Warrant Required for Testing of Unconscious DWI Suspect

The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.

Facts. Asheville police received a call that a white male in his thirties who was wearing a gray sweater that he had put on backwards had stopped his sports utility vehicle in the lane of travel on a city street. The man reportedly had gotten out of the SUV and had stumbled behind a local pizza restaurant while carrying a large bottle of liquor. Police officers traveled to the scene, where they saw an SUV registered to the defendant parked in the travel lane on the street. The vehicle’s engine was not running, but the hood was warm. Officers found the defendant sitting behind the pizza restaurant and drinking from a bottle of Montego Bay Light Rum. He was wearing a gray sweater backwards and was covered in vomit.

The defendant attempted to stand up when the officers approached.  One of the officers told him to sit back down. She noticed that his speech was slurred, his eyes were bloodshot and glassy and that he smelled of alcohol. She handcuffed him. He cursed at her.

The defendant was belligerent and could not stand; thus, the officer gave up on her attempt to carry out field sobriety tests. She did administer a portable breath test, which “indicated Defendant was impaired by alcohol.”

The defendant was taken to the hospital in an ambulance. One officer rode in the ambulance. One followed it to the hospital. Another, a sergeant, stayed at the intersection until the SUV was towed and then went to the hospital.

Defendant was combative at the hospital and kicked and spit while hospital staff tried to treat him. Staff eventually sedated the defendant. Once the defendant was sedated, a nurse withdrew his blood for medical purposes. Because she knew that the defendant was suspected of driving while impaired and that police officers wanted their own sample of blood to test, the nurse withdrew an additional vial of blood for the officers’ use.

When the nurse offered the vial to the police sergeant at the hospital, the sergeant said she first wanted to “make sure” the defendant was unconscious. She went into the defendant’s hospital room, confirmed that he was unconscious, and subsequently took the additional vial of blood.

Procedural history. The defendant was indicted for habitual driving while impaired. He moved before trial to suppress the blood evidence.  The trial court granted the motion, concluding that no exigency existed to justify the warrantless search. The court found that several officers were present at the hospital, that the magistrate’s office was only a few miles away, that an application for a search warrant for blood may be completed on a fill-in-the-blank form, and that obtaining such a search warrant is not a time-consuming process. The trial court further concluded that G.S. 20-16.2(b), as applied in this case, ran afoul of the holding in Missouri v. McNeely, 133 S.Ct. 1552 (2013)that that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. The State appealed.

Court of Appeals’ Analysis. The court of appeals affirmed the trial court’s order. The court noted that the police sergeant who obtained the defendant’s blood did not follow the statutory procedures for obtaining a suspect’s consent to a chemical analysis. She did not advise the defendant of his rights or obtain his consent to the withdrawal and testing of his blood. The court rejected the argument that the sergeant’s actions were permissible because they were authorized under G.S. 20-16.2(b), which permits an officer to direct the taking of a blood sample without first advising an impaired driving suspect of his implied consent rights or seeking his consent if the suspect is unconscious or otherwise in a condition that makes him incapable of refusal. Though state appellate courts have previously upheld the lawfulness of withdrawing blood from an unconscious impaired driving suspect pursuant to G.S. 20-16.2(b), the court of appeals noted that those cases “did not have the benefit of the United States Supreme Court’s guidance in McNeely, which sharply prohibits per se warrant exceptions for blood draw searches.”

The court determined that the State failed to carry its burden to show that the exigencies of the situation made it imperative to proceed without a warrant. Under the totality of the circumstances, the court concluded that warrantless withdrawal of the defendant’s blood was not objectively reasonable.

The court also rejected the state’s argument that the blood should be admitted under the independent source doctrine or through the good faith exception.

Significance.  Romano makes clear that officers cannot rely on the provisions of G.S. 20-16.2(b) to circumvent the constitutional requirement that warrant be obtained before blood is withdrawn from an impaired driving suspect without his consent–unless the time required to obtain a warrant would significantly undermine the efficacy of the search. Romano may prove significant not just for its application of the rule in McNeely, however, but also for its implicit rejection of the notion that the defendant provided advance, implied consent to the withdrawal of his blood for analysis, consent that endured through his unconscious state. Cf. Bobeck v. Idaho Transp. Dep’t, 363 P.3d 861, 867 (Idaho Ct. App. 2015) (finding that the defendant’s unconsciousness did not withdraw the consent to testing that she provided by driving) (discussed here). Stay tuned for ongoing analysis of how jurisprudence from our state appellate courts and the United States Supreme Court shapes the interpretation and application of North Carolina’s laws governing the testing of impaired driving suspects.

6 thoughts on “Warrant Required for Testing of Unconscious DWI Suspect”

  1. First, if the Court of Appeals wants to declare implied consent testing unconstitutional because of McNeely, it ought to have the fortitude to do so directly, rather than the meandering it took to reach the resolution in this case. Of course, it couldn’t declare implied consent unconstitutional based on McNeely alone because the Supreme Court only considered the constitutional question of whether the dissipation of alcohol in the defendant’s body created a per se exigency that exempted the warrant requirement for a non-consensual blood draw.

    Implied consent is the exact opposite. It presumes that the defendant has consented to chemical testing by driving on the roads of the state. The Court of Appeals never addressed implied consent in the opinion, and no court should invalidate a statutory scheme on constitutional grounds (remember when determining if a statute is constitutional the Court must presume the statute constitutional). Therefore, by not discussing it, the Court of Appeals is doing all of us a disservice. But they certainly did not reject the notion that the defendant provided advance, implied consent to the withdrawal of his blood for analysis, consent that endured through his unconscious state. A Court cannot reject what it doesn’t discuss.

    In Romano, there are a few other factual realities the Court chose to ignore, simply because they did not like how the officer handled herself. (1) It was the medical provider’s decision to sedate the defendant, not the police, so the State did not cause the unconsciousness. (2) The blood drawn was for medical purposes – taking the additional blood for the State required no additional intrusion. So even though the nurse drew more blood, she was not specifically requested to do so by the officer. (3) Defendant, at the time implied consent rights were read was in fact unconscious. (4) If nurse drew the blood without a request from the state, how is that not a private person acting, and therefore 4th amendment not implicated?

    Those four factors lead to two additional considerations not taken up the Court. One, the 4th amendment exclusionary rule only applies to State action so the nurse’s draw not at the behest of Law Enforcement should not be suppressed. Two, the implied consent procedures for testing an unconscious person were followed. Based upon either, the evidence was admissible.

    And there is one other avenue of analysis not taken. And it comes from a case that originated right here in North Carolina.

    “The question presented is whether such a mistake of law can nonetheless give rise to
    the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can.” Heien v. North Carolina, 574 U. S. ____ (2014) (Slip op. at 1)

    “But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of
    law.” Id. at ___. (Slip op. at 6)

    No court will rule on the constitutionality of the implied consent laws. Law enforcement, their advising counsel, and district attorneys have no guidance to say whether implied consent procedures are still valid. Therefore, how can anyone say that (if implied consent tests are, in fact, unconstitutional) the actions of officers in acting pursuant to the implied consent law, should not be upheld as good faith mistakes of law under Heien? After all, for how many years has this blog had posts dealing with this very question, is implied consent constitutional?

    The problem in this case was that the Court was upset that the officer basically waited until the hospital did what it did, and manipulated the timing of the circumstances to fit her actions into the implied consent law framework and thereby avoid having to (1) confront an angry, drunk, and belligerent subject and (2) go to the trouble of getting a warrant, regardless of whether the process would be simple or time-consuming. (In this case the process was not going to be time consuming).

    So because the Court didn’t like what the officer did, it substituted its own judgment for the law, wrote a slipshod opinion that failed to address any issue other than the lack of a per se rule from McNeely, and handed us yet another case that fails to provide guidance on how law enforcement should approach these situations.

  2. If a LEO is involved in a car chase and the vehicle being chased crashes, does the law say anything about the LEO having to submit to a chemical analysis, either by breath or blood? This topic has come up recently where I work and was looking for some information on it.


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