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.