In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception. Continue reading
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Failing to advise a defendant of his implied consent rights requires suppression of the test results . . . except when it doesn’t
My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to Melendez-Diaz. That case held that forensic reports are testimonial and subject to the new Crawford confrontation clause analysis. One slam dunk solution to the Melendez-Diaz issue is for the State to bring all of the analysts to court. But that’s expensive so folks have been looking for other solutions. Many of the solutions that I’ve heard focus on legislative changes. Although there are some legislative solutions, in the end there is only so much legislating that can be done regarding a constitutional issue. So that got me wondering: What practical solutions are out there? Here are a few ideas. Please weigh in on whether these are viable and share any additional thoughts that you have. If you prefer to contact me directly, here’s my email: email@example.com
1. Encourage Officers to Become Certified Chemical Analysts. Many officers already are certified to perform a chemical analysis in DWI cases. When that’s the case, there is no Melendez-Diaz issue in the garden variety case. Because the officer has to testify as the primary fact witness for the State, the officer already is in court.
2. Use Blood Tests Sparingly in DWI Cases. Although it strengthens the prosecution’s case to have a blood test, they aren’t needed in every situation. Suppose for example the officer can testify: “I saw the defendant driving at 2 am in an area filled with drinking establishments. Defendant was weaving out of the lane of traffic, drove through a stop sign, and was driving 15 miles below the posted speed limit. When I stopped his car his eyes were glassy, he reeked of alcohol and he was unsteady on his feet. Empty beer bottles littered the passenger seat. He failed field sobriety tests.” A blood test would amplify the case but on these facts it’s not needed. One way to ration limited resources to use them only when they are required. That means save blood tests for cases where guilt can’t be established without them or where the charge is very serious (e.g., second-degree murder).
3. Pair Blood Analysts With Officers & Improve Case Scheduling. All officers have pre-scheduled court dates. If a blood analyst is paired with a particular officer, the two would share the same court dates. So for example, every blood test submitted by Officer X gets handled by Analyst Y. If Officer X’s blood test DWI cases are scheduled on the same day, Analyst Y only has to come to court on that one day to testify in Officer X’s cases.
4. Regional Labs. They cost money, but they’d create efficiencies in terms of analyst travel time.
5. Change Lab Procedures for Using Analysts. By their nature, some cases require a variety of different types of analysts. But some cases only require one type of analyst. When that’s the case, make it the same person, thereby reducing the number of potential people who have to testify in court.
6. Change Procedures for Chain of Custody. Chain of custody information is testimonial. If seven people sign the custody log as evidence custodians, this creates the possibility of having to bring a handful of people to court just to authenticate the evidence. If procedures are changed so that no more than two people do this job for every case, it reduces the number of people required to prove chain of custody.
7. Videotape Testing. This idea steps half-way into the legal area but here goes. If a forensic analysis is videotaped so that a testifying analyst can see each and every step of the process, including calibrating equipment, etc., it’s arguably as if the testifying analyst is standing by the testing analyst’s side. Although Williams cast a great veil of uncertainty over the use of substitute analysts, this is more than the testifying analyst had in that case, which of course was affirmed by the high court.
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.