The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.
Tag Archives: Missouri v. McNeely
Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?
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 →
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 →
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 court of appeals decided its first post-Missouri v. McNeely alcohol exigency case yesterday. The court in State v. Dahlquist determined that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Thus, the Dahlquist court held that the trial court properly denied the defendant’s motion to suppress as the warrantless withdrawal of the defendant’s blood at a nearby hospital over his objection was lawful. What’s most interesting about the case is not its holding, presaged by State v. Fletcher, 202 N.C. App. 107 (2010), and McNeely itself, but instead its dicta. The court stated that while it found an exigency in this case, officers should consider amending their post-arrest procedures in future cases in two respects. First, where the technology is available, they should testify in support of search warrants by videoconference as authorized by G.S. 15A-245. Second, rather than estimating wait times based on past experience, officers should call magistrates’ offices and hospitals to obtain current information about wait times.
Facts. Dahlquist was a relatively routine impaired driving case. The defendant was stopped at a DWI checkpoint in the Charlotte area in the early morning hours. He smelled strongly of alcohol, admitted to drinking, and failed several field sobriety tests. He was arrested for DWI and taken to a Blood Alcohol Testing (“BAT”) mobile for purposes for a breath test. He refused to submit to the test. The officer then took the defendant to Mercy Hospital where his blood was drawn without his consent.
Procedural history. The defendant moved in superior court to suppress the evidence of his alcohol concentration obtained from the warrantless withdrawal of his blood. The superior court denied the motion, and the jury found him guilty of driving while impaired. The defendant appealed the denial of his motion to suppress.
Court of appeals opinion. The appellate court noted the Supreme Court’s holding 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. As a result, whether an exigency exists must be determined case by case based on a totality of the circumstances. Thus, the question before the Dahlquist court was whether the circumstances in that case gave rise to an exigency sufficient to justify a warrantless search.
As previously noted, the trial court concluded that they did, and the court of appeals agreed. The officer took the defendant directly to the hospital because “he knew that over time the amount of alcohol in blood dissipates.” Slip op. at 7. The officer also “knew from his years of experience” that the hospital was fifteen minutes away and that he could obtain a sample of the defendant’s blood from hospital staff within an hour after arriving. Id. The officer “surmised from his past experience that, on a weekend night, it would take between four and five hours to obtain a blood sample if he first had to travel to the [magistrate’s office] to obtain a search warrant.” Slip op. at 8.
Dicta. After concluding that the trial court properly denied the defendant’s motion to suppress, the court of appeals elected to “elaborate on one point” related to the procedure for obtaining a warrant, namely “advances in technology,” a topic also addressed in McNeely. The Supreme Court in McNeely noted that federal magistrate judges may issue warrants based on information communicated by telephone or other electronic means and that most states allow police or prosecutors to apply for search warrants remotely using the telephone, video-conferencing and electronic communication. The Dahlquist court noted that G.S. 15A-245(a) was amended in 2005 to allow a search warrant to be issued based on audiovisual transmission of oral testimony under oath or affirmation from a sworn law enforcement officer to the issuing official. (Before this procedure may be used, the senior resident superior court judge and chief district court judge must obtain the approval of the Administrative Office of the Courts.) Yet the officer in Dahlquist assumed he had only two options: (1) travel to the magistrate’s office and risk the loss of evidence; or (2) proceed to the hospital without a warrant. The court encouraged officers to consider the option of testifying in support of search warrants by videoconference.
As noted earlier, the court also said that the “better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.”
Practical concerns. When G.S. 15A-245 was amended in 2005 to allow officers to testify in support of search warrants by videoconference, my colleague John Rubin pointed out that that the act amending the statute, S.L. 2005-334, did not “address various implementation issues—for example, how the testimony will be memorialized and served.” John Rubin, Criminal Law and Procedure, North Carolina Legislation 2005, at 85 (Martha Harris, ed. 2006) (noting that the federal rules require that testimony be recorded, transcribed and certified as accurate by the issuing official; in addition, the issuing official must prepare an original warrant and the applicant must prepare a duplicate warrant for service). Whether as a result of these issues or the lack of available technology, my sense is that few, if any jurisdictions, use this procedure.
Bottom line. Police departments, in consultation with the courts in their districts, would be wise to consider whether using video-conference testimony from officers would expedite the process of obtaining a search warrant in impaired driving cases. While the Dahlquist court determined that the time required for the arresting officer to apply for the warrant in person created an exigency in that case, its commentary indicates that the court may, in a future case, factor the availability of videoconferencing technology into its totality of the circumstances analysis.
Moreover, officers shouldn’t guess at wait times when there is a practical alternative such as calling ahead. Dahlquist strongly hints that such estimates, even when based on experience, may weigh less heavily in the State’s favor in subsequent cases.