Appeals Court Returns Malmgren’s Case for Blood Test Legality

TRENTON – Joshua D. Malmgren, 35, serving an 18-year sentence in state prison for aggravated manslaughter in the killing of two teenaged girls in Green Creek July 31, 2012, when he struck them with his vehicle, has appealed the fact that blood was drawn without a warrant shortly after the accident. 
In a Dec. 15 Appellate Court decision, Malmgren’s case was sent back to a trial court for further determination whether there was a pressing need to draw his blood without a warrant. According to the court, Malmgren’s blood level was .183, over twice the legal limit of .08.
Malmgren, of Wildwood, was sentenced Dec. 5, 2014, after he admitted killing Ashley Dauber, 13, and Nioami Lazicki, 15. Malmgren acknowledged running over the two on Bayshore Road near the Green Creek firehouse while operating his motor vehicle under the influence of alcohol and prescription medication.
Malmgren admitted operating his vehicle while having a blood-alcohol content twice the legal limit. Additionally, Malmgren stated that he had also combined the alcohol with the prescription drugs Tramadol and Clonazepam, as well as being engaged in the act of texting while driving.
According to the appeal, “Prior to pleading guilty, defendant moved to suppress the results of his blood alcohol test. This issue was preserved on appeal pursuant to Rule 3:5-7(d). Because the issue was decided prior to our Supreme Court’s decision in State v. Adkins, we now remand (return) for further review to determine whether sufficient exigency existed to draw defendant’s blood absent a warrant.”
Superior Court Judge John Porto ruled April 29, 2014, that Middle Township police acted appropriately when they took Malmgren to Cape Regional Medical Center and had his blood drawn without seeking a search warrant.
After Malmgren’s motion to suppress was heard, the New Jersey Supreme Court made a decision, which applied the U.S. Supreme Court decision in Missouri v. McNeely “retroactively to all cases in the pipeline. This is one such case,” the decision stated.
That case “determined that before blood can be constitutionally drawn from a suspect in a drunk-driving investigation, a warrant must be obtained, unless an exigency existed under the totality of the circumstances.”
Malmgren also raised the issue of his excessive sentence, 85 percent of which must be served before parole eligibility. According to Department of Corrections information, Malmgren’s maximum parole eligibility date is June 26, 2029.
The Appellate Court did not address Malmgren’s excessive sentence argument, which, the court stated, he “may raise if relevant on appeal after remand.”
The Appellate Court, which heard the appeal Nov. 15, recounted the actions of the Middle Township police officer at the scene of the accident:
“Middle Township Police Officer Brian Murphy was the only witness for the state at the motion to suppress. He responded shortly after 9 p.m. to the scene of the accident. He saw emergency and police vehicles as well as a large crowd forming.
“The scene was “very chaotic.” He spoke to defendant, who was seated under a large tree, hugging his knees and crying. Defendant’s eyes were watery and bloodshot, and he smelled of alcohol.
“Defendant was unable to perform a field his right hand, ankles, and femur. His right hand was broken: he told the police he punched his car after the accident.
“Officer Murphy transported defendant to the Cape Regional Medical Center to attend to his injuries and obtain “a legal blood kit.”
“At the hospital, defendant signed a form that did not inform him he had the right to refuse consent to the blood draw. The blood test revealed a blood alcohol content of .183, more than twice the legal limit. The laboratory report revealed the presence of Clonazepam and Tramadol, prescription medications that defendant later admitted he was warned not to use with alcohol.
“The motion judge accurately characterizing the law in New Jersey at that time as “permit[ting] the police to obtain a blood sample without first obtaining a warrant so long as they had probable cause to believe that the driver was intoxicated,” denied defendant’s motion to suppress the blood report. The judge also opined that the “testimony did not provide this court with a sufficient basis to determine whether an exigency occurred.”