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State v. Blank2/27/2004
of evidence through the body's dissipation of alcohol. And the elements required for a constitutionally permissible search under Schmerber v. State of California are the same for both subsections: (1) probable cause to believe that the person to be tested has committed a crime; (2) probable cause to believe that a breath test will produce evidence relevant to the crime; and (3) exigent circumstances. Because the rationale and the constitutional requirements for subsections .031(a) and .031(g) are the same, there is no reason to recognize the inherent exigency created by the presence of alcohol in the body when subsection .031(a) is in play but fail to do so when the subsection in question is .031(g).
Today's opinion makes clear that it is probable cause, not the fact of the arrest, that justifies a search for body alcohol content. As construed today, the requirements of subsections .031(a) and .031(g) are parallel. When the police officer on the scene can make the probable cause determinations required by Schmerber under subsection (a) as to crimes (a) applies to, he can administer a breath test. There is no reason to require more when the officer makes the same determinations in a case arising under subsection (g) as to crimes to which that subsection applies.
Today's opinion holds that the police officer who tested Blank had probable cause to believe that she had just been involved in a motor vehicle accident causing death, that she had committed a crime, and that a breath test for alcohol would produce relevant evidence. I agree with these conclusions and believe that since they parallel the constitutionally required elements for a search under subsection .031(a) we should conclude, as in cases arising under .031(a), that exigent circumstances sufficient to justify the breath test that was given were present. As the Fourth Circuit stated in United States v. Reid:
Society has a recognized interest in protecting its citizens from drunk drivers. Breathalyzer tests cause a lesser intrusion than blood tests. Time is of the essence when testing for alcohol in the bloodstream. The combination of these factors sets out exigent circumstances which are sufficient to require that the police be allowed to test drunk drivers without first having to obtain a warrant.
For these reasons, I conclude that the exigent circumstances exception to the warrant requirement has been satisfied and would therefore remand this case with instructions to reinstate Blank's conviction.
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