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.