Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving. A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post. This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws. Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI. Continue reading
Tag Archives: implied consent
In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine. In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes. If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent. None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.
Prosecuting impaired drivers in Georgia just got a little bit harder. The Georgia Supreme Court held last week in Williams v. State, __ S.E.2d __ (Ga. 2015) that the mere fact that a DUI suspect agreed to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement. Is this a watershed moment in implied consent law? Continue reading →
Myra Lynne Combs beat her DWI charges in court. The trial court held that the officer who stopped her didn’t have a lawful reason to do so. So the trial court suppressed all the evidence resulting from the stop, and the State dismissed the charges. But Combs’ license was revoked for a year anyway based on her refusal to submit to a breath test after she was arrested. Combs didn’t think that was right, so she took her case to the state court of appeals. Continue reading →
Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink. Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest. Continue reading →
The Chatham County sheriff’s deputy who arrested Ronald McCrary in Siler City for impaired driving at 7:34 p.m. on December 28, 2010 decided that if McCrary was taken to the hospital, he would obtain a sample of his blood without a warrant. McCrary was in fact taken to a nearby hospital—at his insistence—where he refused to cooperate with the medical staff and refused to consent to the withdrawal of his blood. Once the hospital discharged McCrary at 9:13 p.m., several officers restrained him while hospital staff withdrew his blood. Was the blood draw legal? Continue reading →
The United States Supreme Court held in Missouri v. McNeely, 133 S. Ct. 1552 (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. Some states have continued to argue, however, that nonconsensual warrantless blood draws in impaired driving cases are categorically permissible based on implied consent laws enacted by their state legislatures. Two state supreme courts recently rejected such arguments, holding that implied consent statutes in Nevada and Idaho that do not allow a driver to withdraw consent to testing are unconstitutional. That reasoning might be applied to invalidate the provision of North Carolina’s implied consent law that categorically allows the warrantless testing of unconscious drivers.
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.
Courts across the country continue to wrestle with whether and how the Supreme Court’s opinion in Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013), affects the lawfulness of testing carried out pursuant to a state’s implied consent laws. McNeely held, in the context of a blood draw performed over a defendant’s objection, that the natural dissipation of alcohol in a person’s bloodstream does not constitute an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement.
Post-McNeely, many defendants have challenged the constitutionality of testing carried out pursuant to implied consent statutes. Such statutes generally require that defendants charged with impaired driving offenses submit to breath or blood tests or else forfeit their driving privileges. Defendants have questioned whether such testing, which amounts to a search under the Fourth Amendment, may be routinely required without a warrant.
A series of earlier posts about McNeely’s impact discussed opinions from state supreme courts in Arizona and Minnesota holding that, independent of the state’s implied consent law, the Fourth Amendment required an arrestee’s consent to be voluntary to justify a warrantless blood draw.
Implied Consent Provisions Upheld
While litigation over this issue continues at a furious pace, my research has not revealed a single appellate court opinion ruling unconstitutional a state’s implied consent laws. Among the statutory provisions that have been upheld are those that criminalize a suspect’s refusal to consent to a blood or breath test. See, e.g., State v. Bernard, 2014 WL 996945 (Minn. Ct. App. March 17, 2014).
On the other hand, some courts in states with statutes that require blood tests of certain defendants (such as repeat impaired drivers) and that do not allow suspects to refuse testing have discontinued their reliance on such statutes as authorizing the involuntary searches. See Sutherland v. State, 2014 WL 1370118 (Tex. App. April 7, 2014); State v. Villarreal, 2014 WL 1257150 (Jan. 23, 2014); see also Lorelai Laird, SCOTUS ruling could complicate laws on impaired driving, ABA Journal (April 1, 2014) (discussing Washington state prosecutors’ decision not to rely on evidence from such mandatory blood draws after McNeely). In light of McNeely, those courts have evaluated blood draws mandated by statute under traditional Fourth Amendment standards. If they are carried out without a warrant, a recognized warrant exception, such as exigent circumstances, must apply.
Two recent opinions—one from the appellate division of the Superior Court in California and the other from the Hawaii Court of Appeals—uphold implied consent provisions for different reasons. The California court relied on the theory that implied consent is voluntary consent under the Fourth Amendment, a notion that I (wrongly) thought was unlikely to survive McNeely, while the Hawaii court applied a reasonableness analysis.
Consent Theory Lives On
In People v. Harris, 2014 WL 1512444 (Cal. App. Dep’t Super. Ct. Apr. 11, 2014) (certified for partial publication), the appellate division of the California Superior Court determined that a suspect’s cooperation with the implied consent law constitutes Fourth Amendment consent. The court noted that before McNeely, no California court had considered the question of whether chemical tests taken pursuant to the state’s implied consent law were justifiable under the Fourth Amendment as consent searches. That’s because courts relied upon Schmerber v. California, 384 U.S. 757 (1966), as establishing that an exigency existed in every impaired driving case that excused the warrant requirement. McNeely’s determination that there was no such per se exigency forced the court to reconsider that analysis. Nevertheless, the Harris court had no trouble concluding that “implied consent is legally effective consent.” The court characterized the consent as having been “given in advance and in exchange for a related benefit,” trotting out the well-worn theory of driving being a privilege and not a right. “It follows,” said the court, “that motorists freely consent for Fourth Amendment purposes to chemical testing in accordance with the terms of the implied consent law, in exchange for the privilege of using the roads. . . . The fact that there are penalties for a refusal to cooperate with such testing upon arrest does not render the consent illusory or conclusive.” When a driver cooperates with a chemical test pursuant to the implied consent law, he or she has given “real and voluntary consent,” the court reasoned. Any testing of a driver who “withdraw[s] his consent,” in contrast, must comport with the Fourth Amendment’s warrant requirement as interpreted in McNeely.
In State v. Yong Shik Won, 2014 WL 1270615 (Haw. Ct. App. Mar. 28, 2014), the Hawaii court of appeals considered whether provisions of the state’s implied consent statutes authorizing breath testing of drivers arrested for impaired driving and criminalizing the refusal to submit to such testing were constitutional. The Hawaii court first reviewed the reasonableness analysis employed by courts to evaluate the constitutionality of searches carried out for certain special government needs, citing, for example Maryland v. King, ___ U.S. ___, 133 S. Ct. 1958 (2013) (upholding as constitutional the taking and analyzing of a cheek swab of a person’s DNA when the person is arrested and detained for a serious offense). This analysis contrasts with that typically applied to searches carried out for general law enforcement purposes, which considers whether the officer procured a warrant or an established exception to the warrant requirement applied. The court then turned to the more traditional analysis of exceptions to the warrant requirement, among them the consent exception, stating that “by driving on a public road, the driver has consent to testing.” The court ultimately melded the approaches, concluding that “[i]n balancing the government’s interest against the individual’s privacy interest . . . obtaining a driver’s breath test under the procedures set forth in the implied consent statute is reasonable and does not violate the Fourth Amendment.” The reasonableness approach of the Hawaii court strikes me as the most, well, reasonable, way to analyze the constitutionality of implied consent. It avoids the problem of evaluating the voluntariness of consent from an impaired person who has just been told that his or her license will be revoked if he does not submit to testing and of pretending that some advance consent occurred before the person took to the roadways.
North Carolina Courts Yet to Weigh In
Our state appellate courts have not yet considered the constitutionality of the state’s implied consent laws post-McNeely. I don’t know whether the issue is arising often in our trial courts. Readers may be able to enlighten us on that front.
The first two posts in this series (here and here) discussed opinions from state supreme courts in Arizona and Minnesota considering, post-McNeely v. Missouri, 133 S.Ct. 1552 (2013), whether a suspect’s submission to implied consent testing was voluntary consent within the meaning of the Fourth Amendment. This post discusses why that sort of analysis is unsatisfactory and describes other potential framework.
Why consent doesn’t work. If consent is the justification for allowing testing under implied consent laws, then states may procure—upon threat of license revocation, use of the refusal as evidence, and, in some cases, criminal prosecution—a suspect’s acquiescence to a search that, were the person to refuse, would only be lawful if carried out pursuant to a warrant or if exigent circumstances existed. Though the Minnesota Supreme Court in State v. Brooks, __ N.W.2d __, 2013 WL 5731811 (Minn. October 23, 2013), attempted to distinguish Bumper v. North Carolina, 391 U.S. 543 (1968), Brooks’ analysis of consent doesn’t materially differ from that rejected by the Bumper court. In essence, Brooks reasons that the suspect consented to a search that would have been lawful with a warrant.
The fiction of advance, implied consent (which both Brooks and State v. Butler, 302P.3d 609 (Ariz. 2013) (en banc) rejected) is even more problematic. If states can condition the privilege to drive on the relinquishment of constitutional rights, then why require reasonable suspicion for stops? Couldn’t drivers impliedly consent to stops by roving patrols regardless of Delaware v. Prouse, 440 U.S. 648 (1979)? Obviously, they could not. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(l) (5th ed. 2012) [hereinafter Fourth Amendment] (“Consent ‘in any meaningful sense’ cannot be said to exist merely because a person (a) knows that an official intrusion into his privacy is contemplated if he does a certain thing, and then (b) proceeds to do that thing. Were it otherwise, the police could utilize the implied consent theory to subject everyone on the streets after 11 p.m.to a search merely by making public announcements in the press, radio and television that such searches would be undertaken.”).
Practical Problems. The second problem with evaluating the voluntariness of a suspect’s consent is a practical one. Persons requested to submit to implied consent testing are thought to be impaired to varying degrees. Determining whether an individual was so impaired as to render his consent not free and voluntary could prove difficult and would, at a minimum, require case-by-case evaluation by officers. Indeed, one of the advantages of a statute purporting to imply consent in advance is avoiding “the need for explicit consent from a heavily intoxicated person or one dazed—or indeed unconscious—from a crash.” See Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for Intoxication, 45 J. Crim. L. Criminology & Police Sci. 541, 543 (1954-55). Thus, a voluntariness standard would appear to require, notwithstanding statutory authorization to the contrary, see G.S. 20-16.2(b) (providing that an unconscious person may be tested without notification of rights or request), that a warrant be obtained before chemical testing of an unconscious suspect could be performed.
If free and voluntary consent is the test, the concurring justice in Butler likely is correct that the safest course of action for the police is to procure a warrant in advance of every blood draw.
A third way. There is another possible framework for analyzing implied consent, which avoids some of these problems.
In his treatise on the Fourth Amendment, Professor LaFave suggests that the better approach is to ask whether the search meets the reasonableness requirement of the Fourth Amendment, “an inquiry in which it will . . . be relevant that advance notice was given of the circumstances” in which a search might occur. LaFave, Fourth Amendment, at § 8.2(l). He explains:
If the answer to that question is no, a statute may not produce a contrary result via the fiction of implied consent. As one court aptly put it: “‘To hold that the legislature could nonetheless pass laws stating that a person ‘impliedly’ consents to search under certain circumstances where a search would otherwise be unlawful would be to condone an unconstitutional bypassing of the Fourth Amendment.’”
Without question, LaFave’s analysis would require courts to extend the reasonableness analysis applied to so-called “special needs” searches, intrusions justified by purposes divorced from the State’s general interest in law enforcement, to searches in implied consent cases. See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment) (“Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers.”)
Assuming, however, that courts would so extend the law in this circumstance, searches carried out pursuant to North Carolina’s implied consent statutes might be deemed reasonable in light of (1) the government’s compelling interest in eliminating the threat impaired drivers pose to public safety, (2) the safe, relatively painless, and commonplace methods of testing employed, (3) the requirement of probable cause to believe the person committed an alcohol-related offense and (4) the advance notice provided by the implied consent laws themselves.
As I noted in the last post, it is unclear whether our state supreme court will be called upon or inclined to reconsider its view of implied consent testing. In the interim, if you have thoughts about the legal theory of implied consent or know of litigation percolating on this front in our state, I’d love to hear from you.