State Of Louisiana v. Jason M. Michael (Parish of Ascension) We find that the district court did not err in denying defendant’s motion to suppress the Bac evidence and that Birchfield does not require the Bac results to be suppressed in this case. Th

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #024
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of July, 2020 are as follows:
PER CURIAM:
2019-KK-01273 STATE OF LOUISIANA VS. JASON M. MICHAEL (Parish of
Ascension)
We find that the district court did not err in denying defendant’s motion to
suppress the BAC evidence and that Birchfield does not require the BAC
results to be suppressed in this case. The matter is remanded to the district
court for further proceedings consistent with the views expressed herein.
AFFIRMED AND REMANDED.
Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for
Justice Clark.

*Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for Clark, J.
07/09/20
SUPREME COURT OF LOUISIANA
No
. 2019-KK-01273
STA
TE OF LOUISIANA
ve
rsus
J
ASON M. MICHAEL
O
N SUPERVISORY WRIT TO THE TWENTY-THIRD
JUDICIAL DISTRICT COURT, PARISH OF ASCENSION
PE
R CURIAM:*
On June 19, 2016, defendant drove his truck into a smalle r vehicle on
Highway 44 in Ascension Parish and then fled the scene of the accident. He was
found by police a few miles away. His vehicle was heavily damaged, and its debris
was found at the scene of the crash. In addition to defendant, two other people
were injured in the crash: Bree Lavigne and her minor son Lucas. Although the
extent of defendant’s and Ms. Lavigne’s injuries are unclear in the record at this
pretrial stage of the proceedings, Lucas required treatment in the intensive care
unit. Ms. Lavig ne tested negative for alcohol or drugs. Defendant, who had been
Mirandized and arrested, was transported to the hospital by ambulance. At the
hospital, a state trooper obtained defendant’s consent to a blood test after
informing defendant that the crash h ad resulted in serious injury. A blood test
revealed that defendant had a blood alcohol concentration (BAC) of 0.23%.
The State charged defendant with two counts of first degree vehicular
negligent injury, La. R.S. 14:39.2, one count of hit -and-run driving, La. R.S.
14:100, and one count of operating a vehicle wh ile intoxicated, La. R.S. 14:98.
Defendant filed a motion to suppress the BAC results, alleging that the trooper

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misinformed him that under La. R.S. 32:666 he could not refuse the blood test
because serious injury resulted from the crash and that defendant’s consent was
therefore coerced. The district court denied the motion to suppress after holding an
evidentiary hearing on April 8, 2019, and defendant sought supervisory review
from the court of appeal, which the court of appeal denied without reasons. State v.
Michael, 19-0713 (La. App. 1 Cir. 7/10/19) (unpub’d). Defendant thereafter sought
review in this C ourt, and the parties opted to submit the matter on briefs without
oral argument.
Defendant contended in the court of appeal that the BAC blood draw
evidence must be suppressed because he consented only after being threatened
with criminal consequences if he refused, in violation of Birchfield v. North
Dakota, 579 U.S. —, 136 S.Ct. 2160, 195 L.E d.2d 560 (2016). The Birchfield
decision was decided four days after the administration of the blood test in this
case and approximately three years before the suppression hearing, but this was
defendant’s first mention of it. That latter fact alone likely barred consideration of
the argument. See Segura v. Frank , 93-1271, p. 15 (La. 1/14/94), 630 So.2d 714,
725 (“The general rule is that appellate courts will not consider issues raised for
the first time on appeal.”) . However, we need not decide whether the claim was
properly before the court of appeal and is properly before this C ourt now. We also
need not decide the related question of whether Birchfield applies retroactively to a
blood test that preceded the decision by four days. We find that Birchfield, even if
applicable, would not require suppression of the BAC result s under the
circumstances present in this case because exigent circumstances justified the
warrantless BAC blood test.
Defendant argues that the United States Supreme Court held in Birchfield

3

that consent to a blood test is in voluntary and therefore invalid when ever criminal
consequences for the failure to consent are threatened. It did not. We use Birchfield
here as shorthand for a trio of decisions the United States Supreme Court
consolidated to decide “whether motorists lawfully arrested for drunk driving may
be convicted of a crime or otherwise penalized for refusing to take a warrantless
test measuring the alcohol in their bloodstream.” 132 S.Ct. at 1272. The Birchfield
case most similar to the present one addressed whether defendant Steven Michael
Beylund’s consent to a BAC blood test was voluntary . Beylund argued that his
consent was not voluntary because he consented after being threatened with
criminal consequences and, accordingly, the evidence in his administrative license
suspension proceeding must be suppressed.
The Birchfield majority found that a warrantless BAC breath test is
constitutional incident to arrest because such a test does not “implicate significant
privacy concerns.” Id. at 2178. As such, the Court found that laws criminalizing
failure to consent to a warrantless BAC breath test incident to arrest are
constitutional. As to warrantless BAC blood tests incident to arrest, however, the
Birchfield majority concluded that such tests are “significantly more intrusive”
than BAC breath tests. Id. at 2178. Blood draws require a piercing of the skin and,
among other things, “place[] in the hands of law enforcement authorities a sample
that can be preserved and from which it is possible to extract information beyond a
simple BAC reading.” Id. Thus, the Court found that laws criminalizing failure to
consent to a warrantless BAC blood draw incident to arrest are unconstitutional.
Accordingly, with respect to Beylund, who had subm itted to a BAC blood
test after he was warned he could be criminally prosecuted for refusing, the
question was whether his consent could be considered voluntary where it occurred

4

after he was threatened with an unconstitutional prosecution. Because the
voluntariness of consent i s a factual question that turned on the totality of the
circumstances, the Court remanded Beylund’s case to determine whether the blood
draw was voluntary.
Defendant here recognizes that his situation is most similar to that of
Beylund but fails to acknowledge that Birchfield did not create a per se rule that
the threat of criminal prosecution renders consent invalid in every instance .
Instead, as evidenced by the Court’s decision to remand Beylund’s case, the nature
of the consent i nvolves questions of fact. Defendant also fails to recognize a
significant difference between the circumstances here and those in Beylund’s case
that is dispositive notwithstanding his Birchfield arguments. Beylund’s conduct did
not result in serious injur y to anyone,1 while the State alleges that this defendant’s
conduct seriously injured two people. Without that difference, at best, defendant
could only hope under Birchfield that the totality of the circumstances would show
that his consent was not voluntary. With that difference, however , and in
consideration of all of the facts of this case, there is no justification for suppressing
the evidence here because the general principle that exigent circumstances can
justify a warrantless search survived Birchf ield, and exigent circumstances are
present in this instance.
The United States Supreme Court clarified Birchfield in Mitchell v.
Wisconsin, 588 U.S. —, 139 S.Ct. 2525, 204 L.Ed.2d. 1040 (2019), and addressed
how exigent circumstances, which notably were absent from all three of the

1 Beylund was approached by a police officer who observed Beylund’s vehicle nearly hitting a
stop sign and parking partially in a public road. The officer obse rved that Beylund had an empty
wine glass in his center cons ole, smelled of alcohol, and struggled to maintain his balance once
he exited the vehicle.

5

Birchfield scenarios, change the calculus. Although Mitchell addressed the
exigency created by an unconscious driver, which is not particularly relevant to the
present case based on facts known, the Court importantly held that the decreased
time necessary to obtain a search warrant in a technologically advanced era does
not preclude warrantless blood -draws from unconscious drunk-driving suspects. 2
Additionally, Mitchell’s summary of the overall framework of the Court’s BAC-
related jurisprudence and analysis is instructive:
Though our precedent normally requires a warrant for a lawful search,
there are well-defined exceptions to this rule. In Birchfield, we applied
precedent on the “search-incident-to-arrest” exception to BAC testing
of conscious drunk-driving suspects. We held that their drunk-driving
arrests, taken alone, justify warrantless breath tests but not blood tests,
since breath tests are less intrusive, just as informative, and (in the
case of conscious suspects) readily available. Id., ___ U.S. at ___, 136
S.Ct. at 2184–85.

We have also reviewed BAC tests under the “exigent circumstances”
exception—which, as noted, allows warrantless searches “to prevent
the imminent destruction of evidence.” Missouri v. McNeely, 569 U.S.
141, 149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). In McNeely, we
were asked if this exception covers BAC testing of drunk -driving
suspects in light of the fact that blood-alcohol evidence is always
dissipating due to “natural metabolic processes.” Id., 569 U.S. at 152,
133 S.Ct. 1552. We answered that the fleeting quality of BAC
evidence alone is not enough. Id., 569 U.S. at 156, 133 S.Ct. 1552.
But in [Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16
L.Ed.2d 908 (1966) ] it did justify a blood test of a drunk driver who
had gotten into a car accident that gave police other pressing duties,
for then the “ further delay” caused by a warrant application really
“would have threatene d the destruction of evidence.” McNeely , 569
U.S. at 152, 133 S.Ct. 1552 (emphasis added).

Like Schmerber, this case sits much higher than McNeely on the
exigency spectrum. McNeely was about the minimum degree of

2 In Mitchell, the defendant lost consciousness while being transported to the police station and
was taken to the hospital instead. Given his state, Mitchell could not refuse the blood test after an
officer read him the applicable statement of Wisconsin law regarding refusal, and an officer
instructed medical personnel to draw his blood. Approximately 90 minutes after his arrest,
Mitchell’s blood test BAC was 0.222. The Mitchell majority ultimately held that the exigent
circumstances exception to the Fourth Amendment’s warrant requirement “almost always”
permits BAC blood tests without a warrant where the suspected drunk driver is unconscious and
cannot be given a breath test.

6

urgency common to all drunk- driving cases. In Schmerber, a car
accident heightened that urgency. And here Mi tchell’s medical
condition did just the same.

Mitchell, 139 S.Ct. at 2532–34 (emphasis in original) (citations edited for style).
The Mitchell majority then explained how the exigency exception fits within
the overall framework and generally applies to unconscious drunk-driving suspects
like Mitchell. Id. at 2534–35. Having found a “compelling need” for such tests, the
majority turned to consider whether such need justifies warrantless searches under
the exigency exception. Again referencing Schmerber v. California, 384 U.S. 757,
765, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Mitchell majority determined:
We held that there was no time to secure a warrant before a blood tes t
of a drunk- driving suspect in Schmerber because the officer there
could “reasonably have believed that he was confronted with an
emergency, in which the delay necessary to obtain a warrant, under
the circumstances, threatened the des truction of evidence.” 384 U.S.
at 770, 86 S.Ct. 1826 (internal quotation marks omitted). So even if
the constant dissipation of BAC evidence alone does not create an
exigency, see McNeely, 569 U.S. at 150 –151, 133 S.Ct. 552,
Schmerber shows that it does so when combined with other pressing
needs:

We are told that [1] 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 [2] time had to be taken to bring the accused
to a hospital and to investigate the scene of the accident, ther e
was no time to seek out a magistrate and secure a warrant.
Given these special facts, we conclude that the attempt to
secure evidence of blood-alcohol content in this case [without a
warrant] was ... appropriate ....

384 U.S. at 770–771, 86 S.Ct. 1826.

Thus, exigency exists when (1) BAC evidence is dissipating and (2)
some other factor creates pressing health, safety, or law enforcement
needs that would take priority over a warrant application. Both
conditions are met when a drunk-dri ving suspect is u nconscious, so
Schmerber controls: With such suspects, too, a warrantless blood
draw is lawful.

7

In Schmerber, the extra factor giving rise to urgent needs that would
only add to the delay caused by a warrant application was a car
accident; here it is the driver’s unconsciousness.

Mitchell, 139 S.Ct. at 2537 –38 (footnotes omitted ) (citations edited for
style). The majority went on to recognize the “grim dilemma” often faced by
officers seeking to prioritize rival issues to the detriment of critical safety
and health needs and the preservation of dissipating evidence and observed
that such situations are precisely the kind of scenarios justifying the exigent
circumstances exception. See id. The Court concluded:
When police have probable cause to believe a person has committed a
drunk-driving offense and the driver’ s unconsciousness or stupor
requires him to be taken to the hospital or similar facility before police
have a reasonable opportunity to administer a standard evidentiary
breath test, they may almost always order a warrantless blood test to
measure the driver’s BAC without offending the Fourth Amendment.
We do not rule out the possibility that in an unusual case a defendant
would be able to show that his blood would not have been drawn if
police had not been seeking BAC information, and that police could
not have reasonably judged that a warrant application would interfere
with other pressing needs or duties. Because Mitchell did not have a
chance to attempt to make that showing, a remand for that pur pose is
necessary.

Id., 139 S.Ct. at 2539.
While facts in the record do not indicate that defendant was unconscious or
in an intoxicated stupor like Mitchell, serious injury is alleged to have resulted to
two persons as a result of his intoxicated driving. As in Schmerber, the extra factor
that gave rise to urgent needs was a car accident . There, as here , time had to be
spent to bring the accused to a hospital and to investigate the scene of the accident,
and the trooper could “reasonably have believed t hat he was confront ed with an
emergency.” Schmerber, 384 U.S. at 770, 86 S.Ct. 1826. Defendant also fled the
scene of the crash, with the extensive damage to his truck, which was smoking and
leaking fluid, thus creating two separate scenes that police had to investigate. Thus,

8

according to facts presented at the hearing on defendant’s motion to suppress,
exigent circumstances set this case apart from the uncomplicated drunk -driving
scenarios addressed in Birchfield, and Schmerber, rather than Birchfield,
determines the outcome.
Neither the application of Birchfield or Schmerber was considered by the
district court when it denied defendant’s motion to suppress, however, because
defendant did not make these arguments in the district court. In denying
defendant’s motion to suppress, the district court rejected defendant’s claim that
his consent was obtained through misinformation, deceit, or coercion. T he ruling
of a district court on a motion to suppress will not be disturbed absent an abuse of
discretion. State v. Long, 03-2592, p. 5 (La. 9/9/04), 884 So.2d 1176, 1179–80. The
district court made its determination after hearing testimony from the trooper and
defendant about the information provided by the trooper and the circumstances
under which defendant consented to the blood test. While defendant focuses in this
Court not on those issues but rather on Birchfield, he neglects to argue why
Schmerber is not applicable in this case . Defendant has failed to show any reason
here to justify disturbing the district court’s ruling.
Accordingly, we find that the district court did not err in denying
defendant’s motion to suppress the BAC evidence and that Birchfield does not
require the BAC results to be suppressed in this case . The matter is remanded to
the district court for further proceedings consistent with the views expressed
herein.
AFFIRMED AND REMANDED