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Court: Police Had Right to Draw Malmgren’s Blood after Fatal Crash

Joshua Malmgren

By Bill Barlow

TRENTON – Officers were within their rights to draw blood from Joshua Malmgren without a warrant after a horrific crash, in 2012, which left two teen girls dead.
An appeals court ruling July 21 upheld a Superior Court ruling from April 2018. Malmgren’s attorneys sought to disqualify the evidence from the blood test, which found he was far above the legal limit to operate a vehicle.
Malmgren is serving 18 years in prison. At his sentencing, he described himself as a monster and expressed regret to the families, according to news reports.
Ashley Dauber, 13, of Philadelphia, her cousin, Nioami Lazicki-Gaston, 15, who lived in Middle Township, and Lazicki-Gaston’s sister, Farrahanne Gaston, were walking along Bayshore Road, near the Green Creek firehouse, at about 9:15 p.m., when Malmgren’s SUV left the road. Gaston narrowly escaped injury. Dauber and Lazicki-Gaston were killed.
Malmgren, of Wildwood, was sentenced after a plea agreement. His attorneys have since sought to disqualify the blood test as evidence and argued the sentence was excessive. It was the maximum permitted under the plea agreement.
“We affirm substantially for the reasons placed on the record by the trial court. We also determine defendant’s sentence was not excessive,” reads the recent decision from Appellate Court Judges Ellen Koblitz and Robert Gilson.
Typically, officers require a warrant to have blood drawn and tested for alcohol in an intoxicated driving investigation, but exceptions are made for emergencies.
In the relatively brief decision, the judges cited the grisly scene of the crash, based on the testimony of two officers the court found credible.
“… Every working officer from the small police department in Middle Township responded to the scene,” the ruling reads. “The scene was described as ‘very chaotic,’ with the victims lying along the roadway, substantial debris stretched along the highway, family members of the two young victims, who had rushed to the scene.”
Police were working to preserve evidence.
“An officer found defendant by the side of the road and observed that he smelled of alcohol and had bloodshot eyes,” the decision reads. He failed roadside sobriety tests and had a hurt right fist, reportedly broken where he punched the side of his vehicle after the crash.
Blood was taken at the hospital at 10:30 p.m., more than an hour after the crash. The analysis found Malmgren’s blood alcohol concentration was .183%, well above the legal limit of 0.08% to drive. He also  took prescription drugs for anxiety and pain, and admitted he was using his cell phone at the time.
“The officers testified that, in their experience, it would have taken hours to obtain a telephonic or written warrant, and by that time the alcohol in the defendant’s system would have dissipated,” reads the court’s decision.
The judges found that under these circumstances, the officers were permitted to have blood drawn without a warrant.
The defense also alleged that the sentence did not take into account mitigating factors: That he was a first-time offender, and that jailing him would be a hardship to his family because he has a seriously disabled young son.
According to the appeals court, a sentence under a plea agreement is presumed to be reasonable because the defendant voluntarily waived his right to trial for a dismissal of some charges or a reduction in sentencing.
“Defendant took the lives of two young girls and could have received 40 years in prison for first-degree crimes. While the sentence was undoubtedly severe, especially for a first offender, it does not shock the judicial conscience,” reads the decision.
To contact Bill Barlow, email bbarlow@cmcherald.com.

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