STATE OF NEW JERSEY VS. MICHAEL DELMEIER (18-009, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0342-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL DELMEIER,
Defendant-Appellant.
_____________________________
Submitted October 8, 2019 – Decided November 14, 2019
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.18-
009.
Theodore P. Sliwinski, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from an order of the Law Division dated August 24,
2018, which rejected his challenge to an order of the municipal court denying
post-conviction relief (PCR). We affirm.
On July 3, 2008, defendant was riding a motorcycle and collided with a
vehicle that was stopped in traffic in Middletown. When Middletown Police
Officer Antonio Ciccone responded to the scene, defendant was leaning against
his motorcycle and bleeding from a laceration on his forehead. According to
Ciccone, the vehicle's rear windshield was "busted out." There were four
individuals in the car, including a nine-year-old child who was crying and
claimed he was injured. The officer requested an ambulance for the child and
then approached defendant.
Ciccone spoke with defendant and detected a strong odor of alcohol. The
officer said defendant's eyes were droopy, bloodshot, and watery. When the
officer asked defendant if he had consumed any alcohol, he stated, "[N]ot even
close to enough." Defendant slurred his words. Ciccone continued to question
defendant and then reviewed his license, registration, and insurance card.
Defendant refused to answer any additional questions regarding his alcohol
intake. He showed difficulty standing and dropped his cellphone twice while
handing the officer his credentials.
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Ciccone asked defendant to perform field sobriety tests, but defendant
refused to cooperate. He also refused to provide a breath sample. Ciccone
placed defendant in handcuffs and told him he was under arrest for driving while
intoxicated (DWI). Emergency medical personnel arrived on the scene and
tended to the injured child. They then examined defendant. Thereafter,
defendant asked to be taken to a hospital. Ciccone removed the handcuffs and
placed defendant in the back of the ambulance. The officer followed the
ambulance to the hospital.
At the hospital, Ciccone told defendant a hospital employee would be
taking samples of his blood to send for alcohol screening. Again slurring his
words, defendant stated that he would not provide blood without counsel
present. After certain additional difficulties, hospital security guards strapped
defendant's wrists and ankles to the bed. Ciccone stayed with defendant the
entire time defendant was at the hospital.
About ninety minutes later, Sergeant Bryan McKnight of the Middletown
Police Department arrived to assist the hospital staff with the blood draw. At
approximately 1:35 a.m., a nurse assistant told McKnight she would be taking
defendant's blood sample. The officer watched as the nurse assistant drew blood
from defendant's right forearm and place the vials of blood in an evidence box.
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Tests of the blood samples revealed defendant's blood-alcohol content was .20
percent.
The officer issued summonses to defendant charging him with DWI in
violation of N.J.S.A. 39:4-50, and reckless driving in violation of
N.J.S.A. 39:4-96. Defendant's wife arrived and then left the hospital with
defendant. Ciccone returned to police headquarters with the blood samples. He
logged the evidence and placed the blood samples into the station's evidence
refrigerator.
On June 10, 2009, defendant pled guilty to DWI, and the State agreed to
dismiss the reckless driving summons. The municipal court judge then
sentenced defendant as a first offender under N.J.S.A. 39:4-50(a)(3) because his
previous DWI conviction occurred more than twenty years earlier. The judge
suspended defendant's license for seven months and imposed mandatory fines
and penalties. Defendant did not file a direct appeal.
On November 6, 2017, defendant filed a petition for PCR. On February
22, 2018, the municipal court judge denied the petition, finding that defendant
had not presented any evidence to support relaxation of the requirement that a
PCR petition must be filed within five years, or to vacate his conviction.
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On March 7, 2018, defendant appealed to the Law Division seeking de
novo review of the municipal court's judgment. Judge Paul X. Escandon heard
oral argument and placed his decision on the record. The judge found
defendant's petition was barred by Rule 7:10-2(b)(2), and memorialized his
decision in an order dated August 24, 2018. This appeal followed.
On appeal, defendant argues:
POINT ONE
THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF SHOULD HAVE BEEN
GRANTED BY THE TRIAL COURT. MOREOVER,
THERE WERE EXCEPTIONAL CIRCUMSTANCES
THAT JUSTIFY RELAXING THE FIVE-YEAR TIME
LIMIT AS REQUIRED BY RULE 3:22-12.
POINT TWO
THE DEFENDANT'S WARRANTLESS/FORCED
BLOOD DRAW WAS ILLEGALLY OBTAINED
AND IT SHOULD HAVE BEEN EXCLUDED
PURSUANT TO MISSOURI v. McNEELY[, 569 U.S.
141 (2013)].
POINT THREE
THE NEW JERSEY SUPREME COURT HOLDING
OF STATE v. ADKINS[, 221 N.J. 300 (2015),]
MANDATES THAT THE MISSOURI v. McNEELY
HOLDING BE APPLIED RETROACTIVELY.
POINT FOUR
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT RULED THAT THE MISSOURI v.
McNEELY [HOLDING] DID NOT APPLY
RETROACTIVELY.
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POINT FIVE
A REVIEW OF SEARCH AND SEIZURE CASE LAW
MANDATES THAT THE DEFENDANT'S DWI
CONVICTION BE REVERSED.
POINT SIX
THE RECENT CASE OF STATE v. ZUBER[, 227 N.J.
422 (2017),] MANDATES THAT THIS COURT
REVERSE THE TRIAL COURT'S RULING.
POINT SEVEN
A REVIEW OF THE CASE LAW MANDATES THAT
THE MISSOURI v. McNEELY CASE BE APPLIED
RETORACTIVELY TO THE DEFENDANT'S PRIOR
DWI CONVICTION.
POINT EIGHT
A REVIEW OF THE FEDERAL JURISPRUDENCE
MANDATES THAT THE DEFENDANT'S DWI
CONVICTION BE REVERSED.
We have carefully considered defendant's arguments and conclude they
are entirely without merit. We affirm the court's order denying PCR
substantially for the reasons stated by Judge Escandon in his oral decision of
August 24, 2018. We add the following.
Rule 7:10-2(b)(2) governs applications for PCR in the municipal court.
The rule provides that a petition for PCR, based on grounds other than an alleged
illegal sentence, "shall not be accepted for filing more than five years after entry
of the judgment of conviction or imposition of the sentence sought to be
attacked, unless it alleges facts showing that the delay was due to defendant's
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excusable neglect." Ibid. When determining whether "excusable neglect"
exists, a court "should consider the extent and cause of the delay, the prejudice
to the State, and the importance of the petitioner's claim in determining whether
there has been an 'injustice' sufficient to relax the time limits." State v. Norman,
405 N.J. Super. 149, 159 (App. Div. 2009) (citing State v. Afanador, 151 N.J.
41, 52 (1997)).
Here, Judge Escandon correctly found that defendant's petition was barred
by Rule 7:10-2(b)(2). Defendant sought to challenge his conviction in June 2009
of DWI under N.J.S.A. 39:4-50. He did not, however, file his PCR petition until
November 6, 2017, which was beyond the five years required by Rule 7:10-
2(b)(2).
Defendant argued the time-bar should be relaxed so that the court could
find that the warrantless draw of his blood was unlawful under Missouri v.
McNeely, 569 U.S. 141 (2013). The PCR court correctly found that McNeely
did not apply to defendant, and therefore defendant failed to establish "excusable
neglect" for his failure to file a timely petition.
On appeal, defendant argues that the Law Division judge erred by refusing
to relax the time bar in Rule 7:10-2(b)(2). He also argues that McNeely should
be retroactively applied to his case. We disagree.
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The Constitution of the United States and the New Jersey Constitution
guarantee the right to be free from unreasonable searches and seizures. U.S.
Const. amend. IV; N.J. Const. art I, ¶ 7. The compelled intrusion into the body
for the purpose of drawing blood to determine its alcohol content is a se arch
under the Fourth Amendment to the United States Constitution. Schmerber v.
California, 384 U.S. 757, 768 (1966).
"Warrantless searches are 'prohibited unless they fall within a recognized
exception to the warrant requirement.'" State v. Adkins, 221 N.J. 300, 310
(2015) (quoting State v. Pena-Flores, 198 N.J. 6, 18 (2009)). One exception to
the warrant requirement is the presence of exigent circumstances. Ibid. (citing
State v. Johnson, 193 N.J. 528, 552 (2008)). In Schmerber, the Court found that
the warrantless blood draw of the suspect in that case was permissible, noting
that the officer
might reasonably have believed that he was confronted
with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened
the destruction of evidence[.] We are told that the
percentage of alcohol in the blood begins to diminish
shortly after drinking stops, as the body functions to
eliminate it from the system. Particularly in a case
such as this, where time had to be taken to bring the
accused to a hospital and to investigate the scene of the
accident, there was not time to seek out a magistrate
and secure a warrant. Given these special facts, we
conclude that the attempt to secure evidence of blood-
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alcohol content in this case was an appropriate incident
to petitioner's arrest.
[Schmerber, 384 U.S. at 770-71.]
Thereafter, the courts disagreed as to whether in Schmerber the United
States Supreme Court had established that dissipation of alcohol created a per
se exigency justifying a warrantless draw of blood in every case where a driver
is suspected of driving under the influence. Adkins, 221 N.J. at 310-11. The
Supreme Court resolved that split of authority in McNeely. Id. at 311. The
Court held Schmerber did not create a per se rule, and instead applied a totality-
of-the-circumstances test. Ibid. (citing McNeely, 569 U.S. at 150).
The McNeely Court held that in determining whether an exigency exists
that would permit the warrantless taking of blood, the court must consider the
totality of the circumstances. McNeely, 569 U.S. at 145. The McNeely Court
stated that:
while the natural dissipation of alcohol in the blood
may support a finding of exigency in a specific case, as
it did in Schmerber, it does not do so categorically.
Whether a warrantless blood test of a drunk-driving
suspect is reasonable must be determined case by case
based on the totality of the circumstances.
[Id. at 156.]
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In Adkins, our Supreme Court held that McNeely applied retroactively to
cases that were in the "pipeline" on April 17, 2013, when the Court issued its
opinion in McNeely. Adkins, 221 N.J. at 304, 313. The Court explained that
when a new rule of law is announced, it may be applied retroactively to all cases
"pending on direct review or not yet final, with no exception for cases in which
the new rule constitutes a 'clear break' with the past." Id. at 312 (quoting State
v. Wessells, 209 N.J. 395, 412 (2012), and Griffith v. Kentucky, 479 U.S. 314,
328 (1987)).
Here, Judge Escandon correctly found defendant's case was not in the
"pipeline" when McNeely was decided. The record shows that defendant pled
guilty and was sentenced in June 2009. He did not file a direct appeal. The
Court issued its decision in McNeely in April 2013, nearly four years later. The
judge found that McNeely cannot be retroactively applied to defendant's case.
We agree.
Defendant argues that notwithstanding Adkins, we should apply McNeely
in this case. He contends that if there is a "major" change in the criminal law,
it is generally applied retroactively. He asserts that search and seizure law
requires that his conviction be reversed. He further argues that State v. Zuber,
227 N.J. 422 (2017), requires reversal of the Law Division's judgment in this
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matter. He contends other case law supports retroactive application of McNeely
here.
We are convinced that defendant's arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). Notwithstanding
defendant's arguments to the contrary, McNeely does not apply to his
conviction. Adkins, 221 N.J. at 304, 313. His case was not in the "pipeline"
when McNeely was decided. The court correctly found that defendant was not
entitled to PCR.
Affirmed.
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