SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS
PLAINTIFF Case No SX 2019 CR 00200
v 20 V l C § 504
I4 V I C §924(2)
l4 V l C §625(a)
20 V l C §493(a)(l) and (b)(l)
20 V I C §493(a)(2) and (b)(l)
ELROY JOSEPH 20 V I C §492
20 V l C §494(2)
DEFENDANT
Cite as 2022 VI Super 12
Appearances
Esther R Walters, Esq
Assistant Attorney General
Virgin Islands Department of Justice
213 Estate La Reine
Kingshill St Croix USVI 00850
For Plamnfir
Kye Walker, Esq
220| Church Street
Suite #I6AB 2"d Floor
Christiansted St Croix USVI 00820
For Defendant
MEMORANDUM OPINION
WILLOCKS Presiding Judge
‘1 THIS MATTER is before the Court on Elroy Joseph 5 (hereinafier Defendant ’) Motion to
Suppress Evidence of Blood Alcohol Content filed on November 22 20I9
‘52 The Suppression Hearing was held on March 26 202i The Defendant filed a Supplemental
Post Hearing Argument Regarding Motion to Suppress Evidence of Blood Alcohol Content on March
30 2021 For the reasons stated herein the court shall DENY Defendant 5 Motion to Suppress
People ofthe Virgin Islands v Elroy Joseph 2022 VI SUPER 12
SX l9 CR 200
Memorandum Opinion
Page 2 of 9
113 DEFENDANT S MOTION TO SUPPRESS
114 Defendant moves for the suppression of the toxicology report and any and all evidence related
to the toxicology exam and ask that Count Four Driving under the Influence of an Intoxication Liquor
(20 V l C §492(a)(l ) and (b)( I )) and Count Five Driving with a Blood Alcohol Content of 0 8 Percent
or More (20 V I C § 493(a)(2) and (b)(l)) be dismissed
I BACKGROUND
115 Police officer Melford Murray (hereinafter ‘Officer Murray’) stated that on December l6
20l8 at approximately 8 26 p m , he was dispatched by the 91 I VITEMA Virgin Islands Territorial
Emergency Management Agency Call Center to an Auto Accident on Melvin H Evans Highway and
the Paradise Road intersection on the island of St Croix, United States Virgin Islands (See Affidavit
1[B) Officer Murray stated that he made contact with Defendant who was operating a 20l6 brown
Toyota Corolla and saw passengers trapped inside Defendant 5 vehicle (See Affidavit 11C) St Croix
Rescue Squad was requested to extricate the occupants (See Affidavit 11C) Officer Murray traveled
to the hospital to interview the occupants and stated that he observed Defendant sleeping in room #7
at the Governor Juan F Luis Hospital Emergency Room and was unable to talk (See Affidavit 11F)
$6 Officer Murray stated that while at Juan Luis Hospital Emergency Room on December 16
2018, he smelled an odor of alcoholic beverage coming from Defendant s breath because he was
breathing heavily while asleep (See Affidavit ‘F) Officer Murray stated that this gave him reasonable
suspicion to believe that Defendant may have consumed an alcoholic beverage(s) but was unable to
interview or perform any standardized field sobriety tests (SFST s) on Defendant due to the fact he
was trapped inside his vehicle on the scene and at the hospital he was medicated and was sleeping
(See Affidavit $0)
V Thereafier Officer Murray stated he contacted Dr Wayne Marchant (hereinafter Dr
Marchant ) and advised him of Defendant s accident along with a strong odor of an alcoholic beverage
People ofthe Virgin Islands v Elroy Joseph 2022 V1 SUPER 12
SX 19 CR 200
Memorandum Opinion
Page 3 of 9
on his breath (See Affidavit 1[G) Officer Murray stated that he requested a Blood Alcohol Level of
Defendant and told Dr Marchant he would subpoena Defendant 5 medical record to determine the
percentage of the blood alcoholic content and/or other drugs in his system (See Affidavit 110)
1|8 On April 11, 2019 Officer Murray requested a medical search warrant via the Attorney
General 5 Office for the Blood Alcohol Content of Defendant, and on April 12 2019 a Judge of the
Superior Grant granted the same (See Affidavit 1[U) On April 18, 2019 Officer Murray served the
warrant on lneke Franklin who is the H 1 M Director at the Governor Juan F Luis Hospital and
received the result of Defendant (See Affidavit 1|U) The result of Defendant 5 Blood Alcohol Level
on May 6 2019 was 0 229 unites (BAC) (See Affidavit1lU)
ll LEGAL STANDARD
19 The Fourth Amendment to the United States Constitution protects an individual 5 right to
security in his person home papers, and effects and specifically against unreasonable searches and
seizures ' Generally for a search warrant to be reasonable under the Fourth Amendment it must be
effectuated with a warrant based on probable cause unless it isjustified by a ‘specifically established
and well delineated exception to the warrant requirement ’ People of the Vzrgm Islands v Woodley,
2018 V I LEXIS 61 (Super Ct 2018) (citing Coolidge v NH 403 U S 443 454 55 (1971))
1110 The Fourth Amendment analysis typically proceeds in three stages First the Court determines
whether a Fourth Amendment event, such as a search or seizure has occurred People v Gerald 2020
V1 LEXIS 81 (Super Ct 2020) Next the Court considers whether that search or seizure was
reasonable [d [f the search or seizure was unreasonable the Court must then determine whether the
circumstances warrant suppression of the evidence Id ’ In order to pass constitutional muster a
‘ The Fourth Amendment to the United States is applicable in the l S Virgin Islands pursuant to the Re» ised Organic
Actof1954 §3 48 U S C §156l
(citing People ofrhe V! t 01011an SX 18 CR 130 2020Vl LEXIS 12 (Super Ct Feb 11 2020)(quoting ( niled
Stare“ Smith 573 F 3d 308 312 13 (3d Cir 2009))
People ofthe Virgin Islands v Elroy Joseph 2022 V1 SUPER 12
SX 19 CR 200
Memorandum Opinion
Page 4 of 9
warrantless search must be shown to fall within one of the few narrowly defined exceptions to the
warrant requirement People v Gerald 2020 V1 LEXIS 81 (Super Ct 2020) (citing Government v
Fabian: Ogno 20 V I 404 (Terr Ct 1984))
TI 1 On a motion to suppress evidence the accused must move to suppress evidence that is thought
to be illegally obtained Id at 1 l 12 3 Once it is shown that a search or seizure was conducted without
a warrant, the burden bears to the People to demonstrate by clear and convincing evidence that the
government activity fell within some recognized exception to the warrant requirement Id at I 1 l2 "
11] DISCUSSION
a The issue is whether Officer conducted an illegal search when he directed Dr Marchant to
obtain a blood alcohol level of Defendant without a warrant, and, whether this falls within the
exigent circumstances exception to the warrant reguirement or other warrantless search
ex_ception?
1112 In most cases the government must apply for and receive a search warrant before seeking the
collection of evidence from the person of an individual See People ofthe Virgin Islands v Hardcaslle
55 V 1 93 (Super Ct 201 1) It is well established law that the Fourth Amendment is implicated when
a search involves an intrusion into the human body See United States v Flanders 2010 U S Dist
LEXIS 96752 (D V] September 15 2010) Here the Fourth Amendment is implicated because a
warrant had not been obtained when Officer directed Dr Marchant to take the blood sample of
Defendant (See Affidavit 11G see also Mmozm v McNeer 569 U S 141 (2013) (Where the issue
was a compelled physical intrusion beneath McNeely 5 skin and into his veins to obtain a blood sample
the court held that a warrantiess search is reasonable only if it falls within a recognized exception)
J(citing Gmemmenli 110mm 13 V1 418(T Ct 1978) Rmtlingsi kenmcky 4481' S 98 1008 Ct 2556 65 L Ed
2d 633 (1980))
4(citing Morton supra tchona/dt UniledSIates 335 U S 451
69 S Ct 191
93 L Ed 133(1948) (mIedSIaIest
Jeflels 342US 48 728 Ct 93 96L Ed 59(1951)
People ofthe Virgin Islands v Elroy Joseph 2022 VI SUPER l2
SX 19 CR 200
Memorandum Opinion
Page 5 of 9
T l3 The United States Supreme Court has given guidance on this issue In Mitchell v "/1560an
Petitioner was arrested for operating a vehicle while intoxicated after a preliminary breath test
registered a blood alcohol concentration (BAC) triple Wisconsin’s legal limit for driving See Mitchell
v WISCONSIN
139 S Ct 2525 (20i9) By the time Petitioner reached the station he was too lethargic
for a more reliable test, so, the officer took him to a nearby hospital for a blood test Id Petitioner was
unconscious by the time he reached the hospital and his blood was drawn at a level above the legal
limit [d Petitioner moved to suppress the results of the blood test [d The issue was what a police
officer must do in a narrow but important category of cases those in which the driver is unconscious
and therefore cannot be given a breath test Id
'14 The Court in MIIChe” held when a driver is unconscious the general rule is that a warrant is
not needed 1d A blood draw is a search of a person so the court analyzed whether the administration
without a warrant was reasonable 1d And when a breath test is unavailable to advance those aims a
blood test becomes essential Id Petitioner’s stupor and eventual unconsciousness also deprived
officials of a reasonable opportunity to administer a breath test Id The Court held that the general
importance of an interest in combating drunk driving did not justify departing from the warrant
requirement without showing exigent circumstances that make securing a warrant impractical in a
particular case Id The Conn first pointed to highway safety as a vital public interest Second, the
Court highlighted that when it comes to fighting these harms and promoting highway safety federal
and state lawmakers have long been convinced that specified BAC limits make a big difference Id
Third the Court stated that enforcing BAC limits obviously requires a test that is accurate enough to
stand up in court and extraction of blood samples or testing is highly effective means of measuring
the ‘influence of alcohol ” Thus the warrant requirement falls within an exception where (l) BAC
5See also ll/lSSOIlIi t We Veer 369 U S |4l (U S 2013)
People ofthe Virgin Islands v Elroy Joseph 2022 V1 SUPER 12
SX 19 CR 200
Memorandum Opinion
Page 6 of 9
evidence is dissipating and (2) some other fact creating pressing health, safety, or law enforcement
needs that would take priority over a warrant application [d
1115 This court finds the facts are quite similar to the instant matter and where Officer could not
obtain any of the three standardized sobriety tests he went to the hospital to direct Dr Marchant for a
blood draw Defendant argues that the procedure for obtaining a search warrant was violated because
it should have been obtained prior to the blood draw (See Def ’5 Mot Suppress p 5) In addition
Defendant presented an argument that there was no probable cause in the first place (See Def 5 Mot
Suppress p 7) However the instant matter could properly be characterized as an exception to a
warrantiess search by consent
1116 [n Birchfieldv North Dakota
136 S Ct 2160 2185 (2016) the Supreme Court 0fthe United
States stated [i]t is well established that a search is reasonable when the subject consents, and that
sometimes consent to a search need not be express but may be failed inferred from context ” (citations
omitted) The Supreme Court held Our prior opinions have referred approvineg to the general
concept of implied consent law that impose civil penalties and evidentiary consequences on motorists
who refuse to comply [N]othing we say here should be read to cast doubt on them’ [(1 (citations
omitted ) The Supreme Court recognizes that consent be given in multiple ways including implied
consent by law See Blrchfieldv North Dakota 136 S Ct 2l60 (2016) Defendant gave consent to be
searched when he drove on the roads of the Virgin Islands with the appearance of being under the
influence (See Affidavit)
1117 Pursuant to Title 20 V I C §493c a driver has given his consent to a chemical test by driving
operating or having under his physical control a motor vehicle in the Territory (See 20 V I C §
493c(a)) Under that statute a police officer is permitted to administer a chemical test for the purpose
of determining the alcoholic or drug content of blood if the testing is incidental to lawful arrest of
person who was driving while under the influence of intoxicating liquors or controlled substances
People oflhe Virgin Islands v Elroy Joseph 2022 VI SUPER 12
SX 19 CR 200
Memorandum Opinion
Page 7 of 9
(See 20 V IC § 493c(a)) Defendant in the instant matter was operating a vehicle on December [6,
2018 and was suspected of driving under the influence (See Affidavit 1lB & 110)
'18 Title 20 V [C 493C governs when and how a Virgin Island police officer can administer a
chemical test to a driver The statute has three relevant sections for this instant matter The first section
is 493c(a) that provides ”[a]ny person who drives operates or has under his physical control a motor
vehicle in the Territory shall be deemed to have given his consent to chemical testing of his blood
breath or urine for the purpose of determining the alcoholic or drug content of his blood, provided that
such testing is incidental to a lawful arrest and administered at the direction of a police officer having
reasonable cause to believe such person has violated subsection (a) of section 493 of this chapter and
within two hours after such person has been placed under arrest for any such violation ” (See 20 V I C
§ 493c(a))
1H9 The second relevant section is 493c(d) that provides [a]ny person who is unconscious or
otherwise in a condition rendering him incapable of refusing to take the chemical test or tests required
by this section shall be deemed not to have withdrawn his consent and such test or test may be
administered whether or not the person is informed as specified in subsection (b) hereof’ (See 20
V I C §493c(d))
$20 The third relevant section is 4930(h) that provides [u]pon the trial of any criminal action or
preliminary proceeding in a criminal action arising out ofacts alleged to have been committed by any
person in violation of paragraph (1) of subsection (a) of section 493 of this chapter while under the
influence of a controlled substance the results of any chemical test or tests administered pursuant to
this section shall be admissible into evidence when otherwise admissible ” (See 20 V I C §493c(h))
'2! it is undisputed that Officer ordered Defendant 5 blood to be drawn while he was unconscious
(See Affidavit fiF & 110) However 20 V I C § 493c(d) provides that if a person is unconscious or
otherwise in a condition that makes him unable to refuse to take a chemical test his consent is not
People ofthe Virgin Islands v Elroy Joseph 2022 V1 SUPER 12
SX 19 CR 200
Memorandum Opinion
Page 8 of 9
considered withdrawn by law Title 20 V | C § 493c(d) continues by stating that tests may be
administered whether or not the person is informed Further based on the testimony ofOfficer Murray,
that eye witness stated he was drinking at the party, gives a basis for a field sobriety test However
given the situation, Officer Murray had no other alternatives than to request blood be screened for
alcohol content In People ofrhe Virgin Islands v Caesar No ST 2015 CR 186
2016 LEXIS 18 at
*7 (V 1 Super Ct Mar 4 2016) the Superior Court of the Virgins Island stated that ‘If a person
gives free and voluntary consent to a search a warrantless search is considered constitutionally valid
Consent can be express implied by the circumstances surrounding the search the person 5 prior
actions or agreements or the person 5 failure to object to the search ” Defendant consented to the
search by operating his vehicle on December 16 2018 (See Affidavit 1[B & 11C see also 20 V l C §
493c(d))
[V CONCLLSION
1124 In conclusion the Court shall DENY Defendant 5 Motion to Suppress based upon Title 20
V 1 C §493c et al Officer Murray had the right to administer a chemical test to Defendant There was
probable cause that Defendant had been driving under the influence When Officer Murray asked the
Doctor to determine the blood alcohol content in the Defendant it was done with the implied consent
pursuant to Title 20 Section 493C of the Virgin Islands Code Defendant s incapacity does not negate
the implied consent to chemical tests Due to the lawful search upon the Defendant the Motion to
Suppress will be denied
Accordingly it is hereby
ORDERED that Defendant 5 Motion to Suppress shall be DENIED
People ofthe Virgm Islands v Elroy Joseph 2022 VI SUPER [2
SX 19 CR 200
Memorandum Opinion
Page 9 of 9
DONE and so ORDERED this £19“ day of 2022
L
HAROLD W L WILLOCEE
Presiding Judge of the Superior Court
ATTEST
Tamara Charles, Clerk ofCourt
Date
Court Clerk Supervisor Signature
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS
PLAINTIFF Case No SK 2019 CR 00200
v 20 V l C § 504
14 V I C § 924(2)
14 V I C §625(a)
20 V I C §493(a)(1) and (b)(l)
20 V I C §493(a)(2) and (b)(l)
ELROY JOSEPH 20 V I C §492
20 V I C §494(2)
DEFENDANT
Cite as 2022 VI Super 12
ORDER
AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it is
hereby
ORDERED that Defendant 5 Motion to Suppress filed on March 30 202] is DENIED
( Y?:Vf\
DONE and so ORDERED thus Q day of January 2022
HAROLD W L WILLOCKS
Presiding Judge of the Superior Court
ATTEST
Tamara Charles Clerk of Court
Date
Court Clerk Supervisor