State v. Rodriguez

2007 UT 15
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040566
Plaintiff and Petitioner,
v.
F I L E D
Heather Jo Rodriguez,
Defendant and Respondent. 	January 30, 2007
---
Third District, Salt Lake
The Honorable Dennis M. Fuchs
No. 011907005
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Matthew D. Bates,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Shannon N. Romero, Lori Seppi, Salt Lake City, for
defendant
Janice L. Frost, Salt Lake City, for amici
Utah Peace officers’ Ass’n, Utah Sheriff’s Ass’n,
Dep’t of Public Safety, Statewide Ass’n of
Prosecutors
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	After a fatal traffic accident claimed the life of her
passenger, Heather Jo Rodriguez was charged with automobile
homicide. 	The district court denied Ms. Rodriguez’s motion to
suppress blood-alcohol evidence obtained in a warrantless search
following the accident; the court of appeals later reversed. 	We
granted certiorari to answer the narrow question of whether
dissipation of alcohol in the blood, without more, created an
exigent circumstance under the Fourth Amendment justifying the
warrantless extraction of a blood sample from Ms. Rodriguez.
¶2 	Because we found that it does not, we asked the parties
to provide additional briefing on the question of whether the
court of appeals correctly held that the totality of the
circumstances surrounding Ms. Rodriguez’s blood draw failed to

No. 20040566 	2
create an exigency sufficient to justify a warrantless search.
Having now considered both questions, we decline the invitation
to assign presumptive exigent status to warrantless blood draws,
but we hold that the totality of the circumstances in this case
justified the extraction of blood from Ms. Rodriguez without a
warrant and therefore reverse the judgment of the court of
appeals.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 	Heather Jo Rodriguez was driving south on Main Street
in Salt Lake City with a passenger, Terry Stewart, on May 9,
2001. 	Between 4:45 and 4:50 p.m., Ms. Rodriguez made an abrupt
left turn into the path of an oncoming school bus. 	The bus
broadsided Ms. Rodriguez’s car, critically injuring both
Ms. Rodriguez and Ms. Stewart. 	Paramedics arrived on the scene
and transported the critically injured Ms. Rodriguez to LDS
Hospital. 	Ms. Stewart sustained severe head injuries and was
considered by paramedics to be near death. 	She had to be
extricated from the mangled car and transported to University of
Utah Medical Center.
¶4 	When Salt Lake City police officers arrived to
investigate the accident, paramedics were in the process of
transporting the women to their respective hospitals. 	A
paramedic told officers that the two women smelled of alcohol.
Police officers located Ms. Stewart’s purse at the scene. 	It
contained an opened, partially-empty bottle of vodka. 	A
supervising officer then arrived and was informed of the
circumstances surrounding the accident. 	He immediately contacted
police dispatch with instructions to send an officer to obtain a
blood sample from Ms. Rodriguez that could be tested for alcohol
content.
¶5 	Dispatch directed an officer to the hospital to
“witness a blood draw” from the driver. 	The officer first
mistakenly went to the University of Utah Medical Center where he
was informed that Ms. Stewart, not Ms. Rodriguez, was being
treated.
¶6 	The officer then drove to LDS Hospital where he located
Ms. Rodriguez in the emergency room awaiting a CT scan. 	He
detected evidence of inebriation, including the odor of alcohol
on her breath, slurred speech, red eyes, and uncooperative and
belligerent behavior.
¶7 	The officer waited between twenty and twenty-five
minutes in the CT room for a technician to arrive and draw

3 	No. 20040566
Ms. Rodriguez’s blood. 	The blood was taken from an IV line that
the hospital staff had previously inserted into Ms. Rodriguez’s
arm for medical purposes. 	Later testing revealed that
Ms. Rodriguez had a blood-alcohol level of .39, nearly five times
the legal limit.
¶8 	The passenger, Ms. Stewart, died as a result of her
injuries. 	Ms. Rodriguez recovered and was arrested and charged
with automobile homicide. 	Ms. Rodriguez moved to suppress the
evidence obtained from the warrantless blood draw. 	The district
court denied her motion. 	Ms. Rodriguez then pled guilty to the
automobile homicide charge, reserving the right to appeal the
district court’s denial of her motion to suppress the blood
evidence.
¶9 	Before the Utah Court of Appeals, Ms. Rodriguez argued
that the district court erred because the State (1) did not
demonstrate that the officer had probable cause to believe she
had committed an alcohol-related offense and (2) had failed to
show that the warrantless blood draw was justified by exigent
circumstances. 	The court of appeals found that exigent
circumstances were not present sufficient to justify a
warrantless blood draw and reversed the district court. 	Because
it decided the case on the absence of exigent circumstances, the
court of appeals did not reach the issue of probable cause.
¶10 	In support of its holding, the court of appeals noted
that “exigent circumstances will be found, where the situation
involves blood-alcohol evidence, only when the totality of the
circumstances supports a finding that the officer was confronted
with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened the destruction of
evidence.” 	State v. Rodriguez, 2004 UT App 198, ¶ 14, 93 P.3d
854 (citation and quotation marks omitted). 	The court of appeals
conceded that because the human body metabolizes alcohol, its
presence in the bloodstream is transitory. 	The court concluded,
however, that the evanescent nature of blood-alcohol evidence is
not sufficient, standing alone, to create an exigent circumstance
justifying a warrantless intrusion into the body to take blood.
Id.
¶11 	Having declined to assign per se exigent status to
blood-alcohol tests, the court of appeals looked for the presence
of other circumstances which in their totality justified the
seizure of Ms. Rodriguez’s blood without a warrant. 	Looking to
its own precedents, the court considered

No. 20040566 	4
“the distance to the nearest magistrate, the
availability of a telephonic warrant, the
feasibility of a stake-out or other form of
surveillance while a warrant is being
obtained, the seriousness of the underlying
alcohol-related offense, the commission of
another offense such as fleeing the scene,
the ongoing and continuing nature of an
investigation, the extent of probable cause,
and the conduct of the investigating
officers.”
Id. ¶ 16 (quoting City of Orem v. Henrie, 868 P.2d 1384, 1392
(Utah Ct. App. 1994)).
¶12 	The court observed that it was “clear from the record
that the decision to extract Rodriguez’s blood was made soon
after the accident occurred, at a time when courts are open and
search warrants can be readily requested either in person or by
telephone.” 	Id. ¶ 19 (citation and quotation marks omitted). 	In
other words, the State did not consider the feasibility of
obtaining an expedited search warrant. 	The court of appeals
found that the State presented no evidence that “anyone, at any
time, had assessed the difficulty and time required to obtain a
proper search warrant.” 	Id.
¶13 	Drawing largely on the fact that the very concept of a
warrant had apparently not entered the consciousness of the
police officers conducting the accident investigation, coupled
with the fact that the police developed probable cause to believe
that Ms. Rodriguez had been consuming alcohol at a time when the
courts were open and a search warrant could have easily been
requested personally or by telephone, the court of appeals held
that the State failed to meet its burden of proving exigency.
Id. ¶ 20.
¶14 	In our certiorari review of the court of appeals’
decision, we will first explore whether our courts may be freed
from assessing the “totality of the circumstances” when faced
with a Fourth Amendment challenge to a warrantless blood draw
because the presence of alcohol, without more, establishes
sufficient justification for the search. 	We will next turn to
whether, in the absence of a presumptive exigency,
Ms. Rodriguez’s blood draw was nevertheless justified under the
totality of the circumstances. 	We conduct both questions ceding
no deference to the court of appeals. 	The first is a pure
question of law. 	We review anew the second question because it
concerns the proper application of constitutional guarantees

1 Article I, section 14 of the Utah Constitution likewise
guarantees the citizens of our state freedom from unreasonable
searches and seizures. 	We have, however, not been invited to
take up the question presented under the Utah Constitution. 	We
therefore once again postpone an analysis of the substantive
differences, if any, between the respective search and seizure
provisions of the United States and Utah Constitutions.
5 	No. 20040566
against unreasonable searches and seizures. 	State v. Brake, 2004
UT 95, ¶ 15, 103 P.3d 699.
ANALYSIS
I. 	EXIGENT CIRCUMSTANCE
¶15 	The Fourth Amendment to the United States Constitution
ensures “[t]he right of the people to be secure in their persons
. . . against unreasonable searches and seizures.” 	U.S. Const.
amend. IV. 	Reasonableness is the key to any Fourth Amendment
analysis. 	See Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977). 1 	The protection afforded by the Fourth Amendment is
intended to assure each individual that as a nation we prize
personal dignity and privacy and will not countenance arbitrary
intrusions on those valued interests. 	The Fourth Amendment
mandates a warrant based on probable cause and reviewed by an
impartial magistrate as the operational safeguard against
arbitrary police intrusions. 	A search or seizure conducted
without the aid of a warrant is per se unreasonable. 	See, e.g.,
United States v. Place, 462 U.S. 696, 701 (1983) (“In the
ordinary case, the Court has viewed a seizure of personal
property as per se unreasonable within the meaning of the Fourth
Amendment unless it is accomplished pursuant to a judicial
warrant issued upon probable cause and particularly describing
the items to be seized.”).
¶16 	A reasonable warrantless search can occur only when the
legitimate state interest served by the intrusion outweighs
individual interests shielded by the Fourth Amendment. 	Delaware
v. Prouse, 440 U.S. 648, 654 (1979). 	One class of exceptions to
the warrant requirement is exigent circumstances. 	The words
“exigent circumstances” suggest the nature of the legitimate
state interest to which the exception refers: 	there must be an
urgency to acquire evidence that falls outside the ordinary
course of law enforcement. 	For instance, the completion of tasks
associated with obtaining a warrant may place the safety of the
police officers or the public at unacceptable risk or result in
the destruction of essential evidence necessary to prosecute a
crime. 	See, e.g., Camara v. Mun. Ct. of San Francisco, 387 U.S.

No. 20040566 	6
523, 534 (1967) (safety of the public); State v. Lorocco, 794
P.2d 460, 470-71 (Utah 1990) (safety of police and risk of loss
of evidence); State v. Limb, 581 P.2d 142, 144 (Utah 1978) (risk
of loss of evidence).
¶17 	The United States Supreme Court has assigned
presumptive exigent circumstances status to certain classes of
limited intrusions. 	For example, in recognition of the safety
risks confronting a police officer who makes a traffic stop, the
Supreme Court has authorized officers, without a warrant, to run
a background check of a driver and passengers and, in addition,
to order a driver and passengers out of the vehicle. 	See, e.g.,
Maryland v. Wilson, 519 U.S. 408, 410 (1997) (noting that
officers may order a passenger out of the vehicle); United States
v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (noting that
officers may run a background check of vehicle occupants for
their own safety).
¶18 	The State contends that there is a recognized general
exigency of evidence destruction which applies to warrantless
blood draws. 	Had the United States Supreme Court held that the
Fourth Amendment permits police to conduct a warrantless blood
draw whenever evidence of alcohol is present, the task before us
would be easy. 	However, the fact that it has not so held places
us in the position of following a course that is part divination
and part pragmatism.
¶19 	We engage in divination when, employing what we might
ambitiously call a principled approach to prophecy, we attempt to
predict how the United States Supreme Court might decide the
question before us. 	This is a perilous activity. 	As we will see
when we take up the clearest pronouncement of the Supreme Court
on the issue of alcohol and warrants, the Supreme Court could
have created forty years ago the very categorical exigent
circumstance rule for alcohol that the State now seeks. 	But it
did not. 	We are not easily convinced that the Supreme Court has
changed its mind on this question and merely awaits the
appearance of the case that will permit it to make its intentions
known to all.
¶20 	Any discussion of exigency and blood-alcohol evidence
takes place on terrain covered by the long shadow cast by
Schmerber v. California, 384 U.S. 757 (1966). 	Several of
Schmerber’s most important facts are replayed in the events here.
Mr. Schmerber and his friend had been drinking at a tavern. 	The
two individuals left the tavern in an automobile driven by
Mr. Schmerber. 	The auto crossed the road, skidded, and struck a
tree. 	Both Mr. Schmerber and his passenger were injured and

7 	No. 20040566
taken to a hospital for treatment. 	Believing alcohol contributed
to the accident, a police officer arrested Mr. Schmerber and
directed a physician to draw a sample of his blood. 	The officer
did not obtain a warrant. 	Id. at 758 n.2.
¶21 	Presented with these facts, the Court first concluded
that warrantless searches involving intrusions into the human
body implicate the Fourth Amendment. 	Id. at 767-68. 	The Court
then found in such cases that “the Fourth Amendment’s proper
function is to constrain, not against all intrusions as such, but
against intrusions which are not justified in the circumstances,
or which are made in an improper manner.” 	Id. at 768. 	The Court
thus rejected the notion that bodily intrusions undertaken to
obtain evidence were categorically unreasonable under the Fourth
Amendment and concluded that the state could penetrate a person’s
body to obtain evidence under certain circumstances. 	The
challenge lay in identifying what those circumstances were.
¶22 	The Court was satisfied that the police officer had
probable cause to arrest Mr. Schmerber, but also noted that the
probable cause sufficient to effect an arrest was not the same
probable cause necessary to conduct a search of a person’s body.
This is because probable cause to conduct a search involves a
concept foreign to the probable cause required to justify an
arrest: 	the expectation of privacy.
¶23 	The concept of “expectation of privacy” features
prominently in the vocabulary of the Fourth Amendment. 	It
functions as a tool to gauge the reasonableness of a search. 	The
Schmerber Court acknowledged that the interest that poses the
most substantial countervailing force to a community’s interest
in effective law enforcement is the dignity and integrity of the
human body. 	Justice Brennan later explained Schmerber in these
terms: 	“[t]he intrusion perhaps implicated Schmerber’s most
personal and deep-rooted expectations of privacy, and the Court
recognized that Fourth Amendment analysis thus required a
discerning inquiry into the facts and circumstances to determine
whether the intrusion was justifiable.” 	Winston v. Lee, 470 U.S.
753, 760 (1985).
¶24 	The heightened expectation of privacy associated with
the human body meant that probable cause to conduct a body search
had to be grounded on something more than mere suspicion.
Rather, sufficient probable cause was present only where there
was a “clear indication that . . . evidence will be found.” 	Id.
at 762 (citation and quotation marks omitted).

No. 20040566 	8
¶25 	The significance assigned to the elevated expectation
of privacy for one’s body not only led the Court to impose a more
rigorous standard for probable cause, but also prompted the Court
to emphasize the importance of acquiring a warrant in advance of
conducting a bodily intrusion. 	As the Court stated in Schmerber
and reiterated in Winston:
“Search warrants are ordinarily required for
searches of dwellings, and, absent an
emergency, no less could be required where
intrusions into the human body are concerned.
. . . 	The importance of informed, detached
and deliberate determinations of the issue
whether or not to invade another’s body in
search of evidence of guilt is indisputable
and great.”
Winston, 470 U.S. at 761 (quoting Schmerber, 384 U.S. at 770).
¶26 	The State holds the view that the reverse is true. 	The
State argues that drawing blood is a significantly lesser
intrusion into a person’s privacy than an intrusion into a home,
automobile, or non-invasive body search. 	This assertion
misunderstands the privacy inquiry. 	Invasive body searches
implicate the most “personal and deep-rooted” expectations of
privacy, a privacy which is not present in searches of homes,
automobiles, or clothing. 	Id. at 760.
¶27 	That a blood draw is a minor matter in the realm of
invasive procedures and one that is commonly performed does not
alter the fact that it is an invasion of the human body and
subject to a heightened expectation of privacy. 	Id. at 762 (“The
blood test procedure has become routine in our everyday life.”).
Justice Marshall explained this point in his dissent in Skinner
v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 644 (1989).
There, Justice Marshall reminds the Court that Schmerber does not
teach that blood draws do not infringe significant privacy
interests merely because they have become commonplace. 	The
commonness, comfort, and safety of Mr. Schmerber’s blood draw
became relevant “only after [the Court] established that the
blood test fell within the ‘exigent circumstances’ exception to
the warrant requirement, and established that the test was
supported by probable cause.” 	Skinner, 489 U.S. at 645 n.7
(emphasis in original).
¶28 	We are careful to note that, although Mr. Schmerber was
under arrest at the time his blood was drawn and the Court
characterized the blood draw as “an appropriate incident to

2 The Court apparently did not intend to ascribe legal
significance to its “incident to arrest” labeling of the
Schmerber blood draw. 	In Winston v. Lee, the Court noted that
Schmerber “fell within the exigent circumstances exception to the
warrant requirement.” 	470 U.S. at 759. 	The Court’s use of the
“search incident to arrest” justification for the warrantless
search in Schmerber has spawned considerable debate over whether
an actual arrest must precede a warrantless blood draw or whether
a showing of probable cause for arrest will suffice. 	See State
v. Blank, 90 P.3d 156, 161, 163 n.41 (Ala. 2004) (listing
jurisdictions that have adopted categorical exigent circumstances
rule). 	Here, the State has advanced the sole argument that the
blood draw was justified under the exigent circumstance
rationale.
9 	No. 20040566
[defendant’s] arrest,” the Court took pains to note that “the
mere fact of a lawful arrest does not end our inquiry.”
Schmerber, 384 U.S. at 769, 771. 2 	The Schmerber Court
understandably concluded that searches directed at safeguarding
arresting officers “have little applicability with respect to
searches involving intrusions beyond the body’s surface.” 	Id. at
769.
¶29 	The Court then turned its attention to the absence of a
warrant. 	It concluded that the officers acted lawfully when they
obtained the defendant’s blood without a warrant because
blood-alcohol content begins to drop shortly after drinking ends,
time had been taken to transport the defendant to a hospital and
to investigate the accident scene, and the necessity to seek out
a magistrate and secure a warrant would require even more time.
Id. at 770-71.
¶30 	Contrary to the assertion of the State, Schmerber does
not stand for the proposition that the loss of evidence of a
person’s blood-alcohol level through the dissipation of alcohol
from the body was a sufficient exigency to justify a warrantless
blood draw. 	Rather, these three categories of “special facts”
combined to create the exigency. 	The evanescence of
blood-alcohol was never special enough to create an exigent
circumstance by itself.
¶31 	The guarded language employed by Justice Brennan to
define the Court’s holding in Schmerber reinforces our conclusion
that the Court did not intend a categorical recognition of
blood-alcohol exigency. 	Justice Brennan stated “[t]hat we today
hold that the Constitution does not forbid the States’ minor
intrusions into an individual’s body under stringently limited
conditions in no way indicates that it permits more substantial

No. 20040566 	10
intrusions, or intrusions under other conditions.” 	Id. at 772.
We can uncover no endorsement of a per se rule in this statement
of the Schmerber holding.
¶32 	The Court confronted a more substantial intrusion in
Winston, 470 U.S. 753. 	There, the Commonwealth of Virginia
sought to compel a robbery suspect to undergo surgery to remove a
bullet lodged in his chest. 	The Court held that such surgery
would be an unreasonable search under the Fourth Amendment both
because extracting the bullet would intrude substantially on the
suspect’s privacy and security interests and because the state
had failed to demonstrate a compelling need for the bullet. 	The
Court noted that in cases of intrusions below the skin, Schmerber
required that several considerations be accounted for before the
interests of an individual would yield to the state’s interest in
prosecuting a crime: 	(1) officials must have probable cause for
the search, (2) the procedure used must be reasonable, and
(3) there must be minimal intrusion upon the person’s personal
privacy and bodily integrity. 	Winston, 470 U.S. at 761-62.
¶33 	It is true that the Winston Court emphasized
Schmerber’s characterization of blood tests as minimally
intrusive, in contrast to the surgical removal of the bullet from
Mr. Winston. 	Id. 	The Court also reaffirmed the reasonableness
of blood draws, holding that a state’s interest in proving
alcohol impairment to enforce its drunk driving laws “was
sufficient to justify the intrusion, and the compelled blood test
was thus ‘reasonable’ for Fourth Amendment purposes.” 	Id. at
763.
¶34 	However, Winston involved a unique factual situation.
The Court’s holding demonstrates its continued adherence to the
core elements of Schmerber. 	Id. at 761-62. 	Winston did not, and
because no blood draw was involved could not, announce that
warrantless blood draws to measure alcohol content were per se
justified under the exigent circumstances doctrine.
¶35 	Although the State takes pains to provide a roster of
lower federal and state courts that have found that the temporary
presence of alcohol in the blood creates sufficient urgency to
justify a warrantless blood-alcohol test, in none of these cases
was exigency established by the presence of alcohol alone.
Rather, either exigency was not at issue or the court pointed to
delays in the warrant acquisition process as circumstances that
would suffice to create an exigency.
¶36 	Two of the cases cited by the State come close to
ceding alcohol per se exigency status: 	State v. Cocio, 709 P.2d

3 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,
623 (1989), does not establish, as the Wisconsin court asserts,
that exigent circumstances are present whenever public safety is
furthered through procurement of a blood sample. 	Skinner
approved federal regulations mandating warrantless blood and
urine tests of railroad employees following rail accidents. 	The
decision was not based, however, on principles applicable to the
investigation of crimes.
The Court emphasized that the usual warrant
and individualized suspicion rules in
criminal cases were inapplicable to the
administrative testing of railroad employees
because the testing of railroad employees was
not mandated to assist in the prosecution of
employees but rather to prevent accidents and
casualties in railroad operations that result
from impairment of employees by alcohol or
drugs.
State v. Bohling, 494 N.W.2d 399, 408 n.9 (Wis. 1993)
(Abrahamson, J., dissenting) (quotation marks omitted).
11 	No. 20040566
1336 (Ariz. 1985), and State v. Bohling, 494 N.W.2d 399 (Wis.
1993). 	We read Cocio, however, as allowing the police to obtain,
without a warrant, a portion of blood that has already been drawn
from the body for other valid medical reasons. 	The intrusion was
not, then, a governmental act. 	For its part, Bohling allowed a
warrantless blood draw solely for the purpose of determining
blood-alcohol incident to arrest--a state of affairs which we are
not faced with today. 	Bohling also rested its conclusion that
alcohol has obtained per se exigency status on several points
with which we cannot agree. 	These include what we consider to be
a flawed reading of Schmerber, 384 U.S. 757, and a misapplication
of Skinner--a point highlighted by the Bohling dissent. 3
Furthermore, we find ourselves in agreement with the three
justices of the Bohling dissent who concluded, “The legislative
intent behind the telephonic warrant procedure is to encourage
use of warrants and minimize resort to warrantless searches when
circumstances might otherwise be exigent.” 	Bohling, 494 N.W.2d
at 408 n.7 (citing United States v. Talkington, 843 F.2d 1041,
1046-47 (7th Cir. 1988) (citing 1977 Amendment to Federal Rule
41, advisory committee notes).
¶37 	We are wary of embracing holdings from other state
courts that have applied the Fourth Amendment to warrantless
blood-alcohol tests for a more fundamental reason. 	The premise
that fuels the State’s claim to per se exigency status for
blood-alcohol tests is that owing to the evanescent quality of
blood-alcohol evidence, the delays that accompany the acquisition

No. 20040566 	12
of a warrant threaten to place useful evidence beyond the reach
of law enforcement. 	The State assumes, without evidence or
authority, that the attempt to obtain a warrant where
blood-alcohol evidence is sought will always be accompanied by
unacceptable delay. 	But what if a warrant can be obtained
expeditiously? 	We believe that there is substantial reason to
believe this is possible.
¶38 	The rules for obtaining a warrant include a minimum of
universally applicable standards: 	the warrant must be “upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.” 	The Fourth Amendment leaves to others
the details of how to go about obtaining a warrant. 	The
astonishing advances that have marked communications and
information technology over recent decades have dramatically
pared back the physical obstacles to warrant acquisition.
¶39 	Court rules and legislative enactments sometimes keep
pace with this technology. 	Sometimes they do not. 	Prior to
1980, a peace officer or prosecuting attorney would be required
to obtain the physical presence of a magistrate so that she might
examine the complainant, take written depositions (affidavits),
and sign the warrant. 	Utah Code Ann. § 77-54-4 (1978). 	This
would obviously take an unacceptable amount of time in many
cases. 	In State v. Jasso, 439 P.2d 844 (Utah 1968), we
suppressed evidence where an Ogden police officer personally
applied to a judge for a search warrant at his residence late at
night. 	The judge was of the opinion that the written affidavit
supplied by the officer was insufficient to issue a warrant. 	The
judge then swore the officer as a witness and questioned him
until obtaining sufficient grounds to issue a warrant based upon
this oral deposition. 	Nonetheless, we held that the evidence
later obtained should have been suppressed because the statute in
effect at the time, Utah Code Ann. § 77-54-4 (1978), did not
allow the issuance of a warrant from an oral deposition.
Clearly, significantly more time was involved in obtaining a
warrant at that time than today.
¶40 	Over the past twenty-five years, all branches of Utah’s
government have participated in overseeing an evolution of the
warrant acquisition process. 	Under current rules, police can
readily obtain a warrant, in most circumstances, in a very short
amount of time. 	As far back as 1980, Utah Code section 77-7-10
allowed a magistrate to issue a warrant by “telegraph, telephone
or other reasonable means.” 	Likewise, section 77-23-204 allowed
a magistrate to consider sworn oral testimony via telephone or
other reasonable means in lieu of an affidavit and allowed the

13 	No. 20040566
magistrate to direct the requesting officer to affix the
magistrate’s name to the warrant in lieu of signature.
¶41 	More recently, in 2005, the legislature revised section
77-23-204 to further streamline the process. 	The statute now
simply states, “A remotely communicated search warrant issued
under Rule 40 of the Rules of Criminal Procedure shall be served
in a written form upon the person or place to be served.” 	The
new statute allows us to maintain pace with technological
developments which might speed and ease the warrant process by
adjustments to rule 40 of the Utah Rules of Criminal
Procedure--which rule controls the issuance of remote warrants.
Currently rule 40 allows that “[a]ll communication between the
magistrate and the peace officer or prosecuting attorney
requesting the warrant may be remotely transmitted by voice,
image, text, or any combination of those, or by other means.”
Utah. R. Civ. P. 40.
¶42 	We whole-heartedly endorse the comments of the advisory
committee, which state that the rule is intended to be
interpreted liberally in order to facilitate remote
communications as a means of applying for and issuing search
warrants while preserving the integrity of the probable cause
application and the terms of warrants that are authorized. 	We
are confident that, were law enforcement officials to take
advantage of available technology to apply for warrants, the
significance of delay in the exigency analysis would markedly
diminish.
¶43 	Case law in this area is of little help. 	It is
virtually impossible to extract from blood-alcohol related Fourth
Amendment cases a meaningful understanding of the standard
against which the court is measuring delay. 	Were telephonic
warrants available? 	We are seldom told. 	Yet, we know that the
delay associated with telephonic warrants need not be great. 	See
United States v. Baker, 520 F. Supp. 1080, 1083 (D. Iowa 1981)
(finding that one hour and fifteen minutes was “abundant time” to
obtain warrant by telephone, a process that often takes no more
than thirty minutes). 	We also know that “the Mesa Police
Department is able to obtain a warrant within as little as
fifteen minutes and that delays of only fifteen to forty-five
minutes are commonplace.” 	State v. Flannigan, 978 P.2d 127, 131
(Ariz. Ct. App. 1998). 	The record in this case does not disclose
how much time would likely have been required for the officers to
secure a warrant to extract Ms. Rodriguez’s blood. 	We are
confident, however, that courts and law enforcement officials in
Utah, particularly in our urban regions, would have the
wherewithal to duplicate the warrant acquisition standards of

No. 20040566 	14
Mesa, Arizona. 	We agree with the sentiment of that case: 	“The
mere possibility of delay does not give rise to an exigency.”
Id.
¶44 	Was a magistrate readily available to review the
warrant application? 	If not, why not? 	In Schmerber, the most
definitive commentary by the United States Supreme Court on the
subject of warrants, exigent circumstances, and blood-alcohol
tests, the Court tells us that the police officer was required to
appear before a magistrate and implies that magistrates were not
particularly easy to locate. 	384 U.S. 757. 	In 1966, the
Justices of the Supreme Court could not reasonably have foreseen
the ubiquity of the cell phone, and only those conversant with
the futuristic imaginings of science fiction would have been
capable of describing the gadgetry that equips the interior of
the typical police cruiser today.
¶45 	Nor could the Court in 1966 have foreseen the evolution
of law enforcement sophistication and professionalism that has
occurred over the past forty years. 	The United States Supreme
Court recently took note of this important development when it
ended the application of the exclusionary rule as a sanction for
violations of a police officer’s obligation to knock and announce
his presence before entering a dwelling to execute a warrant.
Hudson v. Michigan, 126 S. Ct. 2159 (U.S. 2006). 	Writing for a
majority of the Court, Justice Scalia observed:
Another development over the past half-
century that deters civil-rights violations
is the increasing professionalism of police
forces. . . . 	Numerous sources are now
available to teach officers and their
supervisors what is required of them under
this Court’s cases, how to respect
constitutional guarantees in various
situations, and how to craft an effective
regime for internal discipline.
Id. at 2168.
¶46 	Were we to adopt a rule of per se exigency for
alcohol-related blood seizures, we would remove much of the
incentive to pursue progressive approaches to warrant acquisition
that preserve the protections afforded by the warrant while
meeting the legitimate interests of law enforcement. 	Today, Utah
Rule of Criminal Procedure 40 exploits communications and
information technology in the cause of making warrants more
readily obtainable without compromising the core constitutional

15 	No. 20040566
considerations of authenticity and impartiality. 	In most cases,
a police officer has readily at hand several methods of applying
for a search warrant from the scene of an accident, a medical
facility, or any other location where probable cause has been
established.
¶47 	The State takes issue with the court of appeals’
disapproving reaction to the fact that the officer who authorized
the warrantless seizure of Ms. Rodriguez’s blood never considered
obtaining a warrant. 	The State appears to hold the view that a
per se exigency rule is necessary in part because the typical
police officer could not be expected to successfully complete an
evaluation of the array of considerations that together comprise
the “totality” of circumstances upon which a judgment about a
warrant is made.
¶48 	The court of appeals noted that the officer viewed the
blood draw merely as a routine matter in the aftermath of an
alcohol-related accident. 	The State is on target when it notes
that the officer’s subjective belief is not relevant to an
assessment of the reasonableness of his actions and also misses
the point of the court’s reference to the officer’s absence of
warrant awareness. 	It is clear to us that the court was
disturbed by what the record suggests to be an instance of
institutional disregard of a fundamental constitutional safeguard
of individual rights: 	the warrant.
¶49 	A police officer who has not even considered the
potential need for a warrant will not, of course, be required to
possess any skill or sensitivity in identifying and evaluating
the state of the actual exigencies that confront him. 	Amici
curiae suggest that it might be too much to ask a police officer
to investigate every alcohol-related incident with the
presumption that a blood draw must be supported by a warrant.
Amici contend there is simply too much for a police officer to do
and to think about to realistically expect the officer to take on
the added burden of evaluating the availability of a warrant.
This court, like the court of appeals, is confident that the law
enforcement officers of this state are suitably equipped with the
talent, training, and experience to permit them to exercise sound
judgment when they conclude that an investigation would benefit
from the acquisition of blood-alcohol evidence.
¶50 	Finally, we believe that destruction of evidence
brought on by the involuntary metabolic processes of the human
body presents a less compelling case for exigency than do more
traditional and volitional methods of evidence destruction.
There exists considerable scientific literature on the subject of

No. 20040566 	16
whether reliable conclusions about blood-alcohol concentrations
at a prior time may be extrapolated from a test performed on
blood drawn later. 	The State and amici cite numerous articles
that question the reliability and utility of retrograde analysis
of blood-alcohol evidence. 	Ms. Rodriguez counters with her own
substantial bibliography. 	Who has the better science is not the
question here. 	The fact that there has been serious scientific
inquiry attempting to develop reliable methods to calculate past
blood-alcohol concentrations is what is important. 	The same
could not be said for more commonplace forms of evidence
destruction, the use of toilets being the most prominent among
them. 	We are unwilling to render ongoing scientific research
into blood-alcohol dissipation rates irrelevant by bestowing
categorical exigency status on seizures of blood.
II. 	THE TOTALITY OF THE CIRCUMSTANCES JUSTIFIED THE WARRANTLESS
DRAW OF MS. RODRIGUEZ’S BLOOD
¶51 	Whether exigent circumstances are present to justify a
warrantless intrusion depends on “all of the circumstances
surrounding the search or seizure and the nature of the search or
seizure itself.” 	United States v. Montoya De Hernandez, 473 U.S.
531, 537 (1985). 	Applying the exigency assessment guideposts set
out in City of Orem v. Henrie, 868 P.2d 1384, 1388 (Utah Ct. App.
1994), the court of appeals held that the blood draw failed the
totality of the circumstances test. 	Our own review of the facts
surrounding the blood draw compels us to the opposite conclusion
reached by the court of appeals. 	This outcome is the result of
balancing the state’s interest in collecting evidence against the
defendant’s interests in privacy and bodily integrity.
¶52 	The court of appeals concluded that the totality of the
circumstances fell short of meeting the State’s obligation to
show exigent circumstances which justified its warrantless blood
draw. 	It did credit the district court for taking into account
the inherent dissipation of alcohol in the blood, the seriousness
of the accident, and the clear presence of probable cause to
believe that alcohol contributed to the accident.
¶53 	Nevertheless, the court of appeals found the district
court’s failure to account for the question of time, the
proximity of the magistrate, the alternatives explored and
discarded by the officers, the delay the officers faced, the
impact of the delay in obtaining viable evidence, and the point
of time in the accident investigation when the decision was made
to extract Ms. Rodriguez’s blood was fatal to the trial court’s
totality of the circumstances analysis. 	State v. Rodriguez, 2004
UT App 198, ¶ 17, 93 P.3d 854. 	In sum, the court of appeals

17 	No. 20040566
appeared to focus its attention on the fact that the officers
never considered applying for a warrant, much less exploring or
discarding alternative courses of action.
¶54 	We do not disregard this roster of relevant
considerations compiled by the court of appeals. 	Each has its
place in contributing to a clear understanding of what a
reasonable officer would have apprehended at the time
Ms. Rodriguez’s blood draw occurred. 	See, e.g., Ohio v.
Robinette, 519 U.S. 33, 39 (1996). 	We are dismayed by the
officers’ failure to consider the notion that the extraction of
blood from a person’s body might constitute a search requiring a
warrant. 	In light of the confidence expressed earlier in this
opinion in the evolving professionalism of the law enforcement
officials who participated in Ms. Rodriguez’s blood draw, we
consider the major constitutional blind spot that this incident
exposed disturbing.
¶55 	We do not, however, agree with the court of appeals
that the officers’ belief that warrantless blood extractions were
routine dooms the State’s quest for exigency. 	Although we are
concerned that the officers did not consider the warrant
requirement, the subjective assessment about the need for a
warrant is largely irrelevant to our totality of the
circumstances analysis. 	It is an objective analysis in which the
thought processes of any particular officer plays no role.
¶56 	We also have misgivings about the certainty with which
the court of appeals concluded that the decision to extract
Ms. Rodriguez’s blood was made at a time “when courts are open
and search warrants can be readily requested.” 	Rodriguez, 2004
UT App 198, ¶ 19. 	It is not clear to us that this assertion can
be credibly derived from the agreed-upon fact that the accident
occurred between 4:45 and 4:50 p.m. on a Wednesday.
¶57 	Although we know that no one considered requesting a
warrant before drawing Ms. Rodriguez’s blood, the record reveals
much about what the officers understood regarding the accident
and Ms. Rodriguez’s condition from the time the collision
occurred until the time Ms. Rodriguez’s blood was drawn. 	One
fact dominates all others with respect to its relevance to
whether the warrantless blood draw was reasonable: 	that
Ms. Stewart was expected to succumb to her injuries. 	This fact
significantly altered the warrant acquisition calculus that a
reasonable law enforcement officer who has probable cause to
believe an alcohol-related offense has occurred could be expected
to apply. 	The severity of the possible alcohol-related offense

No. 20040566 	18
bears directly on the presence or absence of an exigency
sufficient to justify a blood draw without a warrant.
¶58 	In this sense, warrantless blood draws are never
“routine.” 	Without the presence of other compelling
circumstances, a law enforcement official who stopped a
pedestrian suspected of public intoxication would not face an
exigency sufficient to justify a warrantless blood draw. 	In such
cases, the state has a negligible interest in acquiring the
quality of alcohol evidence provided by a blood test
uncompromised by considerations of dissipation during the warrant
application process. 	Where an alcohol-related offense is minor,
a warrantless blood draw, however modest it may be in the
spectrum of bodily intrusions, will trespass on important
constitutional rights.
¶59 	Even where, as here, the alcohol-related offense is
very serious, a warrantless blood draw cannot be “routine.”
Here, the evidence supporting the conclusion that probable cause
existed to believe that Ms. Rodriguez was intoxicated at the time
of the accident was overwhelming. 	Not only was a vodka bottle
found at the scene, but the officer noted her slurred speech,
bloodshot eyes, and odor of alcohol when he encountered
Ms. Rodriguez at the hospital. 	The likelihood that the blood
draw would detect alcohol was great. 	We agree with the district
court that the seriousness of the accident coupled with the
compelling evidence of Ms. Rodriguez’s alcohol impairment is
sufficient to establish that the interests of law enforcement
outweighed, in this instance, Ms. Rodriguez’s privacy interests.
¶60 	In making what we believe to be the “discerning
inquiry” into the justifications for the intrusion mandated by
Justice Brennan in Winston v. Lee, 470 U.S. 753, 760 (1985), we
have not cast aside the Henrie factors that the court of appeals
applied to reach a result contrary to ours. 	As our rejection of
the State’s quest for per se exigency makes clear, practical
considerations associated with warrant acquisition remain central
to inquiries into whether exigent circumstances justify a
warrantless search. 	As technology reduces the amount of time
necessary to obtain a warrant, we would expect a corresponding
increase in the use of warrants.
¶61 	Our result today is the product of our judgment that in
this case the facts relating to the Henrie factors were
subordinate to considerations of the severity of the accident and
attendant offense and the obvious presence of Ms. Rodriguez’s
alcohol impairment as a contributing cause of Ms. Stewart’s
death.

19 	No. 20040566
CONCLUSION
¶62 	In light of the foregoing, it is difficult for us to
imagine that the United States Supreme Court could muster the
assurance that the consequences of alcohol dissipation are so
great and the prospects for prompt warrant acquisition so remote
that per se exigent circumstance status be awarded to seizures of
blood for the purpose of gathering blood-alcohol evidence.
Accordingly, we decline to grant per se exigent circumstance
status to warrantless seizures of blood evidence. 	However, it is
our opinion that the State did meet its obligation in this case
to show that under the totality of the circumstances, both
probable cause and exigent circumstances justified its
warrantless blood draw.
---
¶63 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.