Hospitalization of DWI Suspect Does Not Create Per Se Exigency Justifying Warrantless Blood Draw

The Chatham County sheriff’s deputy who arrested Ronald McCrary in Siler City for impaired driving at 7:34 p.m. on December 28, 2010 decided that if McCrary was taken to the hospital, he would obtain a sample of his blood without a warrant. McCrary was in fact taken to a nearby hospital—at his insistence—where he refused to cooperate with the medical staff and refused to consent to the withdrawal of his blood. Once the hospital discharged McCrary at 9:13 p.m., several officers restrained him while hospital staff withdrew his blood. Was the blood draw legal? 

Background. Following the United States Supreme Court’s determination in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol does not, by itself, create a per se exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement, courts across the country have been called upon to examine the circumstances that do constitute such an exigency. The North Carolina Court of Appeals recently determined in State v. Granger, __ N.C. App. __ (2014), that exigent circumstances justified the warrantless withdrawal of a defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant, and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital.

State v. McCrary differs from Granger. The defendant in McCrary was arrested nearly an hour after he last drove.  In Granger, officers responded to an accident caused by the defendant shortly after it occurred. Thus, there was arguably a greater need for an expedient withdrawal of the defendant’s blood in McCrary.  Unlike Granger,where only one officer accompanied the defendant to the hospital, two officers were present at the hospital with McCrary.  One rode in the ambulance, and the other followed in his patrol car. One might argue that the second officer could have left the hospital or delayed his arrival in order to seek the issuance of a search warrant.  But while Granger was taken to the hospital for medical treatment and thereafter merely refused to consent to the withdrawal of his blood, McCrary insisted that he be taken to the hospital, though he did not in fact require treatment, and was combative with officers and medical personnel beginning shortly after his arrest until the time his blood was withdrawn. This behavior lengthened the investigation, postponed the obtaining of evidence, and arguably required that more than one officer remain on the scene. Indeed, McCrary was charged with and convicted of communicating threats based upon his post-arrest conduct.

Procedural history. McCrary moved to suppress the evidence obtained as a result of the warrantless blood draw on the basis that there was no exigency. McCrary argued that the deputy who arrested him and who followed the ambulance in his patrol car had ample time and ability to secure a search warrant. The arresting deputy testified at the suppression hearing that no magistrate was present in Siler City at nighttime, and that, to obtain a warrant, he would have had to take McCrary to the magistrate’s office in Pittsboro, where a magistrate might have to be called in, and then back to the hospital in Siler City to have his blood drawn.  The trial court concluded “[b]ased upon the time elapsed to that point and the additional time and uncertainties in how much additional time would be needed to obtain a search warrant or other court order for defendant’s blood and all other attendant circumstances,” that exigent circumstances excused the need for a warrant.  McCrary appealed.

So what’s the answer?  We don’t yet know whether the blood draw was lawful.  The court of appeals remanded the case for additional factual findings addressing the availability of a magistrate and the probable delay in seeking a warrant. The court reasoned that without such specific findings it could not properly review the trial court’s conclusion of law that exigent circumstances existed. Judge Calabria dissented, arguing that the undisputed findings established that the deputy chose to follow the defendant to the hospital rather than attempting to secure a warrant; thus, there was no plausible justification for an exception to the warrant requirement.

Though the status of McCrary’s blood draw is uncertain, one can readily conclude from the majority opinion that the transporting of a DWI defendant to a hospital does not automatically excuse the need for a warrant. Thus, an officer investigating an impaired driving case involving a hospitalized defendant who refuses to submit to a blood test must consider whether, notwithstanding the hospitalization, a warrant can be obtained within a timeframe that will not significantly undermine the efficacy of the search.

I’m not convinced by the dissent’s view that an officer must evaluate the exigencies before a defendant is even afforded an opportunity to consent to a blood draw. It seems to me that a reasonable officer would not have attempted to obtain a search warrant before ascertaining that McCrary was not going to voluntarily provide a blood sample pursuant to the state’s implied consent laws. Certainly, an officer could not intentionally delay such request in order to rely on an exigency of his or her own making, but there is no indication that the deputy did so in McCrary’s case.

There appears to be plenty in the record to support the trial court’s conclusion that the time necessary to obtain a warrant in McCrary would have significantly compromised the evidence. Nearly three hours elapsed from the time the McCrary drove until the time he refused to consent to a blood draw. Pittsboro is 17 miles from Siler City, and a round trip to obtain a search warrant would have surpassed the 40-minute delay deemed significant in Granger.  The fact that the arresting officer decided early on that he would not seek a warrant strikes me as irrelevant; the question is whether a reasonable officer would viewed the circumstances as establishing an exigency.  It seems to me that one would.