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State v. Rodriguez6/10/2004
d a sample of Rodriguez's blood. Swensen testified that he received the call at 5:10--no more that twenty-five minutes after the accident occurred. Swensen further indicated that he first went to the University Hospital--where Stewart had been taken--and then to LDS Hospital, where he found Rodriguez. There, he waited an additional twenty to twenty-five minutes before the department's authorized blood technician arrived. Only then did Swensen inform Rodriguez that he was there to supervise the extraction of her blood "as we do in accidents."
**19 It is clear from the record that the decision to extract Rodriguez's blood was made soon after the accident occurred, at a time "when courts are open and search warrants can be readily requested" either in person or by telephone. State v. Northrup, 756 P.2d 1288, 1292 (Utah Ct.App.1988). Yet the supervising officer testified that he made no effort to obtain a warrant. The record is also devoid of any indication that Swensen considered requesting a warrant. Moreover, the State presented no testimony that anyone, at any time, had assessed the difficulty and time required to obtain a proper search warrant to obtain Rodriguez's blood. Rather, both officers seemingly proceeded with the understanding that a warrant was not necessary to extract Rodriguez's blood.
**20 Under these circumstances, we conclude that the State has failed to meet its burden of proving exigency. Neither officer made any efforts to procure a warrant, or even inquire about the availability of a magistrate, prior to performing the blood draw on Rodriguez. More troubling is Officer Swenson's statement that the blood draw was to be done "as we do in accidents," which suggests that officers of the Salt Lake City Police Department view such blood draws as a matter of routine. However, exigency is the opposite of routine, and a reasonable belief that an emergency is at hand is always required if warrantless action is to be justified on the basis of exigent circumstances.
**21 The evanescent nature of blood-alcohol evidence does not, per se, convert every alcohol-related blood draw into an emergency. Without some reasonable belief that the steady dissipation of blood-alcohol constitutes an emergency under the particular circumstances, a warrant must be obtained. The record does not reflect such a reasonable belief in this case; consequently, the evidence arising from the warrantless draw of Rodriguez's blood must be suppressed.
CONCLUSION
**22 The trial court erred in admitting the evidence obtained through the warrantless extraction of Rodriguez's blood. The exigent circumstances doctrine requires the State to show that the situation amounted to an emergency. Here, however, the State has shown only that the warrantless blood draw occurred pursuant to routine procedure followed by the Salt Lake City Police Department. Accordingly, we reverse Rodriguez's conviction for driving under the influence of alcohol and remand, instructing the trial court to suppress all evidence derived from the warrantless blood draw. [FN4]
FN4. Having failed to present sufficient evidence to support the trial court's conclusion, the State is foreclosed any opportunity to revisit this issue on remand. See State v. Topanotes, 2003 UT 30, 11, 76 P.3d 1159 (stating "we have previously held that when the State has the
burden of proof and the record on appeal fails to sustain any theory of admissibility, the State 'is not entitled to a remand to [possibly] put on new evidence' " (quoting State v. Hodson, 907 P.2d 1155, 1159 (Utah 1995))). Because Topanotes also forecloses any possible remand for the trial court to enter additional factual findings, we remand directing the trial court to grant Rodriguez's motion to suppress.
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