Go Ahead, Test Me

Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink.  Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest.

Right to pre-arrest test. The implied consent testing statutes afford a person stopped or questioned by a law enforcement officer who is investigating an implied consent offense the right to a breath test before being arrested or charged. G.S. 20-16.2(i). There is no requirement that an officer inform a person of this right.  While no specific wording is required to request a pre-arrest test, the person must articulate the request in terms that a reasonable officer would understand. By making such a request, the person consents to being transported to the breath testing room, where he or she must confirm the request in writing.

Notice of rights. Before conducting a pre-arrest breath test, a chemical analyst must provide a suspect with an abbreviated notice of implied consent rights.  The chemical analyst must inform the person that:

  1.  the test results are admissible in evidence and may be used against the defendant in any implied consent case that may arise;
  2. the person’s driving privileges will be revoked if the test results equal or exceed the per se level;
  3. if the person fails to comply with testing procedures, he or she may be charged with any offense for which the officer has probable cause; and
  4. if the person is charged with an implied consent charge, his or her refusal to submit to testing required as a result of that charge will result in the revocation of his or her driving privilege.

Unlike the notice of implied consent rights that follows a suspect’s arrest, the notice for pre-arrest testing does not include the right to call an attorney for advice or to select a witness to view testing procedures; nor does it provide for a delay in testing for these purposes.

What’s the remedy? Not surprisingly, very few suspects request pre-arrest testing.  Likely because such requests are rare, officers do not always honor them when they are made. Questions then arise about the potential remedy for denial of this statutory right.

Frankly, I’m not sure there is one.

The apparent intent of the pre-arrest testing provision is to prevent charges against a person who registers less than a per se level on a chemical test.  See North Carolina Legislation 1977.  But, if a person registers a breath alcohol concentration that meets or exceeds the per se level or an officer otherwise develops probable cause supporting the defendant’s arrest, the person who is arrested without being afforded a pre-arrest test suffers no violation of constitutional significance.  Cf. Moore v. Cease, No. 703-CV-144 FL 1, 2005 WL 5322794, at *12 (E.D.N.C. July 5, 2005) (unpublished op.) (concluding in federal civil rights suit that even if the police officer violated state law by not affording the suspect a breath test before she was arrested,  the violation did not subject the officer to liability under § 1983 as the Fourth Amendment permits the arrest of a suspect based on probable cause regardless of state law procedures). Moreover, in a circumstance in which the police ultimately develop probable cause, the denial of a pre-arrest test does not prejudice the defendant.

Might the failure to afford a defendant the right to a pre-arrest test be deemed a substantial violation of a statutory procedural right, thereby warranting suppression of evidence under G.S. 15A-974?  I don’t think so.  It is difficult to conceive of a circumstance in which any evidence is obtained as a result of the violation of G.S. 20-16.2(i).  To the contrary, the evidence of a defendant’s impairment gathered during the investigation and after his or her arrest would be gathered regardless of whether the pre-arrest test was performed.  Thus, the evidence does not flow directly from the statutory violation.

Given, however, that I have been asked on several occasions asked about the significance of a request for pre-trial testing, I’m guessing that some readers may have a different view of the appropriate remedy.  Please use the comment feature to share your perspective.


8 thoughts on “Go Ahead, Test Me”

  1. Given that there are already some standards established on detention and when an arrest is affected (is it when the officer forms the opinion that s/he is going to arrest, vs they actually notify the person they are under arrest) in regards to other legal matters, like when to issue Miranda warnings, would similar standards be applied here?

    For instance, if an officer stops a vehicle, then through either brief questioning, odor of alcoholic beverage, whatever, formulates the opinion “I have probable cause to arrest this individual and I’m going to do so,” prior to that individual requesting a pre-arrest test, is that individual still able to solicit the test as a pre-arrest test? The probable cause already exists for the arrest, the officer just has not articulated it yet.

    Should arrest be delayed because an officer took too long to say “you’re under arrest”?

  2. So.. what your saying is… once again defendants have rights but if their rights are violated, there is no remedy. Which is to say, these “rights” are illusory. Didn’t we just have a discussion about Knoll? Wasn’t the result substantially similar?

  3. what are your thoughts in a situation where defendant requests pre arrest test, gets it, and blows over .08. At that point there is obvious p.c. for arrest but is defendant entitled to then have regular intoxilyzer rights read to them and do another “formal” intoxilyzer test? The pre arrest rights don’t inform defendant of their right to call a witness or contact an attorney, so should they be granted all of the formal intoxilyzer procedures after the pre arrest test???

  4. Another scenario I was asked about several months ago involves a crash subject (alcohol involved) requesting pre-arrest testing. However due to the injuries of the person he was transported to the hospital. Since pre-arrest is only available by statute for a breath test one was not afforded to the suspect. Obviously he was not transported from the hospital after treatment for a breath test and was charged under with DWI and rights read under GS 20-16.2(a)and a blood test was conducted. I explained to the officer since pre-arrest was a breath only circumstance that he was correct in denying the request under GS 20-16.2(I). I have also been told some judges being unfamiliar with the pre-arrest rights have dismissed the cases due to the witness/attorney denial under pre-arrest.

  5. Walter says, “So.. what your saying is… once again defendants have rights but if their rights are violated, there is no remedy.”

    Contrary to your belief, the police do make a scrupulous effort to conform to the procedures found within the General Statutes. Officers don’t always need the threat of suppression to encourage following the law. Officers are trained at pre-arrest breath procedures and if they deny someone that statutory right then it may be considered a violation of departmental policy resulting in officer discipline. I know it is difficult to fathom, but the police don’t exist for the sole purpose of violating people’s rights only to be held in check by the almighty judiciary. Cops have ethics too.

  6. I want a test period. If this goes to court, I want certified numbers that prove I was below the legal limit. I do NOT want an arrest record on file anywhere as it would impact my livelihood — I need a clean sheet for security reasons. I don’t drink at all so, if they want to arrest me, it won’t be for intoxication. I want that proof for court.

  7. What if the individuals request the pre arrest test, is taken to the facility to provide the test and then request an attorney. Do they have a right to have a witness present or contact an attorney


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