Do Implied Consent Procedures Apply to the Withdrawal of Blood Pursuant to a Search Warrant?

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In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine.  In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes.  If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent.  None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.

Purpose of Implied Consent Statutes. Implied consent laws were enacted in North Carolina, as in the other forty-nine states, to make it easier for the State to gather reliable chemical evidence of impairment while, at the same time, avoiding potentially violent citizen-police confrontations. If the State was required to obtain a search warrant in every impaired driving case to justify the search of the defendant’s breath, blood, or other bodily fluids, DWI investigations would take more time. If there was no penalty for a suspect’s refusal to cooperate with such testing, compliance presumably would drop.  And if law enforcement officers were required to physically force suspects to comply with nonconsensual testing in every case, one might expect an increase in physical resistance from suspects.

North Carolina’s implied consent statutes require that a suspect be notified of certain rights before being asked to submit to testing.  A suspect must be informed that (1) she may refuse, but her license will be revoked; (2) the test results or refusal will be admissible at trial; (3) certain results will trigger an immediate license revocation; (4) she may seek her own test, and (5) she may call an attorney for advice and select a witness to view testing, but testing may not be delayed for more than 30 minutes. This notice is designed to incentivize the suspect’s compliance as well as to satisfy due process.  North Carolina’s courts have held that the results of an implied consent test carried out without the defendant having first been advised of his implied consent rights are inadmissible. State v. Williams, ___ N.C. App. ___, 759 S.E.2d 350 (2014).

Search warrants. But implied consent testing isn’t the only way for the State to gather chemical evidence of impairment. When a suspect refuses to be tested, or is incapable of refusing, a law enforcement officer may apply to a magistrate for a search warrant that authorizes the withdrawal of the defendant’s blood for testing. And, though it seldom does so, the State may forego implied consent altogether, opting instead to seek a search warrant for blood at the outset of its investigation. When an officer swears to facts that establish probable cause that evidence of an impairing substance is present in the bodily fluid sought from the person and that the presence of such an impairing substance is evidence of a crime, a search warrant properly may issue. Search warrants for blood in DWI cases typically are issued on form AOC-CR-155. Warrants in this form direct law enforcement officers to “take the person named in the application to a physician, registered nurse, emergency medical technician or other qualified person to obtain sample(s) of blood and/or urine described in the application from the person named in the application” and “to seize the sample(s).”

Implied consent procedures don’t apply when there is a search warrant. Implied consent procedures don’t govern the withdrawal of a suspect’s blood pursuant to a search warrant. Thus, there is no requirement that a suspect be advised of the implied consent rights codified in G.S. 20-16.2 before a search warrant for blood is issued.

Why? As I noted earlier, implied consent statutes are primarily designed to facilitate the gathering of chemical evidence—not to stymie it. Executing a search warrant for the withdrawal of a defendant’s blood remains a viable alternative option for obtaining such evidence.  Indeed, the implied consent statutes themselves recognize this. See G.S. 20-139.1(a) (“This section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.”) Moreover, once a neutral, detached judicial official has issued a search warrant, many of the concerns addressed by the implied consent notice are no longer valid. The suspect’s consent is unnecessary. The license revocation provisions for willful refusal do not apply. The suspect has no need to consult an attorney regarding his or her consent, as the suspect no longer has a choice in the matter.

But what about the definition of chemical analysis? G.S. 20-16.2(a) requires that “[b]efore any type of chemical analysis is administered, the person charged shall be taken before a chemical analyst” who must advise the person of his/her rights.  The term “chemical analysis” is defined as a breath, blood, or urine test “performed in accordance with G.S. 20-139.1.”  G.S. 20-4.01(3a).  Even though blood tests performed pursuant to a search warrant are not performed in accordance with G.S. 20-139.1, the State routinely relies on the provisions of G.S. 20-139.1 in admitting such results into evidence.

Plus, there’s footnote in Williams, ___ N.C. App. at  ___, 759 S.E.2d at 354 n.1, stating that “upon a defendant’s refusal to provide a blood sample as requested, law enforcement may seek a warrant to obtain the blood sample for testing.  N.C.G.S. § 20-139.1(b5).”  Doesn’t that mean that blood draws pursuant to search warrants subject to the implied consent procedures?

Warrant searches are different. Searches pursuant to a search warrant are constitutionally permissible and are authorized by Article 11 of the Criminal Procedure Act. Thus, unlike implied consent testing, there was no need for the General Assembly to enact statutes permitting and regulating the issuance and execution of such warrants in Chapter 20 cases. The inapplicability of implied consent warnings to search warrant searches, for the reasons discussed above, provides evidence that the General Assembly did not in fact attempt to separately regulate such searches in DWI cases.

As for footnote 1 of Williams, G.S. 20-139.1(b5) was cited because Williams involved a DWI and a fatality. G.S. 20-139.1(b5) addresses subsequent testing in DWI cases generally, requiring that a suspect be re-advised of his implied consent rights before being requested to submit to a subsequent chemical analysis under the implied consent procedures. It refers to the issuance of search warrants only for cases involving charges of death or serious injury by vehicle, requiring in such cases that a law enforcement officer seek a warrant to obtain a blood sample if the person is charged with a violation of G.S. 20-141.4 and there is probable cause to believe the offense was alcohol-related. In the routine DWI case, the matter of whether to apply for a search warrant is left to the officer’s discretion.

Thus, the citation of G.S. 20-139.1(b5) in Williams does not signify that advisement of rights is required before a search warrant for a defendant’s blood is executed.

4 comments on “Do Implied Consent Procedures Apply to the Withdrawal of Blood Pursuant to a Search Warrant?

  1. It’s not just about consent, isn’t it also about informing arrestees of their rights, like “(4) she may seek her own test, and (5) she may call an attorney for advice and select a witness to view testing, but testing may not be delayed for more than 30 minutes.”?

  2. We are running across increasing numbers of Spanish non-English speaking defendants who are give written rights in English. They do not understand the forms. Can you point me to anything that deals with this and its impact on DWI prosecution?

    Thanks
    Anthony Vrsecky

    • We always provide the warnings in Spanish to spanish speakers, because how can someone who cannot read the language, or speak it, knowingly and intelligently waive their rights? Seems like that’s a sure-fire appeal to any conviction.

  3. This was a very good read. The typical scenario will be that the officer will attempt to use implied consent to get breath or blood resulting in a refusal. In some cases, the officer will then decide to proceed with a search warrant. Search warrants used not to be as common as officers used the compelling statute within the law. After Missouri v. McNeely, search warrants started to become very common. Many officers still use implied consent forms Officer Affidavit (AOC-CVR-1A/DHHS 3907) and implied consent notification rights form for blood search warrants. In some cases I have seen where the officer turned in the implied consent forms for the breath refusal and then got a search warrant for the blood. The Magistrate then made the officer either complete another affidavit indicating blood was taken pursuant to the SW or sometimes have the officer check blood obtained on the same affidavit as the breath refusal. It is also a toss up on what you will get in district court with search warrants and a lack of implied consent forms. Hopefully with this excellent write up, the law of this state will be a little bit clearer for some. The NC Department of Health and Human Services Forensic Test for Alcohol Branch has incorporated in their training that blood search warrants don’t require implied consent forms for a while now. Then again, a magistrate once said, “I don’t work for DHHS, I work for AOC.”

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