Two of last week’s opinions from the North Carolina Supreme Court address significant legal issues arising in impaired driving cases. In State v. Godwin, the supreme court reversed the court of appeals, holding that the trial court was not required to explicitly recognize a law enforcement officer as an expert witness before the officer could testify to the results of a Horizontal Gaze Nystagmus (HGN) test. In State v. Romano, the supreme court upheld the court of appeals’ determination that the withdrawal of blood from an unconscious impaired driving defendant violated the Fourth Amendment, notwithstanding a state statute authorizing this practice. Continue reading
Tag Archives: blood draws
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.
As state crime lab backlogs increase, it takes longer and longer for blood drawn in connection with impaired driving cases to be tested.
In some of these cases, the State may opt to proceed to trial without the results. And sometimes defendants are eager to plead guilty before such blood is tested.
A defendant who believes that her alcohol concentration was 0.15 or more may determine that even without the blood test results, there is an abundance of evidence to establish her guilt. And, if by pleading guilty, the defendant can avoid having the blood tested, then she also can avoid the requirement that she have ignition interlock installed on all of her vehicles for a year following the restoration of her driver’s license.
A few questions arise in the context of such pleas.
May a judge accept such a plea knowing that the blood has not yet been tested?
G.S. 20-139.1(e2) (discussed here) requires that an implied consent case in district court “be continued until the analyst can be present.” For this requirement to apply, however, the State must seek a continuance. Moreover, G.S. 20-139.1(e2) primarily addresses circumstances in which a chemical analyst’s affidavit may be admitted into evidence under G.S. 20-139.1(e1). The continuance requirement thus applies in circumstances in which the analysis already has been performed. The statute does not require continuance so that an analysis may be performed.
May a district attorney agree not to seek a continuance and call such a case for arraignment and trial in order for the defendant to plead guilty?
An alcohol concentration of 0.15 or more is an aggravating factor in an impaired driving case sentenced under G.S. 20-179. The prosecutor is required to present all aggravating factors of which he is aware and also is required “[i]n every instance in which a valid chemical analysis is made of the defendant” to “present evidence of the resulting alcohol concentration.” G.S. 20-179(a)(2). Here, however, no chemical analysis has yet been performed. Thus, these statutory requirements are not implicated.
How does a district attorney prevent the blood from being tested in such cases?
The district attorney submits a “Case Disposition Notice” notifying the state crime lab that the case has been disposed of and that the analysis does not need to be completed.
What if the blood is tested after the defendant’s guilty plea?
This might occur if the prosecutor doesn’t submit a notification that the analysis does not need to be performed or if the blood is tested before the request is received.
In such circumstances, a defendant who pleads guilty to avoid ignition interlock may not receive the benefit she expected. Upon completing its analysis, the state crime lab will submit the chemical analyst’s affidavit directly to DMV as well as to the clerk and the district attorney. If the affidavit reflects an alcohol concentration of 0.15 or more, DMV will impose ignition interlock pursuant to G.S. 20-17.8, which requires that “the results of a chemical analysis, as shown by an affidavit or affidavits executed pursuant to G.S. 20-16.2(c1)” be used by DMV to determine a person’s alcohol concentration.
The United States Supreme Court decided Missouri v McNeely yesterday, holding that in impaired driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The high court thus resolved the split among state courts regarding whether its 47-year-old decision in Schmerber v. California, 384 U.S. 757 (1966), required facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception to the warrant requirement – it does – and rejected the State’s call for a categorical rule authorizing warrantless blood draws whenever an officer has probable cause to believe a person has been driving while impaired based solely on the evanescent nature of alcohol.
Facts. The defendant in McNeely was stopped for speeding. The officer noticed signs that the defendant was impaired by alcohol, and the defendant admitted to having consumed a couple of beers at a bar. After the defendant performed poorly on field sobriety tests, he was arrested.
On the way to the police station, the defendant told the officer he would not provide a breath sample. The officer then drove to the hospital to obtain a sample of the defendant’s blood for analysis. Upon arriving at the hospital, the officer asked the defendant whether he would consent to a blood test, informing him, pursuant to Missouri’s implied consent law, that if he did not, his license would be revoked and the refusal could be used against him in a future prosecution.
The defendant refused. The officer then directed a hospital lab technician to draw the defendant’s blood. Subsequent laboratory testing measured the defendant’s blood alcohol concentration at 0.15.
The defendant was charged with DWI. He moved to suppress the breath results, arguing that taking his blood for chemical analysis without a search warrant violated the Fourth Amendment.
Lower court rulings. The trial court granted the defendant’s motion to suppress. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. The state supreme court affirmed, holding that the U.S. Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), “require[s] more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” Finding no special facts other than the dissipation of alcohol, the Missouri Supreme Court held that the nonconsensual warrantless blood draw violated the defendant’s Fourth Amendment rights.
Supreme court ruling. The Supreme Court granted certiorari to resolve a split of authority on the question of whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. The high court, in an opinion authored by Justice Sotomayor, affirmed the judgment of the Missouri Supreme Court that it does not. The court held that:
- Warrantless searches carried out pursuant to the exigency exception comport with the Fourth Amendment’s reasonableness requirement because there is a compelling need for official action and no time to secure a warrant. Because the police action in such circumstances lacks the traditional justification that a warrant provides, courts must look to the totality of the circumstances to determine whether an emergency existed. The exigency exception thus differs from the categorical exceptions that apply to searches of automobiles and searches of persons incident to arrest, which do not require the courts to assess whether the policy justifications underlying the exception are satisfied.
- While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
- In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
- Some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.
- Exigent circumstances may exist when there is no accident. The procedures for obtaining a warrant and the availability of a magistrate may affect whether there is time to obtain a warrant and thus may establish an exigency.
Concurrence and dissent.
- Justice Kennedy concurred in part and wrote separately to note that states may wish to adopt rules and guidelines giving practical instruction to officers. He further observed that the Court might find it appropriate to consider a case in which it could provide more practical guidance about when an exigency exists.
- Chief Justice Roberts, joined by Justices Bryer and Alito, concurred in part and dissented in part. The Chief Justice agreed with the majority that exigencies are to be determined based on a totality of the circumstances, but argued that because the circumstances in impaired driving cases are often typical, the court should offer more guidance for the police. The Chief Justice argued for the following rule: If an officer investigating an impaired driving case reasonably concludes that there is not sufficient time to seek and receive a warrant or the officer applies for a warrant but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.
- Justice Thomas dissented, arguing that the dissipation of alcohol, without more, constitutes exigent circumstances as it destroys evidence of a crime.
Impact for NC. The North Carolina court of appeals in State v. Fletcher, 202 N.C. App. 107 (2010), employed the totality of the circumstances analysis approved in McNeely in considering whether exigent circumstances existed to support the nonconsensual, warrantless withdrawal of the defendant’s blood in an impaired driving case. Fletcher considered not only the dissipation of alcohol, but also the distance to the magistrate’s office and the time required to obtain a warrant on a Saturday night. Fletcher concluded that an exigency existed based on a potential delay of two to three hours. Because the Supreme Court in McNeely rejected only the per se rule advocated by the State and did not define what length of delay would constitute an exigency, McNeely sheds no light on whether a delay of the sort in Fletcher is a “significant” delay that “negatively affect[s] the probative value of the results.” (Slip op. at 9.)
Fletcher also upheld as constitutional G.S. 20-139.1(d1), which states: “If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.” The court held that the statute required “both probable cause and an officer’s reasonable belief that a delay in testing would result in dissipation of the person’s blood alcohol content,” noting that “[i]n effect, our legislature has codified what constitutes exigent circumstances with respect to DWI’s.” 202 N.C. App. at 98.
Given that Fletcher itself required more than dissipation to support an exigency, perhaps G.S. 20-139.1(d1), as interpreted in Fletcher, and because of its “under the circumstances” clause is constitutional. On the other hand, if the statute is read to authorize warrantless blood draws based on the dissipation of alcohol alone, it clearly violates the standard announced in McNeely.
I’m eagerly awaiting the Supreme Court’s ruling in Missouri v. McNeely. I want to know whether the exigency created by the dissipation of alcohol in the body, without more, permits the police to compel the withdrawal of blood from an impaired driving suspect without a warrant. But there’s one thing I already know: The legal fiction of implied consent will play no part in the analysis.
Indeed, the State made no argument that Missouri’s implied consent law, see Mo. Ann. Stat. § 577.020 (West), obviated the need for the Fourth Amendment analysis. And the justices’ probing questions regarding the State’s ability to forgo constitutional protections when it came to a procedure that intruded into the body demonstrated the likely futility of any assertion a state can avoid the Fourth Amendment analysis in a refusal case by enacting laws that imply or require consent to such a search.
Yet, while state courts (including our own) rely on the Fourth Amendment requirements in analyzing the constitutionality of warrantless compelled blood draws, courts frequently rely on the legal fiction of implied consent as rendering lawful the obtaining of breath samples under threat of license revocation. See, e.g., Seders v. Powell, 298 N.C. 453, 462 (1979) (“[A]nyone who accepts the privilege of driving upon our highways has already consented to the use of the breathalyzer test and has no constitutional right to consult a lawyer to void that consent.). I don’t think the implied consent analysis holds up. Even though breath tests indisputably are less intrusive than blood draws, they nevertheless are searches that implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989). Thus, they too must satisfy the Fourth Amendment’s requirements–regardless of whether a state legislature sanctions their use.
Given that officers do not routinely (if ever) obtain a search warrant before asking a suspected impaired driver to submit to a breath test, consideration of the Fourth Amendment raises the sticky question of whether such searches qualify under an exception to the warrant requirement—an issue that Chief Justice Roberts raised at oral argument in McNeely. When the chief justice asked McNeely’s attorney whether the police needed a warrant to conduct a breath test, the attorney responded that he thought the police probably did need a warrant. That led the chief justice to remark that if the logic of the respondent’s position “leads to the requirement of a warrant for a breathalyzer, that would be pertinent” to the court’s analysis. Justice Scalia threw the respondent a lifeline of sorts, suggesting that he “not bite off more than he could chew,” and positing that what was reasonable for “sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon.”
Whatever the court’s ruling in McNeely, I doubt that it leads to a determination that a warrant is required to force an impaired driving suspect to provide a breath sample. Even if the dissipation of alcohol alone is not enough to render permissible a warrantless blood draw over a defendant’s objection, it may, as Justice Scalia intimated, be sufficient to render permissible a warrantless breath test. Even absent an exigency, searches of deep lung breath may be the type of nonintrusive search that may be conducted incident to arrest. Several courts have upheld breath testing following an arrest for impaired driving on this basis. See United States v. Reid, 929 F.2d 990 (4th Cir. 1991) (finding breath tests permissible under the exigency and search incident to arrest exceptions to the Fourth Amendment’s warrant requirement); Burnett v. Municipality of Anchorage, 806 F.2d 1447 (9th Cir. 1986) (concluding that a breath test following an arrest for impaired driving “is an appropriate and reasonable search incident to arrest” that arrestees “have no constitutional right to refuse”); Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012) (“[T]he statutory scheme that requires a DUI arrestee to take a chemical breath test is a valid search incident to arrest under either theory of DUI [the “under the influence” theory and the “blood alcohol level” theory] when there is independent evidence to charge the arrestee with driving under the influence.”); Commonwealth v. Anderi, 477 A.2d 1356 (Pa. Super. 1984) (concluding that “warrantless seizure of appellant’s alcohol-laden breath is valid either as a search incident to arrest . . . or a search necessitated by exigent circumstances, i.e., the evanescent nature of alcohol in the appellee’s blood stream.”)
So, Virginia, warrantless breath testing likely is constitutional. But, where the Fourth Amendment is concerned, there is no implied consent. And the jury (or rather, the supreme court) is out on compelled warrantless blood draws.
Cyclist Lance Armstrong has recently confessed to using performance enhancing drugs during each of his seven Tour de France victories. Public discussion has focused on whether his apology, during an interview with Oprah Winfrey, was genuine or not. I want to consider whether his conduct was criminal. (By “conduct,” I mean the doping and related activity, not the interview!)
There’s a North Carolina connection. This article observes that at Beech Mountain, near Boone, you can ride “the route Lance Armstrong used to train for his final Tour De France.” And in one of his autobiographies, Armstrong recounts a North Carolina ride that renewed his faith in cycling. (I think it was his first book, It’s Not About the Bike. As an aside, I think it’s a red flag when a person writes more than one autobiography.)
The full story of Armstrong’s systematic doping and his campaign to cover it up is told in this report from the United States Anti-Doping Agency, USADA. Briefly, the agency concludes that Armstrong masterminded “a massive team doping scheme, more extensive than any previously revealed in professional sports history” and engaged in a “fraudulent course of conduct that extended over a decade and leave no doubt that Mr. Armstrong’s career . . . was fueled from start to finish by doping.”
Obviously, Armstong and his foundation have also done a great deal of good, and the purpose of this post isn’t to assess Armstrong’s legacy. My personal view is that the doping and the lying are pretty much par for the course in professional sports, but that Armstrong’s willingness to threaten, sue, slander, and destroy the livelihoods of those who told the truth about his drug use will forever disgrace him.
Anyhow, the basic criminal law issues are these:
Perjury. Armstrong has repeatedly denied, under oath, using performance enhancing drugs. Fox News reports here that “Armstrong, by the USADA’s count, has made seven statements under oath . . . that could lead to criminal charges.” The facts seem to be quite clear-cut, but Armstrong may have some defenses unrelated to factual guilt, as I discuss below.
Obstruction of Justice. In addition to lying about his doping, Armstrong attempted to prevent others from telling the truth about his conduct and the conduct of others. He reportedly told one cyclist who testified in a doping case, “[y]ou made a mistake when you testified . . . I can destroy you,” told another witness that he would make his life a “living . . . hell,” and successfully used his stature within cycling to have another witness fired from his job. This type of conduct would support charges of obstruction of justice or witness intimidation.
Fraud. Armstrong received sponsorship money, race appearance fees, and prize money, all based in part on his representations that he was clean. He is already facing multiple civil suits alleging fraud, and criminal fraud charges, state or federal, may also be possibilities.
Controlled substance charges. Among the drugs Armstrong admitted using as part of his doping regimen was testosterone. Testosterone is a Schedule III controlled substance. Furthermore, it appears that Armstrong provided drugs to other riders on his team and/or pressured them to use drugs, meaning that he may be guilty of drug distribution and conspiracy, not merely simple possession.
Possible defenses or bars to prosecution. Some commentators that have considered the possibility of criminal charges against Armstrong have concluded that the statute of limitations is likely to bar prosecution. (For example, this Sports Illustrated article suggests that the statute of limitations may preclude any perjury or drug charges.) But those articles have generally focused on federal law, which has defined limitations periods for almost all criminal offenses. State laws vary. As readers of this blog know, North Carolina has no statute of limitations for felonies, and other states may also have long or no limitations periods. Given the many jurisdictions across which Armstrong’s conduct took place, including some foreign countries, it strikes me as likely that there are jurisdictions where prosecution remains possible. Furthermore, while it is true that the federal government not long ago publicly declined to prosecute Armstrong, that doesn’t pose a barrier to a new investigation. Jeopardy never attached, the government never entered into a non-prosecution agreement, and the available evidence now is very different. And of course, appropriate state or local authorities may also investigate.
To sum up, Armstrong’s doping-related conduct likely violated multiple criminal laws. I disagree with the comment by prominent defense lawyer Mark Geragos that “I am sure Lance’s lawyer has vetted [his confession to Oprah] and doesn’t see any criminal exposure.” It seems to me more likely that his legal team sees considerable potential criminal exposure, but simply concluded that confessing to Oprah wouldn’t make the danger any greater. Whether prosecuting Armstrong is a good use of resources is a separate question, but the legal basis for possible prosecution appears quite sound.
Kelvin Wilson’s DWI case made the front page of Lawyer’s Weekly last January. Wilson was arrested for impaired driving in Winston-Salem and taken to the hospital. When he physically resisted having his blood drawn, a police officer sat on him to facilitate the extraction. The blood evidence was suppressed (with the State’s agreement) at Wilson’s trial in superior court. Nevertheless, the trial court dismissed the charges on the basis that the blood draw violated Wilson’s constitutional rights. The State appealed, and the court of appeals issued an opinion yesterday reversing the trial court.
Folks who were hoping that the court’s opinion might clarify how much force officers can use to compel a blood draw will be disappointed as the court did not reach that issue. Instead, the court resolved the case on procedural grounds, holding that the trial court had no authority to dismiss the DWI charges as a remedy for the alleged constitutional violations. Even though the case doesn’t flesh out the constitutional framework for use of force, its holding regarding the permissible remedies for constitutional violations is significant because it clarifies an area in which confusion frequently arises.
The trial court in Wilson dismissed the DWI charges pursuant to G.S. 15A-954(a)(1), which requires dismissal if “[t]he statute alleged to have been violated is unconstitutional on its face or as applied to the defendant.” The court of appeals explained that this provision “plainly concerns the statute under which a defendant is charged.” For dismissal of DWI charges to be warranted under G.S. 15A-954(a)(1), a court must conclude that the DWI statute itself—G.S. 20-138.1—is unconstitutional. The trial court in Wilson’s case made no such findings with respect to G.S. 20-138.1, and its conclusion that G.S. 20-139.1 was unconstitutional as applied was no proxy. Thus, the court of appeals held that the trial court erred in dismissing the charges under G.S. 15A-954(a)(1).
The defendant’s motion to dismiss had asserted another basis for dismissal, namely that his constitutional rights had been flagrantly violated, resulting in such irreparable prejudice to the preparation of his case that there was no remedy but to dismiss the prosecution, grounds that require dismissal under G.S. 15A-954(a)(4). Yet, the appellate court noted that the defendant’s motion failed to describe the irreparable prejudice that resulted from the violation, the trial court made no finding of irreparable prejudice, and the defendant did not argue on appeal that he was irreparably prejudiced. Because the appellate court identified no irreparable prejudice, it concluded that G.S. 15A-954(a)(4) did not apply to Wilson’s case.
Accordingly, the court of appeals concluded that there were no statutory grounds for dismissing the DWI charges; thus, the trial court erred in granting the defendant’s motion to dismiss. The appellate court characterized the appropriate argument based on the constitutional violations alleged in Wilson as one for suppression of the evidence and declared that suppression was the only available remedy if a constitutional violation was found. The court noted that in Wilson’s case, suppression was required in light of the State’s stipulation that it would not introduce the challenged evidence at trial. See G.S. 15A-977(b)(2).
What are the broader take-aways from Wilson? The remedies of suppression and dismissal aren’t interchangeable. While suppression of evidence may be a proper remedy when evidence is obtained in violation of the defendant’s constitutional rights, a constitutional violation by itself does not provide a basis for dismissal of charges. Wilson also provides a helpful backdrop for considering the remedies for alleged statutory violations, particularly in DWI cases. Though our courts have sanctioned the suppression of chemical analysis results obtained in violation of statutory procedures, dismissal of charges for such statutory violations is not authorized. Indeed, the only context in which dismissal of DWI charges for statutory violations is authorized is when a defendant demonstrates prejudice resulting from a violation of statutory rights related to pretrial release.
WRAL news reported last week that a Selma police officer had been placed on administrative leave after he allegedly handcuffed an emergency room nurse who refused to withdraw blood from a defendant suspected of impaired driving. The nurse reportedly was released from handcuffs after Smithfield police arrived, and charges against the suspected impaired driver were later dropped after the magistrate found they were unsupported by probable cause. It is unclear whether the officer had a search warrant authorizing the withdrawal of the defendant’s blood. This unseemly emergency room standoff provides a useful context for considering the statutory duties imposed upon medical providers when confronted with a law enforcement officer’s request to withdraw blood.
Before enactment of the Motor Vehicle Driver Protection Act of 2006, S.L. 2006-253, medical providers and other qualified persons were authorized, but not obligated to, withdraw blood from a defendant charged with an implied-consent offense upon the request of the charging law enforcement officer. See G.S. 20-139.1(c) (2005). Those procedures were amended in 2006 to require medical providers and other qualified persons to withdraw blood in implied-consent cases pursuant to an officer’s request. First, S.L. 2006-253 amended G.S. 20-139.1(c) to provide that “when a blood . . . test is specified as the type of chemical analysis by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood sample . . . and no further authorization or approval is required.” This provision applies when an officer seeks the withdrawal of blood from a consenting defendant or from a defendant who is unconscious or otherwise in a condition that renders him or her incapable of refusal. It arguably also applies to circumstances in which an officer requests that blood be withdrawn pursuant to a search warrant since the blood ordered seized in a warrant is “specified” as the type of bodily fluid sought in the officer’s application for the warrant.
S.L. 2006-253 also enacted G.S. 20-139.1(d1) and (d2), which (1) authorize the warrantless withdrawal of blood following a defendant’s refusal to be tested, and (2) prescribe procedures for compelled warrantless blood draws, respectively. G.S. 20-139.1(d2) provides that “when a blood . . . sample is requested under subsection (d1) of this section by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood . . . and no further authorization or approval is required.”
Both G.S. 20-139.1(c) and G.S. 20-139.1(d2) provide that “[i]f the person withdrawing the blood . . . requests written confirmation of the  officer’s request for the withdrawal of blood . . . the officer shall furnish it before blood is withdrawn . . .” An exception to both mandatory-withdrawal provisions allows a medical provider to refuse to draw blood “if it reasonably appears that the procedure cannot be performed without endangering the safety of the person collecting the sample or the safety of the person from whom the sample is being collected.” An officer may request written justification for a medical provider’s refusal to withdraw blood. If the officer does so, the medical provider must provide the written justification at the time of the refusal.
It is thus clear that G.S. 20-139.1(c) and (d1) obligate medical providers to withdraw blood upon an officer’s request. (As noted above, there may be some debate about whether this obligation applies to requests to withdraw blood pursuant to a search warrant. Yet the notion that medical providers are required to withdraw blood upon a law enforcement officer’s request but are not so obligated in response to a search warrant issued by a judicial official defies rational explanation.) What is less clear is whether a medical provider’s failure to comply amounts to a crime. The most likely potential criminal charge is resisting, delaying or obstructing an officer in violation of G.S. 14-223.
Significantly, no statutory provision specifies that a medical provider’s noncompliance with the directive in G.S. 20-139.1 is a crime, an omission that supports the proposition that the legislature did not intend that a third-party medical provider who fails to withdraw blood upon an officer’s request be subject to criminal sanctions. Furthermore, a medical provider’s refusal to draw blood is inaction that differs from the affirmative acts normally considered to amount to resisting, delaying or obstructing an officer in violation of G.S. 14-223. Compare Roberts v. Swain, 126 N.C. App. 712, 724 (1997) (person’s refusal to provide social security number insufficient to establish probable cause for the charge of resisting arrest) with State v. Cornell, 729 S.E.2d 703, 706 (N.C. App. 2012) (defendant’s stepping between officers and suspected gang members while officers were attempting to prevent conflict at a public festival and in telling officers not to talk to gang members and refusing to step away constituted sufficient evidence of obstructing and delaying officers in the performance of their duties). It is unclear whether this sort of refusal to assist an officer, even in light of the statutory duty, amounts to resisting, obstructing, or delaying an officer.
On the other hand, one might argue that because the statutory directive in G.S. 20-139.1 exists to facilitate a law enforcement officer’s investigation of impairment-related crime, a medical provider’s failure to comply with the directive amounts to obstructing an officer under G.S. 14-223. Cf. Janet Mason, Reporting Child Abuse and Neglect in North Carolina 53 (2d. ed. 2003), available here, http://sogpubs.unc.edu/electronicversions/pdfs/rca/ch10.pdf (analyzing arguments for and against the prosecution of failure to report child abuse or neglect as required in G.S. 7B-301 as general misdemeanor offense).
Suppose that the medical provider refuses to withdraw the blood when confronted with a search warrant. Does this constitute criminal contempt? That seems unlikely. Search warrants for blood in DWI cases typically are issued on form AOC-CR-155. Warrants in this form direct law enforcement officers to “take the person named in the application to a physician, registered nurse, emergency medical technician or other qualified person to obtain sample(s) of blood and/or urine described in the application from the person named in the application” and “to seize the sample(s).” They do not direct individuals who are not parties to the action to perform any duty. Thus, a medical provider who refuses to draw blood has not willfully disobeyed or resisted a court order, acts defined as contemptuous under G.S. 5A-11(a)(3). One might argue that a medical provider who violates the blood-withdrawal directive in G.S. 20-139.1 when confronted with a search warrant has interfered with executing the court’s order in violation of G.S. 5A-11(a)(3). However, it is doubtful that the refusal to perform some affirmative act, as contrasted with performing an act to prevent the execution of an order, constitutes “interference” within the meaning of G.S. 5A-11(a)(3).
It probably goes without saying (but I’ll say it anyway) that, even if lawful, the issuance of criminal process against medical providers may damage the working relationship between law enforcement officers and medical professionals. For many years and in many locations around the state, officers have obtained samples of defendants’ blood in impaired driving cases without arresting or charging medical personnel. Agreement between law enforcement and hospital personnel regarding the protocol for blood-draw requests might head-off the sort of confrontation that arose in Johnston County. Indeed, collaboration of this sort resulted in the State Highway Patrol’s decision last July not to request emergency medical technicians (EMTs) to withdraw blood for chemical analysis, notwithstanding the statutory directive in G.S. 20-139.1(d2). After the Office of Emergency Medical Services raised concerns that the statutory directive was inconsistent with the authorized skill set for EMTs, the Highway Patrol issued a memorandum instructing its members not to request EMTs to withdraw blood.
Readers: How does this work in your city and county? Do medical providers routinely and uneventfully withdraw blood upon officers’ requests and pursuant to search warrants? Or do conflicts frequently arise? If and when they do, how are they resolved?
The lead story in the January 30, 2012 issue of North Carolina Lawyer’s Weekly was headlined “Necessary’s Restraint: The night police officer Richard Necessary sat on a drunk-driving suspect in order to get a blood sample might prove to be the night when courts realized enough is enough.” The newspaper reported that a superior court judge recently dismissed impaired driving charges against Kelvin Wilson, apparently after determining that the withdrawal of Wilson’s blood violated his constitutional rights. The Winston-Salem Journal’s coverage of the story is available here. Both newspapers report that the State has appealed the order dismissing the case to the court of appeals.
Given recent attention focused on the issue of forcible blood draws, I thought it might be useful to review the constitutional framework for evaluating whether an officer’s use of force in this context violates the Fourth Amendment. An officer who has (1) probable cause to believe a person has committed an offense involving impaired driving, (2) a clear indication that the blood sample will provide evidence of the defendant’s impairment, and (3) either a search warrant or exigent circumstances, may compel a person to submit to a forced extraction of blood. Schmerber v. California, 384 U.S. 757 (1966).
To satisfy the Fourth Amendment, the forced extraction itself must be performed in a reasonable manner. See Schmerber, 384 U.S. at 771; see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard). Schmerber determined that the extraction of the defendant’s blood “by a physician in a hospital environment according to accepted medical practices,” was a reasonable search. Id. at 771. Because, however, the petitioner in Schmerber, while objecting to the withdrawal of his blood, did not forcibly resist, Schmerber provides little guidance in determining the degree of force that may be utilized to obtain a nonconsensual blood sample.
While North Carolina’s courts have acknowledged the constitutionality of a compelled blood draw performed by a medical professional in a medical setting, see State v. Fletcher, 202 N.C. App. 107 (2010) and State v. Davis, 142 N.C. App. 81 (2001), no North Carolina appellate court opinion has addressed the extent of the force that may be utilized in association with the compulsion.
Courts in several other jurisdictions have addressed this issue, though the analysis varies too greatly to glean any generally applicable principles beyond the framework set forth above. For example, the Michigan Court of Appeals has adopted a comparatively more expansive view of what constitutes reasonable force, holding in People v. Hanna, 567 N.W.2d 12 (Mich. App. 1997), that police acted reasonably in briefly using “Do-Rite” sticks (a device consisting of plastic rods connected with a cord that is utilized by wrapping the cord around a person’s pressure points and pulling or twisting the rods) to subdue a defendant for purposes of withdrawing his blood pursuant to a search warrant. The Hanna Court determined that the nature and quality of the intrusion was not severe, unnecessary, or unduly intrusive, explaining: “[D]efendant was so combative that handcuffs and bed restraints would not have effectively prevented him from moving during the drawing of his blood. Even if the two officers were large and strong enough to control the defendant without using Do-Rite sticks, it is doubtful whether the force exerted in physically overpowering, positioning, and holding the combative defendant would have been less violent or caused less pain than the Do-Rite sticks.” Id. at 15.
Similarly, a federal district court in Laskey v. Legates, 519 F. Supp.2d 449 (D. Del. 2007), determined that the plaintiff failed to demonstrate for purposes of his civil action under 42 U.S.C. § 1983 that the amount of force used by the officers in securing his blood for analysis in an impaired driving prosecution was unreasonable. The plaintiff told the arresting officer on the way to the hospital, “You better get the big boys because there is no way you are getting blood from [me].” After a struggle with the plaintiff in the hospital parking lot, officers shackled his legs and carried him into the hospital. The officers placed the plaintiff on a bed, and three of them held his arms and legs down while a nurse drew blood. The court granted summary judgment in favor of the officers, finding that no material fact existed as to whether the amount of force was unreasonable “in light of the facts and circumstances confronting the officers.”
In contrast, the New Jersey Supreme Court in State v. Ravatto, 777 A.2d 301 (N.J. 2001), adopted a narrower view of the reasonable degree of force in such circumstances, holding that the use of several people and mechanical constraints to restrain the DWI defendant for purposes of extracting blood as he flailed and shouted was unreasonable given the defendant’s fear of needles, his violent reaction, and his expressed willingness to submit to a breath test. The court considered this last factor relevant despite the fact that no breath-testing instrument was available at the hospital to which the defendant had been transported for medical treatment. Id. at 245.
Decades ago, the United States Court of Appeals for the Ninth Circuit, sitting en banc in Hammer v. Gross, 932 F.2d 942 (9th Cir. 1991), was stymied in its efforts to collectively define excessive force in this context. A majority of the court ruled that there was evidence from which a rational jury could find that officers used unreasonable force in extracting the plaintiff’s blood in connection with his arrest for impaired driving, but only a four-judge plurality agreed on a four-factor analysis for making that determination: (1) the plaintiff actively resisted the extraction of his blood; (2) the plaintiff was arrested for a misdemeanor offense; (3) the defendant agreed, after some force had been applied, to submit to a breath test; and (4) if the authorities had obtained a breath sample, they likely would not have needed the blood sample. Id. at 846 (plurality op.). Two other judges concluded that the forcible extraction of the plaintiff’s blood was rendered unreasonable solely by the plaintiff’s agreement to submit to an alternative test. Id. at 851 (Kozinski, J., concurring in part).
The reports regarding Wilson’s case suggest that the North Carolina Court of Appeals may be called upon to provide guidance regarding the force officers may use to extract blood in an impaired driving case. If that happens, I’ll be sure to revisit this issue in a future post.
A recent en banc decision from the Supreme Court of Missouri adds to the growing divide among state appellate courts regarding whether the exigency created by the dissipation of blood-alcohol levels is sufficient, by itself, to render a nonconsensual, warrantless blood draw from a person arrested for impaired driving a reasonable search and seizure under the Fourth Amendment. The Missouri high court in State v. McNeely, 2012 WL 135417, __ S.W.3d. __ (January 17, 2012), rejected the State’s argument, premised on Schmerber v. California, 384 U.S. 757 (1966), that the natural dissipation of blood-alcohol evidence is alone a sufficient exigency to dispense with the Fourth Amendment’s warrant requirement. McNeely viewed Schmerber as requiring special facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception. In Schmerber , those additional facts included the time delay created by the investigation of the accident and the transportation of the defendant to the hospital.
The defendant in McNeely was stopped for speeding. When the officer noticed signs of intoxication, the routine traffic stop transformed into a DWI investigation. After the defendant performed poorly on field sobriety tests, he was arrested. Once the defendant was secured in the patrol car, the officer asked him if he would submit to a breath test. The defendant refused. The officer then drove directly to the hospital to obtain a sample of defendant’s blood for analysis. The defendant refused to voluntarily provide a sample. Nevertheless, twenty-five minutes after the defendant was stopped, a phlebotomist at the hospital withdrew the defendant’s blood.
The McNeely Court found no special facts of exigency beyond the dissipation of alcohol. Thus, the court determined that the nonconsensual, warrantless blood draw violated the defendant’s Fourth Amendment rights.
McNeely cites appellate court opinions from jurisdictions sharing its view that the exigency exception to the warrant requirement carved out in Schmerber requires a showing of exigencies beyond the evanescence of alcohol, see United States v. Chapel, 55 F.3d 1416 (9th Cir. 1995); State v. Johnson, 744 N.W.2d 340 (Iowa 2008); State v. Rodriguez, 156 P.3d 771 (Utah 2007), as well as opinions from courts considering the rapid dissipation of alcohol by itself a sufficient exigency, see State v. Machuca, 227 P.3d 729, 736 (Or. 2010); State v. Netland, 762 N.W.2d 202 (Minn. 2009); State v. Bohling, 494 N.W.2d 399 (Wis. 1993).
North Carolina appears to fall on the dissipation-plus side of the interpretive divide. In State v. Fletcher, 202 N.C. App. 107 (2010) (discussed here), the court found “the exigency surrounding obtaining a blood sample when blood alcohol level is at issue . . . and the evidence of a probability of significant delay if a warrant were obtained,” to constitute sufficient evidence of exigent circumstances. The court’s consideration of the officer’s testimony about the distance to the magistrate’s office and the potential wait there as well as at the hospital indicates that dissipation alone may not establish an exigency sufficient to excuse the warrant requirement. The Fletcher court also upheld as constitutional G.S. 20-139.1(d1), which provides that if a person charged with an implied consent offense refuses testing, “any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine,” characterizing this provision as the state legislature’s “codif[ication] of what constitutes exigent circumstances with respect to DWI’s [sic].” The “under the circumstances” clause in G.S. 20-139.1 appears to reflect the view that dissipation may not, in all circumstances, amount to an exigency.