LIHUE — The blood draw results of a world famous jumbo surfer were dropped from his criminal case Tuesday after the Fifth Circuit Court ruled the warrantless search by which they were obtained was unconstitutional. James Pellegrine, who is on
LIHUE — The blood draw results of a world famous jumbo surfer were dropped from his criminal case Tuesday after the Fifth Circuit Court ruled the warrantless search by which they were obtained was unconstitutional.
James Pellegrine, who is on supervised release after his father put up a $25,000 bond, was in court to hear testimony on his two motions.
The first was Pellegrine’s motion to allow the defendant to leave the state. The second was his motion to suppress his blood alcohol content results from after an accident on the night of Dec. 19, 2014.
After a nearly two-hour long battle between both counsels, the court ruled in favor of Pellegrine’s motions.
“After hearing the testimony of the witnesses and hearing the arguments of both counsels, frankly there should have been a much earlier concession by the state to this motion,” Fifth Circuit Court Judge Kathleen Watanabe said. “I am quite surprised at the disconnect of the state’s arguments to the court and the testimony of the state’s witnesses.”
Pellegrine is charged with two felony counts of terroristic threatening in the first degree, a class C felony, for allegedly shouting at two ambulance workers as they transported him from the Hanalei police substation to the Wilcox Memorial Hospital emergency room following an accident involving his severed arm, according to court records.
He is also charged with operating a vehicle under the influence of an intoxicant, reckless driving, inattention to driving and driving without a license.
Four witnesses, including three Kauai police officer and a civilian, took the stand Tuesday.
Pellegrine was involved in a minor collision with a woman at the Hanalei Dolphin Restaurant, according to police. Later that night he was involved in another accident with a tow truck driver, which resulted in his arm being severed at the elbow, according to court records. He drove himself to the Hanalei substation looking for help, according to court testimony.
It took KPD officer Brad Candido 17 minutes to decide he was going to get a mandatory blood draw from Pellegrine, according to his testimony on Tuesday.
That’s from the moment he arrived at the Hanalei substation at 6:32 p.m. to the moment he left at 6:49 p.m. to escort Pellegrine’s ambulance to Wilcox Memorial Emergency Room, he testified.
Candido testified that, although he did not know if there was alcohol in the glass, Pellegrine appeared to be drinking a pina colada at the Hanalei Dolphin Restaurant.
Candido testified that Pellegrine was advised not to drive the vehicle in its condition because the airbags had been deployed and the hood of the car was blocking the windshield.
When he arrived at the Hanalei substation, Candido testified he saw Pellegrine’s car covered in blood and a blood trail, which he followed. He testified he then heard Pellegrine shouting, “I only had a couple of pina coladas and I lost my whole (expletive) arm.”
During Pellegrine’s drive into Lihue from Hanelei, he allegedly made threatening comments to two emergency medical services provider in the ambulance, according to police. Candido said at that time he was going to begin his investigation into terroristic threats.
Defense Attorney Michael Soong asked him if he made calls to any detectives during that time. Candido testified he did not, but that he had called his sergeant, per protocol.
He then monitored Pellegrine at the hospital while he was treated for his arm. Pellegrine allegedly made several loud remarks to staff at the hospital, but the doctor in charge declined to press charges, Candido testified.
At that time mandatory blood draws, he testified, were the law.
Candido, a state witness, told the court that getting a search warrant at night would require him to make contact with the prosecutor’s office who would have to approve the warrant and then a judge who would have to sign the warrant. Judges are not available at night, he told the court.
He was on a time limit, he testified. It would take longer than three hours to get a search warrant in 2014, he said.
Hawaii Revised Statutes Section 291 E-3 states an impairing drug has to be detected “within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person’s blood, breath or urine” to be competent evidence.
In State v. McNeely, the court ruled that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”
The state argued that exigent circumstances did exist in Pellegrine’s case.
Deputy Prosecutor Anne Clarkin said the “totality of the circumstances” had to be considered. In this case, that included two accidents involving Pellegrine, which KPD had to investigate and then a search for his arm, which required KPD to close Kuhio Highway. KPD could not be expected to get a search warrant in under three hours given everything that was going on at the time, Clarkin argued.
Once the severed arm was found along the highway, it was packed in ice and transferred to Wilcox hospital. At that point, the state argued, Candido was investigating Pellegrine for terroristic threats he made at EMS technicians.
Before Watanabe handed down the ruling, she told Clarkin that one of her arguments was “not factually correct.”
“And a lot of time was spent on this whole point,” Watanabe said. “There is a judge available. Make sure that your reliance on an argument is factually correct. I just don’t want there to be an impression that judges don’t work at night or on the weekends. If anybody needs a search warrant that they just have to wait it out. That’s just not how it works.”
Prosecuting Attorney Justin Kollar disagreed with the court’s ruling.
“Although the blood alcohol evidence is only a small part of this case, we’ll be taking a close look at whether an appeal is warranted,” he said.
Pellegrine will also be allowed to leave the state from Feb. 3 to Feb. 25 for a business opportunity in California, according to Soong. He also has a medical appointment with his doctors there to see if he can get set up with a prosthetic arm to get back into surfing, Soong said.
The state argued he had bought a one-way ticket, but Soong said he was on supervised released after his father paid $25,000 bond and wouldn’t want to jeopardize that.
Pellegrine is scheduled for trial on March 28.
