Second Installment: Suppression of Chemical Analyses in Implied Consent Cases for Statutory Violations

Stan Speedy is charged with impaired driving. He has filed a motion to suppress evidence of blood test results based on a violation of his Fourth Amendment and his statutory rights under Chapter 20. At the suppression hearing, a sheriff’s deputy testifies to the following facts:


At 10 p.m. on the evening of May 1, 2010, I responded to a report of a single-car accident on Highway 411 about 2 miles outside of the Tarheel town limits. Another driver called 911 when he came upon the scene of the accident. By the time I arrived, EMTs had placed defendant on a gurney and were putting him in the back of an ambulance. They took defendant to Tarheel Regional Medical Center. I talked to the driver who had called 911 and I examined the scene. I saw an open bottle of brown liquor on the floorboard of the car. When another deputy arrived on the scene, I left for the hospital. I spoke to Speedy there while he still was strapped to a gurney. He smelled strongly of alcohol. I read Speedy the notice of implied consent rights and placed a copy of the rights on his chest. I told him I was going to charge him with impaired driving. I asked Speedy to let me draw blood and he responded, in pretty slurred speech:  “Whatever.” I asked a nurse to withdraw Speedy’s blood. She did so, and I sent it off to the SBI the next day. The next morning I went to Speedy’s home to serve him with the citation I prepared after I left the hospital. Speedy did not answer the door, so I left a note asking him to come to the sheriff’s department between 3 and 4 p.m. He came by the sheriff’s department around 4 p.m., and I handed him the citation charging him with impaired driving.

How should the judge rule on the motion to suppress?

While the withdrawal of Speedy’s blood at the law enforcement officer’s direction was a search within the meaning of the Fourth Amendment, the resulting search appears to satisfy the exigency exception and reasonableness requirements of this constitutional provision. The officer had probable cause to arrest Speedy and charge him with driving while impaired. See, e.g., Steinkrause v. Tatum, 689 S.E.2d 379, 382 (2009) (finding probable cause based upon one-car accident and the driver’s odor of alcohol). And the exigency created by the dissipation of alcohol excuses the need for a warrant on facts such as these where the defendant already has been transported to the hospital for treatment. See Schmerber v. California, 384 U.S. 757 (1956). Moreover, the search is reasonable as the blood was drawn by trained medical personnel in a hospital environment. Id. at 771. The remaining question is whether the blood draw complied with the implied consent procedures set forth in Chapter 20, and, if not, whether suppression is the appropriate remedy.

G.S. 20-16.2 authorizes the obtaining of a chemical analysis from a person who is “charged with an implied-consent offense,” which occurs when a person is arrested for such an offense or criminal process has been issued, after such a person is informed of his or her implied consent rights, including the right to refuse testing. Though Speedy was informed of his implied consent rights, he had not been arrested or charged at the time the deputy requested that he consent to the test and ordered that his blood be drawn.

Notably, the requirement that a person be charged, notified of his implied consent rights, and requested to submit to a chemical analysis does not apply if the defendant is unconscious or otherwise in a condition that makes the person incapable of refusing so long as the law enforcement officer has reasonable grounds to believe the person has committed an implied-consent offense. See G.S. 20-16.2(b). In considering the constitutionality of this exception for unconscious defendants, the court in State v. Hollingsworth, 77 N.C. App. 36 (1985), noted that “[t]he formality of arrest helps insure that the police will not arbitrarily invade an individual’s privacy, it sharply delineates the moment at which probable cause is determined, and it triggers certain responsibilities of the arresting officer and certain rights of the accused, e.g., Miranda rights.” Id. at 43. Hollingsworth held that this argument lost force when applied to the “delirious defendant,” who could not appreciate the seriousness of the action. Id. at 43-44. Thus, Hollingsworth held that a blood alcohol test performed on blood seized from unconscious defendant at the direction of a law enforcement officer who had probable cause to believe that the defendant had committed an implied-consent offense did not violate the defendant’s Fourth Amendment rights.

In considering whether the version of G.S. 20-16.2 then in effect required an arrest before testing of an unconscious defendant, Hollingsworth found “strong support . . . for the proposition that the Legislature’s intended focus was upon an officer’s having ‘reasonable grounds’ to suspect commission of an ‘implied consent’ offense,” rather than that the unconscious person be arrested. Hollingsworth relied in part on State v. Eubanks, 283 N.C. 556 (1973), a case in which the state supreme court held that the exclusion of the defendant’s breath test results was not required on the basis that the test was performed pursuant to an arrest that was constitutionally valid but illegal for the officer’s failure to first obtain an arrest warrant.

North Carolina’s appellate courts have not considered whether the failure to arrest the defendant before administration of a chemical analysis requires suppression of the results. One could argue that under the rationale employed by courts to deal with other statutory violations related to administration of a chemical analysis (discussed in this post), suppression of the test results is the appropriate remedy. A contrary argument is that the failure to arrest the defendant is not a basis for suppression as the officer’s articulated probable cause to support the arrest functions as a proxy for a formalized arrest.

If you’ve litigated this issue, let us know the outcome in your case.

5 thoughts on “Second Installment: Suppression of Chemical Analyses in Implied Consent Cases for Statutory Violations”

  1. Why do the people at the institute of government, do every thing to make sure the state always win,often in these blogs the people at UNC institute find loopholes for the state. You guys are just as slanted as the SBI: the burden is on the STATE. You guys were also on watch when SBI was making up science. Make it fair. Stop being the states best friend

  2. The results should be suppressed under G.S. 15A-974, based on a substantial violation of Chapter 15A. The reasoning is as follows:

    1. An officer has a right to ask a conscious person to submit to a chemical analysis only when they have been “charged” with violating an implied consent offense, “charged” meaning they have been “arrested for [an implied consent offense] or if criminal process for the offense has been issued.” G.S. 20-16.2(a1).

    The subsection of the statute pertaining to an unconscious motorist has no bearing on your fact pattern – it is simply designed to eliminate a fruitless exercise (i.e., advising a comatose person of their breath/blood testing rights).

    2. A person can be “charged” with a criminal offense by having an arrest warrant, indictment, magistrate’s order, or citation served on him. In your fact pattern, at the time the person’s blood was drawn, the charging instrument was not completed, served, or in any way delivered to the defendant. No legitmate reason other than LEO neglect or forgetfulness would serve to explain the omission, namely, the failure to fill in the blanks on a standard AOC citation form and hand the same to the defendant. This gives rise to the factors weighing in favor of suppression under G.S. 15A-974, such as the deterrent effect, the deviation from lawful conduct, and the importance of the interest served (I think its pretty important that before the police can take someone’s blood for testing that they have to follow the very minimal requirements placed on them by the legistlature).

    3. Based on what I have seen with some frequency in this fact pattern, the police officer will simply wait until the blood results come back before “charging” the person they obtained the blood sample from in the first place. Of course, this leads to the question of whether the person was “charged” initially (as required by statute), then “uncharged” by the officer and let go, in violation of G.S. 15A-501, which in part requires the officer to take the arrestee before a magistrate, which in theory is the first time in the arrest process the defendant is faced with a neutral judicial official with some obligation to make sure their rights are protected.

    Finally, while I appreciate this blog and the work of the IOG, I have to agree with the comments from my friend Jesse. Why does it seem that every time a landmark case comes down (Crawford, for example), the IOG goes into overdrive attempting to give our judiciary reasons to avoid applying the holding in ways that adversely impact the State?

    • i agree, at the end of each blog they put their opinion in and it always seems to give the state room to interpret the case law in ways it wants. this is giving da’s and judges unclear anwsers and landing defendants in prison because a motion was denied. it seems the sog always carves some loophole for the state authorities to abide by.

  3. Shea, you wrote “And the exigency created by the dissipation of alcohol excuses the need for a warrant on facts such as these where the defendant already has been transported to the hospital for treatment. See Schmerber v. California, 384 U.S. 757 (1956).”

    Not so fast. In a recent case in my jurisdiction, a person involved in a one car accident and suspected of DWI was transported to a hospital that happens to be two minutes from the magistrate’s office, which is open for business 24/7, and at which the responding officer could have obtained a warrant to draw blood while en route to the hospital.

    Schmerber and its progeny do talk about exigency, and specifically, what evidence might be lost or dissipated during the time it takes to get a warrant. In the case I described above, there is no rational argument that the evidence would be lost or dissipate in the five minutes or so it would take to get a warrant.

    I bring this up simply to highlight that what seems to be a foregone conclusion in your hypothetical – that a suspect’s hospitalization automatically creates an exigent circumstance – is not really something you can assume. It depends on the time frame involved (how quickly can a warrant be obtained?), and where the hospital and Mag’s office are in close proximity, the exigency issue is literally DOA.


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