Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
COATS, Chief Judge.
Jimmie Dale drove his truck off the road and down a 100-foot embankment, causing serious physical injury to the two passengers in his car. Dale was charged with driving under the influence, driving while his license was suspended, two counts of first-degree assault  against the two passengers, two counts of third-degree assault  against the same passengers, and failing to remain on the scene and render aid after a motor vehicle accident. Dale moved to suppress the results of a blood test from a blood sample that the police required him to provide at the hospital after the accident. Dale argued that because his blood was taken without his consent and without a search warrant, it was taken in violation of his right to be free from unreasonable searches and seizures under the United States and Alaska Constitutions.
Superior Court Judge Eric Smith denied Dale's motion to suppress. Although Judge Smith concluded that there was enough time for the investigating trooper to call a magistrate and obtain a warrant, he held that exigent circumstances exist as a matter of law when an officer has sufficient probable cause under AS 28.35.031(g) and State v. Blank  to search for intoxicants in a person's body. We affirm Judge Smith's decision that exigent circumstances existed as a matter of law.
Factual and procedural background
On October 4, 2005, at approximately 10:45 p.m., Dale drove off the road and down a 100-foot embankment in Palmer. There were two women in the truck with Dale-Lori Osborn and Leah Bradford. Alaska State Trooper Gregory Pealatere and Sergeant Troy Shuey responded to the scene. By the time they arrived, emergency medical personnel were already at the scene. They told Trooper Pealatere that the women in the car had been seriously injured and had stated that Jimmie Dale was the driver of the car and had left on foot. Sergeant Shuey found Dale a short distance away. Dale was swaying as he talked to Sergeant Shuey, his speech was slurred, and he had bloodshot, watery eyes. Sergeant Shuey could smell alcohol on Dale and was " certain that [Dale] had been drinking alcohol at some point during the evening." Dale was taken to the hospital with Osborn and Bradford.
Trooper Pealatere and Sergeant Shuey investigated and documented the scene of the accident. After investigating the scene of the accident, Trooper Pealatere proceeded to the hospital, where he interviewed Bradford at about 1:04 a.m. The trooper estimated that the interview with Bradford lasted about five to ten minutes. At some point in the next half hour, Trooper Pealatere spoke with Sergeant Shuey, and they determined that Dale was intoxicated and was the driver of a vehicle that had been involved in an accident that caused serious physical injury to the passengers, and that they had probable cause to arrest him at that time. Sergeant Shuey instructed Trooper Pealatere to get a blood sample from Dale, by force if necessary. Sergeant Shuey told Trooper Pealatere that
a warrant was not necessary because AS 28.35.031(g), the implied-consent statute, authorized the blood draw, so Trooper Pealatere did not attempt to obtain a warrant Before instructing the hospital staff to take a blood sample from Dale. The blood sample was taken around 2:00 a.m. The results indicated that Dale had a blood-alcohol level between .07 and .08 when he was tested.
Before trial, Dale moved to suppress the evidence of the blood test, contending that it was taken in violation of his constitutional right to be free from unreasonable searches and seizures. After an evidentiary hearing at which Trooper Pealatere testified, Judge Smith issued an order denying Dale's motion to suppress. Judge Smith found that Trooper Pealatere had enough time to call a magistrate, that he probably could have obtained a search warrant by telephone in about twenty to thirty minutes, and that, had he done so, Dale's blood probably would have been drawn at about the same time. However, Judge Smith found that exigent circumstances existed as a matter of law and the police accordingly did not have to obtain a warrant Before having Dale's blood drawn. He therefore denied Dale's motion to suppress the results of the blood test.
A jury convicted Dale of all of the charges. Dale appeals Judge Smith's denial of his motion to suppress. He asks this court to reverse all of his convictions except his conviction for driving while his license was suspended.
Legal background of the question whether exigent circumstances exist as a matter of law in ...