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Breath Tests Incident to Arrest are Reasonable but Prosecution for Refusing a Blood Test Goes Too Far

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

  • Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
  • Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

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The Right to Life, Liberty, and Fifteen Additional Days to Renew Your Registration

Before I became a lawyer, I finished everything ahead of time. Term paper? Completed two weeks early. Trip? Packed a week in advance. Taxes? Filed in February. Alas, those days are nearly two decades behind me. Now I squeak in just under the wire with everything I do—including my weekly blog posts. I could proffer a host of reasons, but don’t think I need to so long as I meet the deadline. My modus operandi may explain why I was particularly troubled by the traffic stop in State v. Baskins, ___ N.C. App. ___ (May 17, 2016).

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A political science professor, a civil rights lawyer and a police chief walk into a classroom . . .

I haven’t figured out the punch line to this joke. It was my opening line for a traffic stops session taught last month in the special topics seminar, Race Issues in the Courts, by UNC Professor Frank Baumgartner, Southern Coalition for Social Justice Staff Attorney Ian Mance, and Fayetteville Police Chief Harold Medlock. One reason that it is hard to finish the joke is that these three were on the same page, which is somewhat surprising given the roles they occupy.

I immediately thought of that talk yesterday when I saw this News and Observer photograph of United States Attorney General Loretta Lynch standing next to Chief Medlock. Lynch traveled to Fayetteville as part of her nationwide community policing tour. She chose Fayetteville in part because of the work the presenters discussed at our April conference.

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Blanket Objection by State to Fact-Findings Sufficient to Trigger De Novo Review in DWI Case

If you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.

So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

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Court of Appeals Rules That Officer Had Reasonable Suspicion to Extend Traffic Stop

Jeff Welty in his post here yesterday discussed last week’s North Carolina Court of Appeals ruling in State v. Bedient. Today, I will discuss another ruling decided on the same day: State v. Castillo. Both cases are post-Rodriguez cases with different outcomes, with Bedient resulting in a ruling for the defendant and Castillo a ruling for the State.

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Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion

Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.

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Only Experts Can Testify About HGN

Author’s note:  I added the conclusory paragraph at the end of this post shortly after its initial publication in response to helpful questions from readers about the significance of State v. Godwin and State v. Torrence.

Like Supercalifragilisticexpialidocious, horizontal gaze nystagmus is a mouthful. Unlike Supercalifragilisticexpialidocious, not just anyone can utter horizontal gaze nystagmus and sound wise beyond her years. Two recent court of appeals opinions hold that that a witness be qualified as an expert before testifying about the results of a horizontal gaze nystagmus test.

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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.

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