SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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- 15T3

STATE OF NEW JERSEY ,

Plaintiff

- Respondent ,

v.

DAWN M. MILKOSKY ,

Defendant

- Appellant ,

___________________________________

Submitted May 23 , 2017

– Decided

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New Jersey , Law Division , Morris County , Municipal Appeal No. 15

- 049

.

Michael A. Grasso , attorney for appellant (Christopher J. Grenda , on the briefs).

Fredric M. Knapp , Morris County Prosecutor , attorney fo r respondent (Paula Jordao , Assistant Prosecutor , on the brief).

PER CURIAM

Following the denial of defendant Dawn M. Milkosky ' s motion

to suppress the results of a blood alcohol test , she entered a

conditional plea of guilty to driving while intoxicated (DWI) ,

N.J.S.A. 39:4

- 50 , in the Kinnelon Municipal Court. See R. 7:5

- NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not " constitute precedent or be binding upon any court

. "

A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited

. R .1:36

- 3.

June 8, 20172 A

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2(c)(2) ; State v. Greeley , 178 N.J. 38 , 50

- 51 (2003). She appealed ,

and the Law Division , after conducting a de novo hearing , entered

an order denying her suppression motion. Defendant appeals the

court ' s order. We affirm.

I.

The evidence presented at the suppression hear ing showed that

at about 6:15 p.m. on April 16 , 2015 , defendant was involved in a

single vehicle accident. De fendant ' s vehicle was overturned and

there was a small fire in the front of the vehicle. Defendant was

unconscious and , secured by her seatbelt , she hung upside down in

the driver ' s seat. Kinnelon police officers , who were dispatched

to the scene , pulled d efendant from the vehicle just prior to it

being engulfed in flames.

Defendant remained unconscious and had a faint pulse. The

officers administered first aid and detected an odor of alcohol

coming from defendant. Within fifteen to twenty minutes of the

a ccident , defendant was transported by helicopter to Morristown

Memorial Hospital.

The road where the accident occurred was closed for several

hours. T he local fire department and members of the sheriff ' s

department also responded.

Kinnelon police detective Patrick McDonnell was on duty. H e

was assigned to block

- off the road where the accident occurred and3 A

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direct traffic. At some point , McDonnell was dispatched to the

hospital to obtain a sample of defendant ' s blood.

McDonnell testified at the supp ression hearing that d efendant

was conscious whe n he met with her at the hospital. McDonnell

introduced himself as a detective with the Kinnelon police

department. He asked defendant for her name , date of birth , social

security number , and address , and she provided the information.

Defendant did not remember how the crash occurred or how she had

arrived at the hospital. She inquired about her vehicle , and

McDonnell said it was most likely destroyed by fire.

McDonnell testified that d efendant explained that at the time

of the accident , she was driving to a friend ' s house. She asked

McDonnell to notify her friend about the accident , and provided

McDonnell with her friend ' s name , address , and phone number. The

information defendant provided was accurate ; at some point ,

McDonnell called and spoke to the friend.

During McDonnell ' s conversation with defendant , he again

informed her that he was a Kinnelon police detective. He asked if

she would consent to provide a blood sample , and informed her she

had the option of saying yes or no. In response , defendant said

" yes " and lifted up her arm toward McDonnell

. He provided defendant

with a consent form , which she signed with a " squiggly line " above

the signature line.4 A

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According to McDonnell , d efendant ' s blood wa s drawn at 8:30

p.m. McDonnell did not believe he had time to obtain a warrant

because the police had " very little manpower and it would take too

long

. " He testified he would have had to call the prosecutor ' s

office to obtain a warrant

. H e did not attemp t to obtain a warrant

because , he " had [defendant ' s] consent and

. . . time had passed

and it would have taken a very lo ng time to get the warrant [based

on his] past experiences. "

Dr. Gooberman , an internist , testified that defendant

sustained a head injury , and had short

- term memory loss

. He

testified defendant was given fluids upon her arrival at the

hospital , but was not given any " mood altering drugs

. " 1

Defendant was charged with driving while intoxicate d ,

N.J.S.A. 39:4

- 50 , and other motor vehicle offenses. She filed a

motion to suppress the results of the blood test , claiming the

warrantless blood draw violated her right to be free from

unreasonable searches and seizures under the United States and New

J ersey C onstitutions. The municipal judge denied defendant ' s

1 Gooberman also testified short

- term memory loss " impacts the ability to give [] consent. " However , he did not provide any support for his conclusion , and the court ruled Gooberman was qualified to testify only as a general medical doctor , and could

not testify whether defendant " was of sound mind while rendering
her consent. " The judge ' s ruling is not challenged on appeal and ,
as such , we do not addres s it.5 A

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motion to suppress . D efendant entered a conditional plea of guilty

to driving while intoxicated , and the remaining charges were

dismissed.

Defendant appealed to the Law Division. The court found

defendant consented to the blood draw , and the warrantless blood

draw was otherwise constitutional under the exigent circumstance s

exception to the warrant requirement. The Law Division entered an

order denying defendant ' s suppression motion. This appeal

followed.

On appeal , defendant makes the following arguments:

POINT I

THE WARRANTLESS BLOOD DRAW WAS NOT OBTAINED

THROUGH CONSENT AND THE STATE CANNOT OVERCOME THE WARRANT REQUIREMENT THROUGH EXIGENCY []

.

POINT II

EXCLUSION OF [DEFENDANT ' S] BLOOD TEST RESULTS IS REQUIRED BECAUSE THE BLOOD DRAW WAS NOT

DONE WITHIN A REASONABLE TIME OF HER OPERATION OF THE MOTOR VEHICLE (Raised Below , However , Not Addressed in Lower Rulings)

.

II.

In our review of the Law Division ' s decision on a municipal

appeal , " [w]e review the action of the Law Division , not the

municipal court. " State v. Robertson , 438 N.J. Super. 47 , 64 (App.

Div. 2014) , certif. granted , 221 N.J. 287 (2015). " Unlike the Law

Division , which conducts a trial de novo on the record , Rule 3:32

-6 A

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8(a) , we do not independently assess the evidence. " State v.

Gibson , 429 N.J. Super. 456 , 463 (App. Div. 2013) , rev ' d on other

grounds , 219 N.J. 227 (2014). We consider " whether the findings

made could reasonably have been reached on sufficient credible

evidenc e present in the record. " State v. Stas , 212 N.J. 37 , 49

(2012) (quoting State v. Locurto , 157 N.J. 463 , 471 (1999)).

However , we owe " no such deference

. . . to the Law Division or

the municipal court with respect to legal determinations or

conclusions re ached on the basis of the facts. " Ibid

. ; see also

State v. Handy , 206 N.J. 39 , 45 (2011) ( " appellate review of legal

determinations is plenary " ).

Defendant contends the court erred because there was

insufficient evidence supporting its determination she consented

to the blood draw. Defendant argues the " indisputable facts

indicate that [she] was suffering from a lack of lucidity that

prevented her f rom having the ability to legally provide consent. "

We disagree.

The United States and New Jersey Constitutions guarantee

" [ t ] he right of the people to be secure in their persons , houses ,

papers , and effects against unreasonable searches and seizures. "

U.S . Const. amend. IV ; N.J. Const. art. I , ¶ 7

. " As the United

States Supreme Court has recognized , ' a " compelled intrusio[n]

into the body for blood to be analyzed for alcohol content " must7 A

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be deemed a Fourth Amendment search. '" State v. Adkins , 221 N.J.

300 , 309 (2015) (quoting Skinner v. Ry. Labor Execs. Ass ' n , 489

U.S. 602 , 616 , 109 S. Ct. 1402 , 1412 , 103 L. Ed. 2d 639 , 659

(1989)).

" Any warrantless search is prima facie invalid , and the

invalidity may be overcome only if the search falls within one of

the specific exceptions created by the United States Supreme

Court. " State v. Hill , 115 N.J. 169 , 173 (1989). The State has the

burden of proving the existence of an exception by a preponderance

of the evidence. State v. Amelio , 197 N.J. 207 , 211 (2008) , cert.

denied , 556 U.S. 1237 , 129 S. Ct. 2402 , 173 L. Ed. 2d 1297 (2009).

" Federal and New Jersey c ourts recognize the consent to search

exception to the warrant requirement. " State v. Lamb , 218 N.J.

300 , 315 (2014). " It is , of course , fundamental that consent to

search must be voluntary. " State v. Chapman , 332 N.J. Super. 452 ,

466 (App. Div. 2000). " To determine whether a person voluntarily

consented to a search , the focus of the analysis is ' whether a

person has knowingly waived [the ] right to refuse to consent to

the search. '" Lamb , supra , 218 N.J. at 315 (quoting State v.

Domicz , 188 N.J. 285 , 308 (2 006)). I n addition , " under the New

Jersey Constitution , a consent to search is valid only if the

person giving consent has knowledge of [the] right to refuse. "

Chapman , supra , 332 N.J. Super. at 466. " The State has the burden8 A

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of proving consent was given f reely and voluntarily. " Lamb , supra ,

218 N.J. at 315.

Here , defendant contends the evidence requires the concl usion

that , due to injuries sustained in the accident , she was incapable

of providing voluntary consent to the requested blood draw. We

find no support in the record for defendant ' s contention and are

satisfied the record amply supports the court ' s determination that

defendant voluntarily and knowingly consen ted to the blood draw.

She spoke coherently with the officer , correctly provided detailed

and accurate information , explained what she had been doing prior

to the accident , and expressed concern about her vehicle. She

responded affirmatively to McDonnell ' s request for the blood draw ,

signed the consent form , and extended her arm towards the officer.

See Birchfield v. North Dakota , __ U.S.

__ , 136 S. Ct. 2160 , 2185 ,

195 L. Ed. 2d 560 , 588 (2016) ( " It is well established that a

search is reasonable when the subject consents

. . . and that

sometimes consent to a search need not be express but may be fairly

inferred from context. " ) (citations omitted).

Moreover , there was no evidence demonstrating that any injury

sustained by defendant actually interfered wi th her ability to

understand her rights , or knowingly and voluntarily waive them.

Gooberman testified defendant sustained a moderate sized left

super orbital subcutaneous hema toma , but offered no opinion that9 A

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the injury affected defendant ' s ability to provide consent.

Gooberman tes tified plaintiff suffered short

- term memory loss that

" impact[ed]

. . . th e ability to give

. . . consent. " He did not ,

however , testify the injury rendered her unable to provide knowing

and voluntary consent to McDonnell ' s b lood draw request.

We therefore discern no basis in the record to reverse the

court ' s finding that , despite defendant suffering some injury in

the accident , she knowingly and voluntarily consented to the blood

draw. See State v. Warmbrun , 277 N.J. Super. 51 , 64 (App. Div.

1994) (finding the defendant voluntarily waived his Miranda 2 rights

where " although defendant was very intoxicated , he was capable of

communicating and

. . . was responsive in answering questions and

could answer correctly questions such as his name , age , etc. " ) ,

certif. denied , 140 N.J. 277 (1995). 3

Defendant also argues the court erred by denying the

suppression motion because the blood draw did not take place within

a reasonable time. We find insufficient merit in the argument to

2 Miranda v. Arizona , 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966).

3 Bec ause we are convinced the court correctly determined that defendant knowingly and voluntarily consented to the blood draw , it is unnecessary to consider defendant ' s argument the court erred by finding the blood draw was lawful under the exigent circumstances exception to the warrant requirement.10 A

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warrant discussion in a written opinion , R. 2:11

- 3(e)(2) , other

to note the following.

Defendant relies on State v. Tischio , 107 N.J. 504 , 506

(1987) , app. dism. , 484 U.S. 1038 , 108 S. Ct. 768 , 98 L. Ed. 2d

855 (1988) , where the Court determined that a de fendant may be

convicted of driving while intoxicated under N.J.S.A. 39:4

- 50 when

a chemical breath test " is administered within a reasonable time

after the defendant was actually driving [the] vehicle " shows a

blood alcohol level exceeding the statutory l imit. 4 See also State

v. Marquez , 202 N.J. 485 , 511 (2010) ( " [B]ecause breath sample

evidence ' is evanescent and may disappear in a few hours ,' police

must administer the breathalyzer test within a reasonable time

after the arrest in orde r to obtain an accurate reading " ) (quoting

State v. W idmaier , 157 N.J. 475 , 487 (1999)).

In State v. Dannemiller , 229 N.J. Super. 187 , 190 (App. Div.

1988) , we observed that the Tischio Court ' s concern about the

" invasion of [a defendant ' s] rights by prolonged detention " was

the " primary reason for requiring the administration of [alcohol

breath] tests within a reasonable ti me of operation or arrest as

4 The majority opinion in Tischio also concluded that alcohol breath tests administered during an investigation in a drivi ng while intoxicated case " must be taken ' within a reasonable time '
after the arrest. " Tischio , supra , 107 N.J. at 521. Defendant was not under arrest at the time of the blood draw at issue here.11 A

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no scientific basis for the requirement has been demonstrated. "

We determined that in assessing whether there was unreas onable

delay , " [e]ach case must . . . be examined . . . to determine

whether the motorist ' s rights have been violated by undue delay. "

Ibid.

In Dannemiller , we further determined the court properly

rejected the defendant ' s claim there was a violation of Tischio ' s

" unreasonable time principle " because he failed to show " prejudice

or reason to doubt the accuracy of the " chemical breath tests , and

failed to make any " claim of prolonged detention or of any

intervening imbibing of an alcoholic beverage , illness , or

untoward event which might affect his condition

. " Ibid. For the

same reason , we reject defendant ' s claim here. Defendant was

promptly removed from the accident scene and taken to the hospital

for medical reasons , was never detained by police p rior to the

blood draw , and there is no evidence that , during the two hour and

fifteen minutes that elapsed from the occurrence of the accident

to the blood draw , there was an intervening incident that might

have affected defendant ' s condition. Defendant d oes not claim she

suffered any prejudice as a result of the purported delay and

there is no evidence showing the delay affected the accuracy of

the blood tests.12 A

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Moreover , given the nature of the accident , the need to

transport defendant to a medical facil ity and all of the attendant

circumstances , the two

- hour

- and

- fifteen

- minute delay in obtaining

the blood draw was not unreasonable. See State v. Samarel , 231 N.J.

Super. 134 , 142

- 43 (App. Div. 1989) (finding defendant failed to

show there was an unreasonab le delay in administering chemical

breath tests where they were administered almost three

- and

- a

- half

hours after a motor vehicle accident).

Affirmed.