State v. Lerette, WD

• Decision Date: 03 August 1993
• Docket Number: No. WD,WD
• Citation: 858 S.W.2d 816
• Parties: STATE of Missouri, Appellant, v. James Lee LERETTE, Jr., Respondent. 47179.
• Court: Missouri Court of Appeals

Page 816

858 S.W.2d 816

STATE of Missouri, Appellant, v. James Lee LERETTE, Jr., Respondent.

No. WD 47179.

Missouri Court of Appeals Western District.

Aug. 3, 1993.

Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for appellant.

William J. Esely, Bethany, for respondent.

Before TURNAGE, P.J., and BRECKENRIDGE and SPINDEN, JJ.

TURNAGE, Presiding Judge.

James Lee LeRette, Jr., was charged with driving a motor vehicle while intoxicated. Before trial, LeRette filed a motion to suppress the results of a blood alcohol analysis of a sample of LeRette's blood. The trial court sustained the motion apparently on the ground that the blood sample was taken without LeRette's consent and because LeRette had not been arrested prior to the taking of the blood sample. On appeal, the State contends that the warrantless seizure of the blood sample was permissible because of exigent circumstances. Reversed.

On July 17, 1992, at approximately 9:30 p.m., Trooper Kevin Fender was called to respond to a one-car accident on Route N in Harrison County about 3 miles east of Blythedale. When Fender arrived at the scene, LeRette was being loaded into an ambulance. Fender testified that LeRette appeared to be conscious at that time but did not talk with him.

Fender remained at the scene and spoke with Brian Halter, a passenger in the vehicle who indicated that LeRette had been driving the car at the time of the accident. Fender testified that he found several beer cans among the wreckage debris, including a partially full beer can in a Budweiser "coolie" holder which was found next to the wrecked vehicle. After talking with Halter and taking some measurements at the scene, Fender went to the hospital to see if he could speak with LeRette.

Fender arrived at the hospital within an hour of the accident and found LeRette in a bed with a tube down his throat. Fender testified that at that time, he did not know whether LeRette was conscious or unconscious but that he was unable to communicate with LeRette and, as such, was unable to obtain consent to take a blood sample. Thereupon, Fender directed a hospital employee to take a blood sample from LeRette. The blood alcohol test later revealed that LeRette's blood alcohol level was .11%. Fender testified that because there was some uncertainty as to whether LeRette would live or die, no arrest was made until a month later.

LeRette filed a motion to suppress the results of the blood alcohol test which the trial court sustained and the State appealed.

On appeal, the State contends that the seizure of the blood sample was permissible under the "exigent circumstances" exception to the Fourth Amendment search warrant requirement. LeRette claims, however, that the blood test results were properly excluded from evidence because LeRette had not been arrested prior to the taking of the blood sample in violation of Missouri's Implied Consent law, § 577.020, RSMo 1986, which requires both probable cause to believe the person driving the vehicle was intoxicated and an arrest. LeRette also claims that the seizure of his blood sample without his consent was an unreasonable search and seizure in violation of both the state and federal constitutions. However, LeRette's argument that the taking of the blood sample violated Missouri's Implied Consent law is misplaced because the State is not attempting to justify the search under implied consent, but rather under the "exigent circumstances" exception to the search warrant requirement.

The case which the trial court relied upon, State v. Copeland, 680 S.W.2d 327 (Mo.App.1984), does not address the issue of exigent circumstances but rather addresses the issue of implied consent under Missouri law. Moreover, the court in Copeland specifically noted that it was not addressing the issue of whether a person must always be arrested as a prerequisite to having blood taken. Id. at 331. The issue before this court is whether the taking of LeRette's blood sample without consent falls under the exigent circumstances exception to the warrant requirement.

In Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that a police officer was not required to secure a search warrant before instructing medical personnel to draw a blood sample despite the arrested suspect's express refusal to submit to such test. Id. Although the Schmerber ruling was primarily couched in terms of the "search incident to arrest" exception, there were also exigent circumstances present in that any delay caused by having to obtain a warrant would have "threatened the destruction of evidence." Id. at 770, 86 S.Ct. at 1835 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964)). Although Schmerber involved a situation where the defendant had been arrested by police before being required to submit to a blood test, that holding has also been construed as an application of the exigent circumstances exception to the warrant requirement. U.S. v. Berry, 866 F.2d 887, 891 (6th Cir.1989).

"[A]bsent a valid arrest, the minimum constitutional requirements for a warrantless search are probable cause that incriminating evidence will be found and exigent circumstances justifying the search." Berry, 866 F.2d at 891 (citing Chambers v. Maroney, 399 U.S....