Requests for Blood in Death by Vehicle Cases

G.S. 20-141.4 sets forth six offenses based upon the unlawful killing or injuring of another during the commission of a motor vehicle offense.  All but one of these death or injury by vehicle offenses are felonies and are predicated upon causing death or injury while driving while impaired in violation of G.S. 20-138.1 or 20-138.2. The offenses for which impaired driving is an element are, of course, implied consent offenses. See G.S. 20-16.2 (defining implied consent offense as “an offense involving impaired driving or an alcohol-related offense made subject to the procedures of this section.”) This means that a person arrested for or charged with such an offense may be required to submit to a chemical analysis of his or her breath, blood, or urine. G.S. 20-16.2. In these cases, as with any implied-consent offense, law enforcement officers have discretion regarding whether to administer a chemical analysis. G.S. 20-16.2(a). A law enforcement officer or chemical analyst also decides what type of test or tests are to be given. G.S. 20-16.2(c). There is no statutory requirement that a breath test be requested before a person is requested to submit to a test of his or her blood or urine, see G.S. 20-139.1(b5), though the denial of a person’s reasonable request for a different test may raise constitutional concerns. See Schmerber v. California, 384 U.S. 757, 760 n.4 (rejecting defendant’s argument that withdrawal of blood for testing violates due process and noting that “[i]t would be a different case if the police . . . refused to respect a reasonable request to undergo a different form of testing”).

A person’s willful refusal to submit to a chemical analysis of his or her blood or urine—even if the person already has submitted to a breath test—triggers an indefinite civil license revocation pursuant to G.S. 20-16.5 and a 12-month license revocation pursuant to G.S. 20-16.2.

Misdemeanor death by vehicle, defined in G.S. 20-141.4(a2) as (1) unintentionally causing the death of another person, (2) while violating a State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic—other than impaired driving under G.S. 20-138.1—where (3) commission of the offense is the proximate cause of the death, is, in contrast, not an implied consent offense. Thus, a person charged with such an offense is not subject to any of the implied consent testing procedures recited above.

S.L. 2011-119, enacted June 13, 2011, changes these rules for death by vehicle offenses committed on or after December 1, 2011. First, it provides that misdemeanor death by vehicle is an implied consent offense. That means that a person charged with misdemeanor death by vehicle, which might be predicated upon a traffic violation such as failure to stop at a stop sign that proximately causes the death of another, could be statutorily required to submit to implied consent testing. Yet why would an officer ever elect to conduct such a test without probable cause to believe the defendant was impaired? Of course, probable cause that a defendant was driving while impaired and proximately (but unintentionally) caused the death of another supports a charge of felony death by vehicle, which already was defined as an implied consent offense.

Requiring implied consent testing of persons without probable cause for an impaired driving or alcohol-related offense raises constitutional concerns if such testing is viewed as lawful not because it is premised on true consent, but instead because it merely authorizes what could constitutionally be compelled. (See this post on the theory of implied consent.) The Supreme Court in Schmerber held that a warrantless withdrawal of the blood of a defendant for whom there was probable cause to believe was driving while impaired was reasonable given the exigency created by the dissipation of alcohol in a defendant’s system.  Certainly such a search would be unreasonable, and unconstitutional, absent probable cause to believe that the search would lead to evidence of a crime. On the other hand, perhaps the State can constitutionally condition the privilege to drive on submitting to implied consent testing. Under such a view, implied consent is actual consent and there is no need for further constitutional analysis.

Section 2 of S.L. 2011-119 also amends G.S. 20-139.1(b5) to provide that a person charged with a violation of G.S. 20-141.4 “shall be requested to provide a blood sample in addition to or in lieu of a chemical analysis of the breath.” Read alone, one might conclude, as the act’s title suggests, that “law enforcement [must] request a blood sample under the state implied-consent laws from any person” charged with a violation of G.S. 20-141.4. But given that the General Assembly amended only the “subsequent testing” procedures for implied-consent offenses, it appears that officers maintain the discretion afforded them under G.S. 20-16.2 to determine whether to require testing at all. Once an officer does elect, however, to test a defendant charged under G.S. 20-141.4, S.L. 2011-119 requires that the officer request a blood sample unless the person submits to a breath test and the result is .08 or more. Finally, S.L. 2011-119 provides that if a person charged with G.S. 20-141.4 willfully refuses to prove a blood sample, a law enforcement officer “with probable cause to believe that the offense involved impaired driving or was an alcohol-related offense made subject to [the implied-consent procedures],” must seek a warrant to obtain a blood sample.

Readers, if you have thoughts about the significance of this act, how these changes will alter the investigation of death by vehicle offenses, or any of the other issues discussed in this post, please write in to share your thoughts.

9 thoughts on “Requests for Blood in Death by Vehicle Cases”

  1. If misdemeanor death my motor vehicle will now be considered an implied consent offense….is someone convicted entitled to a limited privilege or could there be a new arguement for this?

  2. my 21 year old son was the victim of a fatal accident in 2006. yes he was wrong he was riding an atv down a city street (now being chased by police) as they chased him through an intersection a driver(drunk) coming to the intersection jumped the light and hit him. he died of multiple injuries on the way to the hospital. i not only had to endure the pain of my childs death but also the agony of knowing what an autopsy involved. my son was alcohol tested (positive) which i already knew (but was not over the legal limit) but the person who hit him was not tested. (knew the person she had just left a baby shower at a bar where she even tried stealing beer from the cooler) i only no this because others i knew were there. the woman showed absolutely no remorse (she even tried to sue for damages) the only peace i have is hoping that every nite when she closes her eyes she sees my sons face in her windshield (maybe even in the bottom of the next glass of alcohol she empties) i know she has to live with this too but i do not feel there was any justice served in my sons death. there may as well be a murderer on the streets because thats what drunk drivers are

  3. On October 30, 2013 my son was walking his motorcycle home from our farm down the road. He was struck and killed by my neighbor. No blood was taken, absolutely nothing was done. To date I have had to fight to have the drivers black box downloaded and it proved she was speeding. It is my belief that upon a fatality in any car three things should be done IMMEDIATELY. 1) Blood should be taken mandatory! 2) Cell phones should be confiscated and reviewed. 3) Black Boxes should be immediately downloaded. This information is invaluable and necessary. How can a Highway Patrol know if someone is on medication that they should not be driving under, or that they are not on something else that is not obvious like the stench of alcohol. Blood test should be mandatory irregardless of them being charged with a crime. North Carolina is one of four states that have antiquated Contributory Negligence laws on the books and ours are the worst… So anybody able to help make some of these changes, or capable of explaining to me why this woman got away with murdering my son please help us. Our son was Not intoxicated or doing anything wrong at all. He was just pushing his motorcycle home after riding on our farm up the road.

    • First,my sincere condolences for your loss . As a father I can only imagine the grief you experience . However, what you propose runs afoul of long established legal principles . If the officers have no reason to suspect impairment they cannot seize ( arrest ) someone and transport them and have their blood forcibly drawn . That requires a warrant based on probable cause or exigent circumstances . Seizing and examining a cell phone also requires a warrant . Same for black box info I am sure . You posed the question ” How can a Highway Patrol know if someone is on medication that they should not be driving under, or that they are not on something else that is not obvious…”. The law is not based on what the police do not know , rather it is based on what they reasonable suspect or know . Without signs of impairment , the police have no reasonable suspicion that impairment is a factor and cannot assume that they MIGHT find something . Just because a death is involved does not mean that a driver is by default assumed to be at fault or impaired . If we allowed the police to seize us and take us away to be tested based only on a vague possibility of impairment not shown to be likely we forfeit our civil liberties . ” Maybe’ s ” do not count in the law .

      Also , you saying that your son was ” murdered ” shows that emotion has no place in the law . The police did not have evidence that the driver in your case intentionally or with gross negligence struck your son so labeling him or her as a murderer is not fair . For example , if I were sober and driving normally and a drunk staggered in front of my car and I struck and killed him , I would feel terrible for the poor soul but would not want to be arrested ( seized ) transported to a hospital , strapped down and have my blood forcibly withdrawn ” just in case “, not would I want my cell phone searched ” just in case ” or my car seized to be examined .

      Sometimes tragic accidents happen to good people, but changing the legal protections we all need to safeguard our liberties is not the right way to respond . Once again , I sympathize with your loss .

  4. For all of the ignorance posted above: the driver was NOT impaired, simply tired from pulling an all night study session. I’m assuming none of you were college students in 2011, so you do not understand the pressure that is put on students during this time of the semester. Know your case before you argue it. Thanks!


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