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State v. Engesser4/23/2003
presented in the case, one of which was that the defendant was under arrest at the time of the search. Schmerber, 384 US at 772, 86 SCt at 1836, 16 LEd2d at 920. However, the holding in Schmerber did not turn solely on the existence of a valid prior arrest. Rather, the Court relied heavily on the evanescent nature of blood alcohol and the danger that important evidence would be forever lost, creating exigent circumstances under which the blood draw was appropriate. 384 US at 770-771, 86 SCt 1826, 1835-1836, 16 LEd2d at 919-920. This reading of Schmerber is reinforced by the Court's subsequent decision in Winston v. Lee, which noted that the blood test in Schmerber "fell within the exigent circumstances exception to the warrant requirement." 470 US 753, 759, 105 SCt 1611, 1616, 84 LEd2d 662, 668 (1985). But we are not limited to Schmerber's holding. Later Supreme Court decisions make it clear that formal arrest is not always required.
[ .] Seven years after the Court decided Schmerber, it handed down Cupp v. Murphy, 412 US 291, 93 SCt 2000, 36 LEd2d 900 (1973). In Cupp, a husband was brought to the station house for questioning after his wife was strangled. During questioning, the officers noted a dark stain on the husband's fingernails. Knowing that evidence of strangulation can often be found under the perpetrator's fingernails, the officers took scrapings from the husband's fingernails over his protest, without arrest and without a warrant. Id. at 292, 93 SCt at 2002, 36 LEd2d at 903-04. The Court found no violation of the Fourth Amendment and held that a warrantless body search may be conducted despite failure to formally arrest the suspect, when (1) the character of the search is highly unintrusive; (2) the evidence sought will be forever lost absent the search; and (3) sufficient probable cause exists to support a formal arrest. Id. at 296, 93 SCt at 2004, 36 LEd2d at 906. We find Cupp to be controlling.
[ .] Although the search in Cupp was arguably less intrusive than the taking of a blood sample, blood "tests are commonplace in these days of periodic physical examination and experience teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain." Schmerber, 384 US at 771, 86 SCt at 1836, 16 LEd2d at 920. As in Schmerber, the defendant here is not "one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing[.]" Id. Engesser was already in the hospital being treated for serious injuries and the record indicates that other blood tests were being done. This blood seizure here meets the first prong of Cupp.
[ .] We have consistently acknowledged the highly evanescent nature of blood alcohol. It is undeniable that the simple passage of time obliterates this valuable evidence. Lacking a blood draw within a relatively short time, law enforcement officers cannot confirm the driver's level of impairment at the time he or she was driving. Three hours had already elapsed since the accident when Engesser's blood was drawn. The more time that went by the less likely the evidence could be obtained at all. Evidence of Engesser's intoxication would have been "forever lost" without the blood draw.
[ .] Finally, we come again to the issue of probable cause. As noted above, it is not the subjective beliefs of the officer but rather the objective circumstances from which we determine the existence of probable cause. At the time the blood was drawn, the following facts existed:
(1) Engesser was found lying approximately 10 feet from the driver's side door of the Corvette.
(2) Emergency crews used the Jaws of Life to extricate Finle
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