Four years after a plurality of the United States Supreme Court in Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019), announced a State-favorable exigency rule for withdrawing blood from a suspected impaired driver who is unconscious, the North Carolina Court of Appeals in State v. Burris, COA22-408, ___ N.C. App. ___ (July 5, 2023), has applied the rule for the first time. This post will review the holding in Mitchell and the Court of Appeals’ analysis in Burris and will conclude with a summary of the Fourth Amendment limitations on implied consent testing.
Mitchell v. Wisconsin. In Mitchell, the petitioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Mitchell, 588 U.S. at ___, 139 S. Ct. at 2532. Though no justice found such a statutory exception and the judgment below was vacated, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.
The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when (1) an officer has probable cause to believe a person has committed an impaired driving offense and (2) the person’s unconsciousness or stupor requires him to be taken to the hospital before a breath test may be performed, the State may “almost always” order a warrantless blood test to measure the driver’s blood alcohol concentration without offending the Fourth Amendment. Mitchell, 588 U.S. at ___, 139 S. Ct. at 2539. The plurality did not rule out that in an “unusual case,” a defendant could show that his or her blood would not have otherwise been withdrawn and that a warrant application would not have interfered with other pressing needs or duties. Id. The plurality remanded the case because the petitioner had no opportunity to make such a showing.
State v. Burris, COA 22-408, ___ N.C. App. ___ (July 5, 2023).
Facts and procedural history. A law enforcement officer responding to a report of a single vehicle accident on November 22, 2014 discovered Kyle Allen Burris’s pickup truck crashed against a steel fence. Burris was trapped outside the truck underneath the fence. He was severely injured, unresponsive, and smelled of alcohol. There were open beer cans inside and outside the truck. Burris, still unconscious, was taken to the hospital.
After completing his work at the scene of the crash, the officer went to the hospital. There, he obtained a sample of Burris’s blood while Burris remained unconscious. The officer did not seek or obtain a warrant authorizing the blood draw.
Burris was charged with and convicted of driving while impaired and reckless driving to endanger. On appeal, he argued that the trial court erred by denying his motion to suppress the results of the warrantless blood draw.
The Court of Appeals, in a divided opinion, found that the trial court committed no error.
Court of Appeals’ Analysis.
Statutory authorization not sufficient. The Court of Appeals noted that G.S. 20-16.2(b) permits an officer to direct the taking of a blood sample from an unconscious defendant without first advising the defendant of his or her implied consent rights or seeking the defendant’s consent. Nevertheless, the Court did not rely on this statutory authorization. That is because the North Carolina Supreme Court held in State v. Romano, 369 N.C. 678 (2017) (discussed here), that G.S. 20-16.2(b) was unconstitutional as applied to that defendant because it permitted a warrantless search that violated the Fourth Amendment. Romano further determined that the circumstances of that case did not establish an exigency (a conclusion that appears to be at odds with the framework established two years later by Mitchell) and that the defendant could not have been deemed to consent to the blood draw based solely upon implied consent statutes.
Exigent circumstances. The Burris Court concluded that the State met its burden of establishing sufficient exigent circumstances pursuant to the test set forth in Mitchell to justify the warrantless withdrawal of the defendant’s blood. The defendant was unconscious at the scene and transported to the hospital for treatment of serious injuries. The investigating officer spent an hour investigating the crash and securing the scene. The trooper then went directly to the hospital, where the defendant had been sedated and remained unconscious. Given the severity of the defendant’s injuries, the officer was concerned that the defendant might have to undergo surgery of an unknown duration. The officer also was unsure how long it would take to secure a warrant from a magistrate.
While the Court in Mitchell remanded the case to allow the defendant the opportunity to show that his was the unusual case in which his blood would not otherwise have been withdrawn and a warrant application would not have interfered with other pressing needs or duties, the Burris Court determined that Burris already had been afforded the opportunity to make such a showing before the trial court and had failed to do so. The Court of Appeals thus concluded that the trial court did not err by denying the defendant’s motion to suppress the results of the warrantless blood draw.
A dissent. Judge Tyson dissented from the aforementioned portion of the majority’s opinion on the basis that the facts below did not establish an exigency sufficient to excuse the Fourth Amendment’s warrant requirement.
He faulted the majority for shifting the burden to the defendant to show the necessity for a warrant, and opined that the need for an immediate blood draw was diminished since the hospital would have drawn blood on its own. (The Mitchell plurality in contrast weighed this factor in favor of the determination that there were exigent circumstances.)
Judge Tyson favorably cited the Supreme Court of South Carolina’s refusal in State v. Key, 848 S.E.2d 315 (S.C. 2020), to construe Mitchell as placing the burden on the defendant to show that hers was the unusual case in which the warrantless extraction of blood violated the Fourth Amendment. Slip op. at __ (Tyson, J., dissenting) (citing State v. Key, 848 S.E.2d 315 (S.C. 2020)). The Court in Key “part[ed] company with the Mitchell Court,” declining to “impose upon a defendant the burden of establishing the absence of exigent circumstances.” 848 S.E.2d at 321. A concurring justice explained that by stating that a defendant should be given the chance to make the showing that his was the unusual case, the Mitchell plurality either “(1) implicitly overruled more than seventy years of its own precedent without acknowledging it was doing so, or (2) inattentively used loose language to describe what it meant to say was the State’s ‘chance to attempt to make that showing.’” Id. at 322-23. The concurrence concluded it “has to be the latter.” Id. at 323. Cf. People v. Eubanks, 160 N.E.3d 843 (Ill. 2019) (“Mitchell appears to be saying that, in cases where the ‘general rule’ applies, the burden shifts to defendant to establish the lack of exigent circumstances. [FN] We hope that the Supreme Court will eventually offer more guidance on this point.”)
Burris strikes me as a relatively straightforward application of the “almost always” rule announced in Mitchell, though, given the dissent, we may learn how the North Carolina Supreme Court views the matter.
Finally, given the amount of recent jurisprudence delineating the Fourth Amendment limitations on implied consent testing, I thought a short recap of the relationship between the Fourth Amendment and statutory testing provisions might be helpful.
The Fourth Amendment and Implied Consent Testing
G.S. 20-16.2 authorizes the testing of a person’s breath, blood or other bodily fluid to determine the person’s alcohol concentration or the presence of an impairing substance when the person has been charged with an implied consent offense. Driving while impaired and other alcohol or impairment related driving offenses are classified as implied consent offenses. G.S. 20-16.2(a1). Before administering a breath test or withdrawing a suspect’s blood for analysis, a permitted law enforcement officer must advise the suspect of certain rights and must inform the person that the refusal to submit to testing will result in the revocation of the person’s license.
Because the taking of a blood sample or the administration of a breath test for alcohol is a search within the meaning of the Fourth Amendment, see Birchfield v. North Dakota, 579 U.S. 438 (2016), this testing must comport not only with statutory requirements but also must satisfy the Fourth Amendment. (Urine testing also is a Fourth Amendment search, see Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 617 (1989), and given the significant privacy interests involved likely would be analyzed similarly to the testing of blood, see Eubanks, 160 N.E.3d 843 (so assuming). As a practical matter, in North Carolina breath and blood are the only bodily substances that currently are collected for testing by the State in implied consent cases.) The Fourth Amendment mandates that such searches be reasonable, which generally requires that they be carried out pursuant to a warrant or pursuant to an exception to the warrant requirement, such as consent or exigent circumstances. Birchfield, 579 U.S. at 456. The Supreme Court has established the following principles related to implied consent testing and the Fourth Amendment:
Consent that is implied by statute is not actual consent. United States Supreme Court jurisprudence approving the general concept of implied consent laws does not rest on the notion that such laws create actual consent to all the searches they authorize. Mitchell, 588 U.S. at __, 139 S. Ct. at 2533 (2019). Instead, those opinions have approved actions taken pursuant to the statutory schemes developed to combat impaired driving after determining that the actions authorized by statute comported with the Constitution. See also State v. German, 887 S.E.2d 912. 921 (S.C. 2023) (“[W]e recognize an implied consent statute cannot allow what the Fourth Amendment prohibits. Therefore, to satisfy the requirements of the United States Constitution, a warrantless blood draw [pursuant to state statute] generally must rely on the consent exception to the warrant requirement.”); State v. Prado, 960 N.W.2d 869, 879 (Wis. 2021) (“In the context of warrantless blood draws, consent ‘deemed’ by statute is not the same as actual consent, and in the case of an incapacitated driver the former is incompatible with the Fourth Amendment. Generally, in determining whether constitutionally sufficient consent is present, a court will review whether consent was given in fact by words, gestures, or conduct.”)
Breath testing without a warrant is categorically permissible. Warrantless breath testing of impaired driving suspects is categorically permissible under the Fourth Amendment as a search incident to arrest. Birchfield, 579 U.S. at 474 (discussed here). And a person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution. Id. at 478.
Blood testing without a warrant is not categorically permissible. Warrantless blood testing of impaired driving suspects is not, in contrast, permissible under the Fourth Amendment as a search incident to arrest. Id. at 476. Thus, a warrant or some exception to the warrant requirement, such as consent or exigent circumstances, must be present to render such testing lawful. A person who refuses to submit to such testing may be penalized by having her license revoked, but may not be criminally prosecuted for that refusal. Id. at 476-77.
Exigent circumstances do not categorically exist in every impaired driving case. The United States Supreme Court held in Missouri v. McNeely, 569 U.S. 141 (2013), that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. In so holding, the court rejected the state’s call for a categorical rule—based solely on the evanescent nature of alcohol—that would authorize warrantless blood draws over a defendant’s objection whenever an officer has probable cause to believe the defendant has been driving while impaired.
The United States Supreme Court has not addressed whether the Fourth Amendment permits non-consensual testing of drivers involved in fatal crashes without probable cause of impaired driving. The plurality in Mitchell noted that Wisconsin, like North Carolina, authorizes blood alcohol testing of drivers involved in accidents that cause death even without probable cause of impaired driving. 588 U.S. at ___, 139 S. Ct. at 2531 n.1. The Court did not address the lawfulness of those provisions. Id. Requiring implied consent testing of persons without probable cause for an impaired driving or alcohol-related offense raises constitutional concerns because a nonconsensual search would be unreasonable, and unconstitutional, under a traditional Fourth Amendment analysis absent probable cause to believe that it would lead to evidence of a crime.