State v. Granger Adds to State’s Missouri v. McNeely Jurisprudence

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State v. Granger, decided last week, is the latest case in which the North Carolina Court of Appeals has considered, in light of Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013), whether an exigency supported the warrantless withdrawal of an impaired driving suspect’s blood over the person’s objection. Readers may recall that the United States Supreme Court held in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement.  The Granger court held that exigent circumstances justified the warrantless withdrawal of the 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.

Facts. The defendant in Granger was driving in Wilmington around 2:19 a.m. when he rear-ended another vehicle. Officer Eric Lippert of the Wilmington Police Department responded to the report of an accident.  When he approached the defendant’s car, he noticed that the defendant was in pain and that he smelled of alcohol. The defendant was taken to the hospital by ambulance.

Officer Lippert spoke with the defendant at the hospital. He noticed during their exchange that the defendant’s eyes were bloodshot and glassy.  The defendant told the officer that he had been drinking.  He said he had taken “‘three shots’” between 10 p.m. and 11 p.m. and that he had taken his last shot twenty minutes before the accident, around 2 a.m. The officer administered two portable breath tests to the defendant. Both were positive for alcohol. He also administered the horizontal gaze nystagmus test, which the defendant “did not pass.”

The officer determined that he has probable cause to obtain a blood sample from the defendant. (It is not clear from the court of appeals’ opinion or the record whether the officer then charged the defendant with impaired driving.  Being charged with an implied consent offense is a prerequisite to obtaining a chemical analysis of a person pursuant to the state’s implied-consent laws. ) The officer then (at 3:10 a.m.) read the defendant his implied consent rights, and waited for a nurse to draw defendant’s blood for analysis. A nurse became available 40 minutes later, at 3:50 a.m., and the officer asked the defendant to submit to the blood draw. The defendant refused.

The officer instructed the nurse to draw the defendant’s blood over the defendant’s objection. A test of the blood sample revealed an alcohol concentration of 0.15.

Procedural History. The defendant was convicted of DWI in district court, and appealed for trial de novo in superior court. He moved in superior court to suppress the blood test results on the basis that his Sixth Amendment right to confront witnesses had been violated by the State’s failure to prove the chain of custody of his blood sample. He also filed a motion to dismiss, arguing that his Fourth Amendment rights were violated because his blood was withdrawn at the behest of the police officer without a warrant.

The superior court determined that there were sufficient exigent circumstances to justify the warrantless withdrawal of the defendant’s blood and therefore denied the defendant’s latter motion, which it characterized as a “motion to suppress.” The superior court did not rule on the defendant’s Sixth Amendment argument. The defendant pled guilty, preserving his right to appeal the superior court’s denial of his motion to suppress.

The defendant argued on appeal that the trial court erred in denying his motion to suppress the results  of the blood test as there was no exigency sufficient to excuse the Fourth Amendment’s warrant requirement.

Court of Appeals Opinion. The court of appeals held that the following factors supported the trial court’s conclusion that exigent circumstances existed:

  • The officer was concerned about the dissipation of alcohol from the defendant’s blood since the officer developed probable cause for DWI more than an hour after the accident.
  • The officer was concerned about dissipation “‘due to delays from the warrant application process[.]’“ (Slip op. at 15.)  The officer estimated that it would take at least 40 minutes to travel to the magistrate’s office, obtain a warrant, and return to the hospital.
  • The officer was investigating the matter alone “and would have had to call and wait for another officer to arrive before he could travel to the magistrate to obtain a search warrant.” (Slip op. at 16.)
  • The officer was concerned that if he left the defendant unattended or waited any longer for a blood draw, the hospital might administer pain medication that would “contaminat[e]” the defendant’s blood sample.

 

Predictable Outcome . . . But Curious Considerations. While some of the specific facts relied upon by the appellate court are curious, the holding in Granger isn’t particularly surprising. After all, the circumstances closely resemble those held to constitute an exigency in Schmerber v. California, 384 U.S. 757 (1966). In both circumstances, the defendant was taken to a hospital for medical treatment following a vehicular accident, and time was required to investigate the accident. While the “40 plus minute delay” that would have resulted in Granger had the officer sought a warrant is not particularly lengthy (Slip op. at 11), it arguably could have, under McNeely, ”significantly undermin[ed] the efficacy of the search,” and thus amounted to the sort of circumstance in which obtaining a warrant is “impractical.” McNeely, 133 S.Ct at 1561.

As for the curious facts, I’m not sure why the officer could not have left the defendant alone in the hospital while he applied for a warrant. [Update: Though not articulated in the trial court evidence or findings, an informed reader advised that departmental procedures typically require that a law enforcement officer who has probable cause to arrest a suspect for DWI  have an officer watch the suspect patient at all times so the patient cannot leave the hospital voluntarily.] And given that the officer testified that he would not stop or interfere with a person’s medical treatment, it is not clear how his remaining in the hospital would have prevented pain medication from being administered if deemed necessary. Moreover, the State has had previous success in establishing the reliability of blood tests performed on samples obtained after pain medication had been administered.  See State v. Armstrong, 203 N.C. App. 399, 418-19 (2010) (noting that State presented three witnesses who testified that the drug administered to the defendant did not increase his blood-alcohol level; cf. BJ’s Wholesale Club v. W.C.A.B. (Pearson), 43 A.3d 559, 564 (Pa. Commw. Ct. 2012) (noting the lack of competent evidence that the prescription pain medication and narcotic taken by the claimant “in any way caused or contributed to her high blood alcohol level”).

The court’s reliance on these factors leaves me wondering whether it would have found an exigency if two officers had been present—even factoring in the same delay. Future jurisprudence will no doubt continue to clarify the parameters of exigency for warrantless blood draws.

6 comments on “State v. Granger Adds to State’s Missouri v. McNeely Jurisprudence

  1. Per the fancy interwebs and their modern mapping tools, it is 4 miles –a 10 minute drive — from New Hanover Regional to Wilmington Police Department headquarters. Seems much, much more likely that the officer did not want to get a warrant. Per this opinion, you don’t have to if you don’t want to. It is patently unreasonable that another officer couldn’t have headed toward the hospital while the investigating officer headed over to get a warrant. I bet Stephen Granger wasn’t going anywhere fast in the next 10 minutes. It is interesting, to say the least, that the officer was willing to testify about a concern for potential medical treatment interfering with his suspect’s blood alcohol level! Woah

    In the (accurate) 4-bullet-point summary of the court’s opinion, 3 are “the officer’s concern” and another is the officer’s aloneliness, containing the false assumption about having to wait for another officer. When I read the Fourth Amendment I can’t seem to find anything about the officer’s concern. Fourth Amendment cases have to call balls and strikes, I get it. Not everyone is going to agree with the outcomes or the analyses. But they should not rest solely on the intangible concerns of the officer. Moreover, those concerns should be legitimate and demonstrable to even be considered in excusing the warrant requirement.

    re is not reason for intelligent law reading people to pretend this is well-reasoned. It is see-through.

  2. meant to delete last 2 sentences. stream of consciousness

  3. It is curious that the concern underlying the exigency is the dissipation of evidence. Yet, the State will not hesitate to call for extrapolation during trial. Isn’t extrapolation meant in some respects to compensate for evidence lost by metabolism? And if extrapolation can provide the evidentiary benefits destroyed or (lost) to metabolism, then does not the concern underlying the exigency evaporate?

  4. I agree with this court’s decision, but in all honestly, the AOC search warrant form for DWI blood takes as much time to fill out as a speeding ticket. It is literally fill in the blank and requires no additional affidavit pages like a normal search warrant would have. Perhaps in a rural county with limited access to magistrates and further driving time, it may be good policy to have officers use the exigent circumstance warrantless route, but if you work in a large populated county, there is no reason you should risk your case by forgoing the search warrant. The sixth amendment issues and the chain of custody going to the “weight of the evidence” is enough to worry about as is.

  5. It takes hours for alcohol to dissipate. It is intellectually dishonest to claim that a 40-minute delay for a blood draw warrant creates an exigent circumstance. 40 minutes is too short a period for significant dissipation to occur. Even if it is long enough for the BAC to drop from .08 to .07, we should err on the side of letting that borderline DWI go rather than let police draw blood on their own authority. In the present case the blood was .15. The State would have lost no more than the ignition interlock punishment had the officer obtained a warrant.
    On the other hand, if a 40-minute delay is an exigent circumstance here, then 40 minutes of delay in Knoll situations should be enough for a dismissal.

  6. excellent point Mr. Rand. If a 40 minute delay would result in such prejudice to the states case that it would allow the most intrusive of all state acts against a citizen without the need for a warrant, surely that same 40 minutes denial of access would be equally prejudicial to the accused’s right to gather the same evidence in his own defense.

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