truck’s license plate number. Officer Nacino contacted Sgt. Mekia Rose. Sgt. Rose went to the location and found the truck. Sgt. Rose saw damages to the front end and deployed airbags. Sgt. Rose learned that the registered owner was Cyrus Hewitt and found Hewitt’s state identification card in a wallet inside the truck. The information was relayed to Officer Nacino.
Officer Nacino returned to the hospital bed and told Hewitt the truck had been found. He asked if she was driving it. She said she was driving to a friend’s house and parked the truck in the bushes. Officer Nacino stopped questioning her and told her that they were going to take her blood. They took a blood draw without a warrant and used it against her at trial.
Hewitt filed a motion to suppress the statement that she was driving and evidence of her blood alcohol concentration. The District Court with the Hon. Judge Margaret K. Masunaga presiding denied the motions. At trial, Hewitt objected to the admission of her statement on the grounds that the trial court failed to determine if it was voluntarily given. The objection was overruled. She was found guilty and appealed.
Disoriented in a Hospital Bed is not “in Custody” for Miranda Purposes. A person in custody cannot be interrogated without first being apprised of the right to remain silent, the right to counsel, and the right to have counsel provided even if the person cannot afford it. Miranda v. Arizona, 384 U.S. 436 (1966). “Custody” is based objectively by reviewing the totality of the circumstances. State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982). Circumstances include the place and time of the interrogation, the length of the interrogation, nature of the questions, conduct of the police, and if the investigation focused on the suspect. Id.
Persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive[.]
Id. at 482, 643 P.2d at 544. The ICA determined that Hewitt was not in “custody” requiring Miranda warnings before Officer Nacino questioned her about whether she had been driving. The ICA rejected Hewitt’s argument that she was trapped in a hospital bed and not free to leave. According to the ICA, her “inability to leave was not the result of being detained by Officer Nacino or any other law enforcement authority.” The ICA explained that even though Officer Nacino returned to Hewitt’s bedside with the knowledge that her car was in the bushes, there was no probable cause to arrest because there was nothing suggesting that she had been driving. The deployed airbags could have injured her as a passenger. That made this closer to a temporary detention for brief questioning and, according to the ICA, the three-hour questioning did not arise to “sustained and coercive” questioning.
ICA Vacates and Remands to Determine Voluntariness. At trial, Hewitt objected to the admission of her statement pursuant to HRS § 621-16:
No confession shall be received in evidence unless it is first made to appear to the judge before whom the case is being tried that the confession was in fact voluntarily made.
The ICA held that the trial court erred in stopping trial and conducting a voluntariness hearing. After all, there was some evidence that Hewitt sustained head trauma, was disoriented, and incoherent.
The Warrantless Blood Draw Needed a Warrant. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated[.]” Haw. Const. Art. I, Sec. 7. Removing a person’s blood is a search for constitutional purposes and a warrant is generally required unless an exception to the warrant requirement is established. See Schmerber v. California, 384 U.S. 757 (1966). Moreover, HRS § 291E-21(a) allows the police to extract blood “from the operator of any vehicle involved in a collision resulting in injury to . . . any person, as evidence that the operator was under the influence of an intoxicant.” The warrantless removal of blood “does not offend the Hawai'i Constitution so long as (1) the police have probable cause to believe that the person has committed a DUI offense and (2) exigent circumstances are present, and (3) the sample is obtained in a reasonable manner.” State v. Won, 137 Hawai'i 330, 344 n. 26, 372 P.3d 1065, 1079 n. 26 (2015).
The Evolution of Exigency in Drunk Driving Cases. The ICA observed that the exigency surrounding these kinds of cases has undergone a change recently. In State v. Entrekin, 98 Hawai'i 221, 232-233, 47 P.3d 336, 347-348 (2002), the Hawai'i Supreme Court held that the dissipation of alcohol within a person’s bloodstream constitute valid exigent circumstances excusing the police from obtaining a search warrant. Of course, the HSC at the time was relying on Schmerber v. California, supra. Decades later, however, the SCOTUS 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, 569 U.S. 141, 165 (2013). The prosecution must “develop the record to demonstrate that the police officers were justified to act without a warrant[.]” State v. Niceloti-Velazquez, 139 Hawai'i 203, 205, 836 P.3d 487, 489 (App. 2016).
Here, the ICA held that the prosecution failed to meet its burden. Although Hewitt was slurring, Officer Nacino could not rule out that it might have been caused by head trauma. There was no evidence of an odor of alcoholic beverages on her breath or body or any evidence of alcohol consumption in the vehicles. Moreover, there was no effort to apply for a warrant. Based on this, the prosecution could not establish exigency to justify the warrantless blood draw. The ICA vacated the judgment.