Opinion
Nos. CR03-324175, MV03-376584
November 8, 2006
MEMORANDUM OF DECISION
Before the court is the defendant Daniel D'Andrea's motion to suppress results of a blood toxicology report. The court held a suppression hearing on February 9, 2006. The record upon which the motion is decided consists of the hearing testimony, a search warrant, including affidavit and application, and the defendant's medical record from the hospital, all entered into evidence at the hearing. The record reveals the following facts. On the evening of August 15, 2003, the defendant was involved in an automobile accident at the intersection of South Main Street and Platts Mill Road in Waterbury. The defendant's truck collided with a motorcycle causing ultimately fatal injuries to the motorcycle's driver. Both the defendant and the motorcycle driver were taken to the hospital via ambulance.
Officer John Gavaletz was called to the scene as a traffic reconstructionist to investigate the accident. Gavaletz spoke with a witness who told him that the defendant had been driving erratically, appeared intoxicated and smelled strongly of alcohol. Inspection of the defendant's truck revealed two empty beer bottles and three full beer bottles which were cool to the touch, along with a plastic bag containing what Gavaletz recognized as marijuana.
Gavaletz testified that he proceeded to the hospital where he was informed that the defendant's blood had been drawn. A second officer, Patrick Hamel, who was assigned to the hospital to monitor the defendant and inform Gavaletz if the defendant was to be discharged, testified that he did not request that the defendant's blood be drawn. Gavaletz spoke with the defendant who agreed to come to the police station to give a statement concerning the accident. On August 20, 2003, Gavaletz applied for and was granted a search and seizure warrant for the defendant's blood toxicology report from the hospital. The defendant was charged with eight counts, including operating while under the influence in violation of General Statutes (Rev. to 2003) § 14-227a(a) and manslaughter in the second degree with a motor vehicle in violation of General Statutes (Rev. to 2003) § 53a-56b(a). On March 8, 2004, the defendant moved to suppress the test results on the ground that the search and seizure of the defendant's blood violated the fourth and fourteenth amendments to the United States constitution and article first, §§ 7, 8 and 9, of the Connecticut constitution.
General Statutes (Rev. to 2003) § 14-227a(a) provides in relevant part:
No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.
A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105 . . . (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.
General Statutes (Rev. to 2003) § 53a-56b(a) provides: "A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug."
The fourth amendment to the United States constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The fourteenth amendment to the United States constitution provides in relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The fourth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The defendant does not provide an adequate independent legal analysis of the basis of his claim under the Connecticut constitution and therefore the court will only address his claim under the United States constitution. See Aselton v. East Hartford, 277 Conn. 120, 153, 890 A.2d 1250 (2006).
Following the suppression hearing, the court made a finding of fact on June 8, 2006. While the court found the testimony of Gavaletz and Hamel to be credible, it nonetheless found that the defendant's blood had been drawn at police request. The court requested additional briefing from the parties as to whether the taking of blood constituted a warrantless search, and whether the inevitable discovery or exigent circumstances exceptions to the warrant requirement applied in this circumstance.
DISCUSSION
The initial inquiry that must be made is whether the police action in ordering the defendant's blood to be drawn and tested is a search for the purposes of the fourth amendment. "[C]ompulsory administration of a blood test . . . plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment expressly provides that `the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .' Such testing procedures plainly constitute searches of `persons,' and depend antecedently upon seizures of `persons,' within the meaning of that Amendment." (Emphasis in original.) Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also State v. Acquin, 177 Conn. 352, 354, 416 A.2d 1209 (1979). Thus, the taking of the defendant's blood here was a search and seizure.
"Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause . . ." (Internal quotation marks omitted.) Katz v. United States, CT Page 20687 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is because "[a] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." (Internal quotation marks omitted.) State v. Aviles, 277 Conn. 281, 293, 891 A.2d 935 (2006), cert. denied (75 U.S.L.W. 3166, October 2, 2006). In the present case, the police did not secure a warrant prior to requesting the defendant's blood be drawn. The search was therefore illegal, and the evidence obtained inadmissible, unless an exception to the warrant requirement pertains.
1. Inevitable Discovery
"Connecticut courts, along with the vast majority of all courts, both state and federal, recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court." (Internal quotation marks omitted.) State v. Anderson, 67 Conn.App. 436, 441 n. 8, 787 A.2d 601 (2001). "Under the inevitable discovery rule, evidence illegally secured in violation of the defendant's constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means . . . To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation." (Citation omitted.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986). "[T]he interest of society in deterring unlawful police conduct and the public interest in having [fact finders] receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred." (Emphasis in original; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 337, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000). "Thus, `if the [state] can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.'" Id., quoting Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Gavaletz testified that had he not been informed that the defendant's blood had been drawn, he would have conducted a field sobriety test, asked the defendant to consent to a blood, breath or urine test and otherwise would have processed the defendant as any other operator suspected of driving under the influence. The state argues that such procedure would have inevitably led to discovery of evidence of the defendant's blood alcohol content. General Statutes (Rev. to 2003). § 14-227b(a) in relevant part provides that "[a]ny person who operates a motor vehicle in this state shall be deemed to have given such person's consent to a chemical analysis of such person's blood, breath or urine . . ." Subsection (b) of § 14-227b provides that if an operator refuses to submit to such a test "the test shall not be given." This subsection also allows for evidence of such refusal to be used in a criminal prosecution and for suspension of the operator's driver's license. General Statutes § 14-227b(b).
In State v. Taylor, 12 Conn.App. 427, 531 A.2d 157 (1987), our Appellate Court discussed the requirements of § 14-227b(b). "Connecticut has declined to authorize its police officers to administer a blood-alcohol test against the suspect's will. Rather, to avoid violent confrontations, the . . . statute [§ 14-227b(b)] permits a suspect to refuse the test, and indeed requires police officers to inform the suspect of his right to refuse . . . This permission is not without a price, however. [Connecticut] law authorizes the [commissioner of motor vehicles], after providing the person who has refused the test an opportunity for a hearing, to revoke for [six months] . . . the person's license to drive . . ." (Internal quotation marks omitted.) Id., 433.
Such statutory language as contained in § 14-227b belies the idea that evidence of an operator's blood alcohol content would be discovered inevitably in an instance such as the present case. The consent of the defendant cannot be presumed; he could have refused to submit to testing upon penalty of having such refusal used against him in court and suspension of his license to drive. Therefore, § 14-227b does not support the state's inevitable discovery argument.
The state also maintains that because the accident involved in this case resulted in a fatality, the police were entitled to a blood sample from the defendant. In support of this argument, the state cites General Statutes (Rev. to 2003) § 14-227c, which provides in relevant part: "As part of the investigation of any motor vehicle accident resulting in a fatality, the Chief Medical Examiner . . . an associate medical examiner, a pathologist . . . or an authorized assistant medical examiner . . . shall order that a blood sample be taken from the body of any operator or pedestrian who dies as a result of such accident. Such blood samples shall be examined for the presence and concentration of alcohol . . . To the extent provided by law, a blood or breath sample may also be obtained from any surviving operator whose motor vehicle is involved in such an accident . . . The blood samples obtained from the surviving operator shall be examined for the presence and concentration of alcohol . . ." (Emphasis added.)
The plain language of § 14-227c stands in opposition to the state's inevitable discovery argument. The legislature's use of "[t]o the extent provided by law" and "may" indicates that the state's ability to take blood from an operator surviving a fatal accident is permissive and not mandatory. This is underscored by the contrast contained in the statute, providing the state mandatory authority to take blood from a deceased operator in similar circumstances. Presumably, to comply with the statute, the police here would have had to obtain the defendant's consent to release his medical records or would have had to seek a search and seizure warrant prior to ordering the defendant's blood drawn.
The state has not demonstrated that evidence of the defendant's blood alcohol level "would have been ultimately discovered by lawful means." State v. Badgett, supra, 200 Conn. 433. The defendant's blood toxicology report is therefore not admissible under the inevitable discovery exception to the warrant requirement.
2. Exigent Circumstances
"Searches conducted pursuant to the emergency or exigent circumstances doctrine are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions." State v. Aviles, supra, 277 Conn. 293. "The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization." (Internal quotation marks omitted.) Id. "The burden is on the state to establish the facts that justify the application of the exigent circumstances doctrine." Id., 292. Such burden is satisfied through presentation of "particularized evidence . . . [and] only by demonstrating specific and articulable facts . . ." (Internal quotation marks omitted.) Id., 298.
The state argues that evidence of the defendant's blood alcohol level would have been lost if not obtained within a reasonable time. In support of its argument, the state cites State v. Kristy, 11 Conn.App. 473, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). In Kristy, the defendant challenged admission of test results from two blood samples and a urine sample taken from him in the hospital following a fatal car accident. One of the blood samples and the urine sample were taken at police request and without a warrant. The defendant argued that under Schmerber, supra, 384 U.S. 757, a warrantless search and seizure of a suspected drunk driver's blood required prior arrest. The Appellate Court disagreed and held that a formal arrest is not "an absolute prerequisite to a blood test for alcohol absent consent." State v. Kristy, supra, 480.
The holding in Kristy does not require a finding of exigent circumstances in the present case. While the Appellate Court in Kristy found that the trial court did not err in allowing evidence of the blood tests admitted, the opinion does not address the exigent circumstances exception to the warrant requirement directly. Further, the record in Kristy, as related in the Appellate Court's opinion, contained more facts than does the present record, including the precise times of the accident and subsequent blood and urine tests. Here, the record does not contain any information that supports the finding that an exigency actually existed. Neither of the state's witnesses provided any evidence as to the time of the defendant's admission to the hospital or the time that would have been necessary to obtain a search and seizure warrant. The state also failed to provide evidence as to the time the blood test was requested. In order for the court to find that exigent circumstances applied to the facts of this case, the law would have to be that circumstances such as these, i.e., where a person is suspected of driving under the influence, are per se instances of exigent circumstances. Absent controlling authority to this effect, this court will not make such a finding.