Chapter 1: Implied Consent Laws: Theory and Procedure

Chapter 1:

Implied Consent Laws: Theory and Procedure

Shea Denning

DRAFT VERSION: January 17, 2014

Contents

Chapter 1: ............................................................................................................................ 1

Implied Consent Laws: Theory and Procedure ................................................................... 1

I. Introduction ................................................................................................................ 1

II. Implied Consent Testing ............................................................................................. 2

A. Implied Consent Rights ............................................................................................ 3

B. Administering a Chemical Analysis .......................................................................... 5

1. Breath Tests ...................................................................................................... 6

2. Refusal .............................................................................................................. 7

3. Blood or Urine Tests ......................................................................................... 8

4. Alcohol Screening Tests .................................................................................... 9

5. Pre-arrest Testing ........................................................................................... 11

6. Affidavit and Revocation Report .................................................................... 11

III. Theory of Implied Consent ........................................................................................ 11

A. Implied Consent Testing and the Fourth Amendment .......................................... 12

B. Statutory Right to Refuse ....................................................................................... 17

1. Compelled Testing after Refusal..................................................................... 18

2. Missouri v. McNeely and the Theory of Implied Consent .............................. 21

3. Fifth Amendment and Refusals ...................................................................... 25

I. Introduction

Driving while impaired and several related criminal offenses involving the consumption of

alcohol or other impairing substances are categorized under North Carolina law as implied

consent offenses. When a person is charged with or arrested for an implied consent offense, the

officer may require the person to undergo chemical testing for purposes of detecting the

presence of alcohol and other impairing substances and measuring their concentration. If a

person refuses to submit to such testing, the person’s license may be administratively revoked

and the refusal may be considered as substantive evidence of his or her guilt of the underlying

criminal charges. This chapter reviews the statutory scheme governing the chemical analysis of a

person’s breath or other bodily fluids in an implied consent case as well as the legal theory of

implied consent.

II. Implied Consent Testing

The following offenses are categorized as implied consent offenses

1. Impaired driving (G.S. 20-138.1).

2. Impaired driving in a commercial vehicle (G.S. 20-138.2).

3. Habitual impaired driving (G.S. 20-138.5).

4. Death by vehicle or serious injury by vehicle (G.S. 20-141.4).

5. First- or second-degree murder (G.S. 14-17) or involuntary manslaughter (G.S. 14-18) when

based on impaired driving.

6. Driving by a person less than 21 years old after consuming alcohol or drugs (G.S. 20-138.3).

7. Violating no-alcohol condition of limited driving privilege (G.S. 20-179.3(j)).

8. Impaired instruction (G.S. 20-12.1).

9. Operating commercial motor vehicle after consuming alcohol (G.S. 20-138.2A).

10. Operating school bus, school activity bus, or child care vehicle after consuming alcohol

(G.S. 20-138.2B).

11. Transporting an open container of alcohol (G.S. 20-138.7(a)).

12. Driving in violation of restriction requiring ignition interlock (G.S. 20-17.8(f)).

When a person is arrested for an implied consent offense, or if criminal process has been issued,

including a citation, a law enforcement officer who has reasonable grounds to believe that the

person charged has committed the offense may require that person to undergo chemical

analysis.

The officer is authorized to transport the accused to any location within North Carolina

for the purposes of administering one or more chemical analyses.

North Carolina law defines “chemical analysis” as a test or tests of the breath, blood, or other

bodily fluid or substance of a person performed in compliance with statutory requirements to

determine the person’s blood alcohol level or the presence of an impairing substance.

The

concentration of alcohol in a person is expressed either as grams of alcohol per 100 milliliters of

See North Carolina General Statutes (hereinafter G.S.) 20-16.2(a1); -4.01(24a).

G.S. 20-16.2(a).

. Id. § 20-38.3(2).

. Id. § 20-4.01(3a).

blood or as grams of alcohol per 210 liters of breath.

The results of a defendant’s alcohol

concentration determined by a chemical analysis are reported to the hundredths, with any

result between hundredths reported to the next-lower hundredth.

While any competent evidence of a defendant’s alcohol concentration that is lawfully obtained

may be introduced in a defendant’s trial on implied consent charges,

the State enjoys several

advantages when it seeks to admit the results of a chemical analysis performed pursuant to G.S.

20-139.1. First, such results are deemed admissible by statute

without the need for further

evidence as to the scientific reliability of the instrument used or the validity of the underlying

scientific principles.

Second, the results of a chemical analysis are “deemed sufficient evidence

to prove a person’s alcohol concentration.”

This means that, in the context of a case in which

the defendant’s alcohol concentration as reported by a chemical analysis is 0.08 or more, the

introduction of the results of the chemical analysis satisfies the State’s burden to present prima

facie evidence of impairment.

A. Implied Consent Rights

Before any type of chemical analysis is administered, a person charged with an implied consent

offense must be taken before a chemical analyst authorized to administer a test of the person’s

breath or a law enforcement officer authorized to administer a chemical analysis of the breath.

The term “chemical analyst” is defined as a person granted a permit by the Department of

Health and Human Services (DHHS) under G.S. 20-139.1 to perform such analyses.

The

. Id. § 20-4.01(1b). The alcohol concentration for breath tests is based on an assumption that a breath

alcohol concentration of 0.10 grams per 210 liters of breath is equivalent to a blood alcohol concentration

of .10 percent, or, in other words, a 2100 to 1 blood-breath ratio. See State v. Cothran, 120 N.C. App. 633,

635 (1995).

. G.S. 20-4.01(1b).

See Id. § 20-139.1(a); see also State v. Davis, 142 N.C. App. 81, 87 (2001) (holding that results of blood

and urine tests obtained pursuant to search warrant issued after defendant refused blood test were

properly admitted at defendant’s impaired driving trial, as “the General Assembly does not limit the

admissibility of competent evidence lawfully obtained”).

G.S. 20-139.1(a), (b).

See State v. Powell, 279 N.C. 608 (1971); State v. George, 77 N.C. App. 470 (1985).

See G.S. 20-138.1(a)(2)(“The results of a chemical analysis shall be deemed sufficient evidence to prove

a person’s alcohol concentration.”).

See State v. Narron, 193 N.C. App. 76, 84 (2008) (construing G.S. 20-138.1(a)(2) as providing that the

results of a chemical analysis constitute prima facie evidence of the defendant’s alcohol concentration,

thereby authorizing the jury to find that the report adequately proves the defendant’s alcohol

concentration).

G.S. 20-16.2(a).

Id. § 20-4.01(3b). The requirements for obtaining a permit to perform an analysis of a person’s breath

to determine his or her alcohol concentration are set forth in Title 10A of the North Carolina

Administrative Code (hereinafter N.C.A.C), Subchapter 41B, section .0301. For purposes of determining

whether the person performing the analysis had a current permit, the court or administrative agency

“shall take judicial notice” of the lists of persons possessing permits. G.S. 20-139.1(b), (c).

chemical analyst must first inform the person charged as to, and provide that person with notice

in writing of, the following rights:

(1) You have been charged with an implied-consent offense. Under the implied-consent

law, you can refuse any test, but your drivers license will be revoked for one year and

could be revoked for a longer period of time under certain circumstances, and an officer

can compel you to be tested under other laws.

(2) [repealed, 2006]

(3) The test results, or the fact of your refusal, will be admissible in evidence at trial.

(4) Your driving privilege will be revoked immediately for at least 30 days if you refuse any

test or if the test result is 0.08 or more, 0.04 or more if you were driving a commercial

vehicle, or 0.01 or more if you are under the age of 21.

(5) After you are released, you may seek your own test in addition to this test.

(6) You may call an attorney for advice and select a witness to view the testing procedures

remaining after the witness arrives, but the testing may not be delayed for these

purposes longer than 30 minutes from the time you are notified of these rights. You

must take the test at the end of 30 minutes even if you have not contacted an attorney

or your witness has not arrived.

These rights are printed on a form created by the DHHS.

There is a place on the form for the

signature of the person charged. Normally, the notice of rights is read to and a copy handed to a

defendant, who then signs the form. Sometimes, however, handing the form to a defendant for

his or her signature is not possible due to the defendant’s condition. One such circumstance

arose in State v. Lovett,

a case in which the defendant’s hands were strapped down in the

emergency room and needles for intravenous fluids were in both arms. The chemical analyst in

Lovett placed the written rights form with defendant's emergency room chart. The North

Carolina Court of Appeals determined that this “was tantamount to ‘giving’ defendant notice in

writing.”

Noting that “in light of the treatment defendant was receiving for his injuries, there

was effectively no other means by which the notice could have been given to him,” the court

determined that defendant clearly was informed of his rights.

The State does not have to prove that the defendant read the notice of rights form,

nor,

apparently, that he or she understood the rights.

The court of appeals in State v. Carpenter

. Id. § 20-16.2(a). The North Carolina Supreme Court in State v. Howren, 312 N.C. 454 (1984), held that

the administration of a chemical analysis to determine if a driver is impaired by an impairing substance is

not a critical stage of the prosecution; thus, the defendant has no Sixth Amendment right to have counsel

present before deciding whether to take or refuse a breath test and is not entitled more than the thirty

minutes provided in G.S. 20-16.2 to secure a lawyer.

The form is designated DHHS 4081.

119 N.C. App. 689 (1995).

Id. at 693.

Id.

State v. Carpenter, 34 N.C. App. 742 (1977).

G.S. 20-16.2 is designed to “to provide scientific evidence of intoxication not only for the purpose of

convicting the guilty and removing them from the public highways for the safety of others, but also to

determined that a chemical analyst fully complied with the advisement requirements in G.S. 20-

16.2(a) by orally advising the defendant of his implied consent rights and placing the required

information in writing before the defendant who had an opportunity to read the information.

Were the rule otherwise, the court explained, “any belligerent or uncooperative defendant”

could defeat evidence of test results “by merely refusing the read the information that was

placed before him.”

If a law enforcement officer has reasonable grounds to believe that a person has committed an

implied consent offense, and the person is unconscious or otherwise in a condition that makes

the person incapable of refusing the test, the officer may direct the taking of a blood sample or

the administration of any other type of chemical analysis that may be effectively performed.

There is no statutory requirement that the chemical analyst inform such a person of the implied

consent rights in G.S. 20-16.2(a) or that the person be asked to submit to the analysis pursuant

to G.S. 20-16.2(c).

B. Administering a Chemical Analysis

The law enforcement officer or the chemical analyst designates the type of test or tests to be

administered, that is, a test of blood, breath, or urine.

The officer or chemical analyst then asks

the person to submit to the designated type of chemical analysis.

If the person charged

protect the innocent by eliminating mistakes from objective observation such as a driver who has the

odor of alcohol on his breath when in fact his consumption is little or those who appear to be intoxicated

but actually suffer from some unrelated cause.” Seders v. Powell, 298 N.C. 453, 464 (1979). The warnings

“ensure[] civil cooperation in providing scientific evidence and avoid[] incidents of violence in testing by

force.” Id. at 465. Given that notice is provided to secure submission to a chemical analysis rather than to

procure a knowing, voluntary and intelligent waiver of rights, the statutory purposes arguably are met

when the person submits to testing, regardless of whether the person knew of the right to refuse testing.

See Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830, 831 (Minn. App. 1984) (rejecting the

argument of a petitioner who “willingly blew into the testing machine” that he had a statutory right to

have the implied consent advisory read to him in Japanese and finding that he “understood he was being

asked to take the test,” which was the only understanding required); Martinez v. Peterson, 322 N.W.2d

386, 388 (Neb. 1982) (holding that person is required to understand only that he or she has been asked to

take a test and that “[t]here is no defense to refusal that [the person] does not understand the

consequences of refusal or is not able to make a reasonable judgment as to what course of action to

take”); cf. Sermons v. Peters, 51 N.C. App. 147, 150 (1981) (explaining that officers had no duty to explain

the statutory rights relative to the granting of a limited driving privilege as “[w]hether or not the

petitioner would have taken the breathalyzer test had he been aware of the law is irrelevant”).

34 N.C. App. 742 (1977).

Id. at 744.

Id.

. G.S. 20-16.2(b).

. Id.

. Id. § 20-16.2(c). Tests of urine are the only type of test of “other bodily fluid[s] or substances[s]”

currently conducted pursuant to the implied consent procedures.

. Id.

“willfully refuses to submit to that chemical analysis, none may be given under [G.S. 20-16.2].”

The refusal does not, however, preclude testing pursuant to other applicable procedures of

law,

such as pursuant to a search warrant or the exigency exception to the search warrant

requirement of the Fourth Amendment to the United States Constitution.

1. Breath Tests

Chemical analyses are most frequently obtained through utilization of a breath-testing

instrument.

DHHS approves breath-testing instruments on the basis of results of evaluations

by the department’s Forensic Tests for Alcohol Branch.

The breath-testing instrument

currently authorized and used is the Intoximeter, Model Intox EC/IR II.

The operational

procedures for the instrument are prescribed by statute and administrative regulation.

The

person being tested must be observed to ensure that he or she has not ingested alcohol or other

fluids or regurgitated, vomited, eaten, or smoked in the fifteen minutes before the collection of

a breath specimen.

At least two sequential breath samples must be tested.

The results of the

chemical analysis of all breath samples is admissible in evidence in any court or administrative

Id.

. Id.; see also State v. Davis, 142 N.C. App. 81, 87 (2001) (holding that results of blood and urine tests

obtained pursuant to search warrant issued after defendant refused blood test were properly admitted at

defendant’s impaired driving trial, as “the General Assembly does not limit the admissibility of competent

evidence lawfully obtained”).

. See G.S. 20-139.1(d1) (providing that if a person refuses to submit to a test, a law enforcement officer

with probable cause may, without a court order, compel the person to provide blood or urine for analysis

if the officer reasonably believes that the delay necessary to obtain a court order would result in the

dissipation of the percentage of alcohol in the person’s blood or urine) and State v. Fletcher, 202 N.C.

App. 107 (2010) (finding exigent circumstances warranting blood draw and upholding G.S. 20-139.1 as

constitutional); see also Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013) (plurality opinion)

(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 over a defendant’s

objection without a warrant); Schmerber v. California, 384 U.S. 757 (1966) (concluding that an officer’s

warrantless taking of the defendant’s blood incident to his arrest for driving while impaired was

constitutional under the Fourth Amendment where the officer reasonably believed he was confronted

with an emergency in which the delay necessary to obtain a warrant threatened the dissipation of alcohol

in the defendant’s blood and where the blood was taken in a hospital environment according to accepted

medical practices); State v. Steimel, 921 A.2d 378 (N.H. 2007) (upholding as constitutional warrantless

blood draw to detect drugs incident to defendant’s arrest for aggravated driving while intoxicated and

refusing to distinguish between metabolization of alcohol and controlled drugs for purposes of applying

the Fourth Amendment’s exigency exception); People v. Ritchie, 181 Cal. Rptr. 773 (Cal. Ct. App. 1982)

(upholding as constitutional warrantless blood draw to detect drugs incident to defendant’s arrest for

driving under the influence of drugs).

. See 10A N.C.A.C 41B, § .0101(2); see also G.S. 20-139.1 (chemical analysis of the breath administered

pursuant to the implied consent law is admissible in court if it is performed in accordance with DHHS rules

and the person performing the analysis had a current permit issued by DHHS authorizing him or her to

perform a breath test using the type of instrument employed).

. 10A N.C.A.C. 41B, § .0313.

. Id. § .0322.

. G.S. 20-139.1; 10A N.C.A.C. 41B, § .0322.

. 10 N.C.A.C. 41B, § .0101(6).

. G.S. 20-139.1(b3).

hearing if the test results from any two consecutively collected breath samples do not differ

from each other by an alcohol concentration of more than 0.02.

Only the lower of the two test

results of the consecutively administered tests may be used to prove a particular alcohol

concentration.

A person’s refusal to give the sequential breath samples necessary to constitute

a valid chemical analysis amounts to a refusal to submit to testing under G.S. 20-16.2(c).

person’s refusal to give the second or subsequent breath sample renders the result of the first

breath sample, or the result of the sample providing the lowest alcohol concentration if more

than one breath sample is provided, admissible in any judicial or administrative hearing for any

relevant purpose.

DHHS is required to perform preventative maintenance on breath-testing instruments used for

chemical analysis.

A court or administrative agency “shall take judicial notice” of the

Department’s preventative maintenance records.

Breath test results are inadmissible if a

defendant objects to their introduction and demonstrates that preventative maintenance

procedures required by DHHS regulations had not been performed within the time limits

required by those regulations.

Regulations for the breath testing instrument currently in use,

the Intoximeter: Intox EC/IR II, require that preventative maintenance be performed at least

once every four months.

These instruments, unlike their predecessors, use ethanol gas

canisters to provide a control sample for testing, rather than an alcoholic breath simulator.

Ethanol gas canisters must be changed before their expiration date.

A signed original of the

preventive maintenance record must be kept on file for at least three years.

2. Refusal

A person’s willful refusal to submit to a chemical analysis may, depending on other factors,

result in the revocation of his or her driver’s license for a period of twelve months—in addition

to resulting in the immediate civil revocation of his or her driver’s license for a period of at least

thirty days.

A refusal is “ ‘the declination of a request or demand, or the omission to comply

. Id.; see also 10A N.C.A.C. 41B, § .0322 (directing the collection of two breath samples and providing

that if the alcohol concentrations differ by more than 0.02, a third or fourth breath sample shall be

collected).

. G.S. 20-139.1(b3).

. Id.

Id. § 20-139.1(b2).

Id.

10A N.C.A.C. 41B § .0323.

It is possible to use alcoholic breath simulator solution with these instruments, though that is not done

in practice.

10A N.C.A.C. 41B § .0323.

Id.

. G.S. 20-16.2(d); -16.5.

with some requirement of law, as the result of a positive intention to disobey.’ ”

A willful

refusal occurs when a person (1) is aware that he or she has a choice to take or refuse a test, (2)

is aware of the time limit within which he or she must take the test, and (3) voluntarily elects

not to take the test or knowingly permits the prescribed thirty-minute time limit to expire

before electing to take the test.

In essence, a willful refusal is a refusal that occurs after the

defendant is advised of his or her implied consent rights and is asked to submit to a chemical

analysis.

3. Blood or Urine Tests

At a law enforcement officer’s discretion, a person may be asked to submit to a chemical

analysis of his or her blood or urine in addition to or in lieu of a chemical analysis of his or her

breath.

If a subsequent chemical analysis is requested, the person must again be advised of

the implied consent rights under G.S. 20-16.2(a).

When a law enforcement officer specifies a

blood or urine test as the type of chemical analysis to be conducted, a physician, registered

nurse, emergency medical technician, or other qualified person must withdraw the blood

sample or obtain the urine sample.

If the person withdrawing the blood requests written

confirmation of the officer’s request, the officer must furnish that request before the blood is

drawn.

A medical provider may 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 pursuant to his

or her request. If the officer does so, the medical provider must provide the written justification

at the time of the refusal.

A person’s willful refusal to submit to a blood or urine test

constitutes a willful refusal to submit to testing under G.S. 20-16.2.

. Joyner v. Garrett, 279 N.C. 226, 233 (1971) (quoting B

LACK

’

ICTIONARY

(4th ed. 1951)).

. Etheridge v. Peters, 301 N.C. 76, 81 (1980).

. See, e.g., Rice v. Peters, 48 N.C. App. 697, 700–01 (1980) (holding that purpose of refusal-revocation

statute is “fulfilled when the petitioner is given the option to submit or refuse to submit to a breathalyzer

test and his decision is made after having been advised of his rights in a manner provided by the statute”).

. G.S. 20-139.1(b5).

. Id.

. Id. § 20-139.1(c) (applicable when officer seeks withdrawal of blood from a consenting defendant or

from a defendant who is unconscious or otherwise incapable of refusal; likely also applicable to

withdrawal of blood in implied consent case pursuant to search warrant), (d2) (applicable to

nonconsensual warrantless blood draws).

G.S. 20-139.1(c), (d2).

Id. 20-139.1(c).

Id. It is unclear whether a medical provider who refuses to withdraw blood upon an officer’s request

pursuant to G.S. 20-139.1(c) has committed a crime. The most likely criminal charge is resisting, delaying,

or obstructing an officer in violation of G.S. 14-233. For an analysis of whether a medical provider’s refusal

to assist an officer in light of this statutory duty amounts to resisting, delaying or obstructing an officer,

see Shea Denning, The Requirement that Medical Providers Withdraw Blood in Implied Consent Cases

(UNC School of Government, November 20, 2012), http://nccriminallaw.sog.unc.edu/?p=3975.

. Id. § 20-139.1(b5).

To qualify as a “chemical analysis,” and thus to be admissible under G.S. 20-139.1(a), (c1), blood

and urine specimens procured under the state’s implied consent laws must be analyzed by an

analyst who has a DHHS permit. Most of these analyses are blood analyses and are performed at

the North Carolina State Crime laboratory. There are, however, other laboratories in the state

that are approved by the Department of Health and Human Services to conduct chemical

analyses. Among them is the Charlotte-Mecklenburg Police Department Laboratory.

The

results must be certified by the analyst who performed the testing.

A person charged with any of the death or serious injury by vehicle offenses codified in G.S. 20-

141.4

must be requested to provide a blood sample in addition to or in lieu of a chemical

analysis of his or her breath—unless the breath sample shows an alcohol concentration of 0.08

or more.

As with other defendants, such persons must again be advised of their implied

consent rights before being asked to submit to a chemical analysis of their blood. If a person

charged with death or serious injury by vehicle willfully refuses to provide a blood sample, then

a law enforcement officer with probable cause to believe that the offense involved impaired

driving or was an alcohol-related implied consent offense must seek a warrant to obtain a blood

sample.

4. Alcohol Screening Tests

A law enforcement officer may require a driver to submit to an alcohol screening test within a

relevant time after the driving if the officer has (1) reasonable grounds to believe that the driver

had consumed alcohol and has committed a moving traffic violation or been involved in an

accident or collision; or (2) an articulable and reasonable suspicion that the driver has

committed an implied consent offense and the driver has been lawfully stopped or “lawfully

encountered by the officer in the course” of his duties.

Id. § 20-139.1(c1).

Id.

With the exception of the offense of misdemeanor death by vehicle, all of the offenses codified in G.S.

20-141.4 contain, as an element, impaired driving in violation of G.S. 20-138.1 or G.S. 20-138.2 (impaired

driving in a commercial vehicle). Misdemeanor death by vehicle, in contrast, consists of (1) unintentionally

causing the death of another person (2) while engaged in the operation of any state law or local ordinance

applying to the operation or use of a vehicle or to the regulation of traffic—other than G.S. 20-138.1—

that (3) proximately causes the death. G.S. 20-141.4(a2). Notwithstanding its lack of relationship to

alcohol-related offenses, misdemeanor death by vehicle also is classified as an implied consent offense.

This requirement, which is codified in the “subsequent test[]” provisions of G.S. 20-139.1(b5) appears to

apply only if the law enforcement officer initially exercises his or her discretion under G.S. 20-16.2(a) to

obtain a chemical analysis of the person.

G.S. 20-139.1(b5) (further providing that the failure to obtain a blood sample shall not be grounds for

the dismissal of a charge). See supra note 30 for a further discussion of these statutory provisions as they

related to the Fourth Amendment’s prohibition on unreasonable searches.

G.S. 20-16.3(a). The statute specifies that requiring a driver to submit to an alcohol screening test in

accordance with its provisions does not, by itself, constitute an arrest.

DHHS approves alcohol screening devices and adopts regulations governing the manner of their

use.

To be valid, alcohol screening tests must be conducted in accordance with applicable

regulations.

Even then, the results of such tests are of limited evidentiary value. A law

enforcement officer may use the fact that a driver showed a positive or negative result on an

alcohol screening test in determining if there are reasonable grounds (in other words, probable

cause) for determining that the driver committed an implied consent offense or that the driver

had consumed alcohol and the driver had in his or her body previously consumed alcohol.

The

result may not be used to prove a particular alcohol concentration.

Given that a result is

positive at an alcohol concentration as low as 0.01, a positive result on an alcohol screening test,

without more, likely does not establish reasonable grounds to believe that a person is

impaired.

Similarly, the fact that a result was positive or negative, but not the actual result, is

admissible in court or may be used by an administrative agency in determining reasonable

grounds for the determinations referenced above.

Negative results on an alcohol screening

test may be used in factually appropriate cases by the officer, a court, or an administrative

agency in determining whether a person’s alleged impairment is caused by an impairing

substance other than alcohol.

A different rule governs the use of alcohol screening test evidence to establish a violation of the

various statutes

that prohibit driving while consuming alcohol or while alcohol remains in the

person’s body.

In such cases, the results of an alcohol screening test or the driver’s refusal to

submit to an alcohol screening test, may be used by a law enforcement officer, a court, or an

administrative agency in determining if alcohol was present in the driver’s body.

Thus, not only

are the numerical results admissible in such cases, but they also may be used to establish the

Id. § 20-16.3(b).

Id. § 20-16.3(c); but see State v. Rogers, 124 N.C. App. 364, 370 (1996) (determining that the fact that

the law enforcement officer failed to administer a second alcohol screening test as required by G.S. 20-

16.3(b) did not prevent the results from being used by the officer to form probable cause).

Id. § 20-16.3(d).

Id.

See Shea Denning, You Can’t Tell Just from the Smell (School of Government, August 10, 2009),

http://nccriminallaw.sog.unc.edu/?p=606.

Id.

G.S. 20-138.2A (prohibiting the operation of a commercial vehicle while consuming alcohol or while

alcohol remains in the person’s body); G.S. 20-138.2B (prohibiting the operation of a school bus, school

activity bus, child care vehicle, ambulance or other emergency medical services vehicle, firefighting

vehicle, or a law enforcement vehicle while consuming alcohol or while alcohol remains in the person’s

body); G.S. 20-138.3(prohibiting driving by person less than 21 years of age while consuming alcohol or

while alcohol remains in the person’s body).

See G.S. 20-138.2A(b2); G.S. 20-138.2B(b2); G.S. 20-138.3(b2).

Id.

underlying offense—not simply whether the arrest or charge was supported by probable cause.

5. Pre-arrest Testing

Although normally a person submits to chemical analysis only after he or she is arrested or

charged with an implied consent offense, or both, a person who is stopped or questioned by a

law enforcement officer who is investigating whether that person may have committed an

implied consent offense may request that a chemical analysis be administered before any arrest

or other charge is made.

Upon such a request, the officer must afford the person the

opportunity to have a chemical analysis of his or her breath, if available, in accordance with the

procedures required by G.S. 20-139.1(b).

The notice of rights required before administration of

a pre-charge test is prescribed by statute and differs from the notice provided in a case in which

the person already has been charged with an implied consent offense.

It does not include the

right to call an attorney for advice or select a witness to view testing procedures, nor does it

provide for a delay in testing for these purposes.

A pre-charge chemical analysis, like one

administered after a defendant is charged, can give rise to a civil license revocation under G.S.

20-16.5.

6. Affidavit and Revocation Report

In an implied consent case in which a defendant is asked to submit to a chemical analysis, the

law enforcement officer and the chemical analyst (who may be the same person) complete a

form created by the Administrative Office of the Courts called AOC-CVR-1A (Affidavit and

Revocation Report)

averring that the implied consent testing procedures have been followed.

The affidavit, which in certain cases serves also as a revocation report, typically is sworn and

subscribed before a magistrate at the charged person’s initial appearance.

After completing all investigatory and other specified procedures, crash reports, and chemical

analyses, a law enforcement officer must take the person charged before a judicial official for an

initial appearance.

III. Theory of Implied Consent

As previously noted, G.S. 20-16.2(a) provides that “[a]ny person who drives a vehicle on a

highway or public vehicular area hereby gives consent to a chemical analysis if charged with an

. Id. § 20-16.2(i).

. Id.

Id.

Id. § 20-16.5(b1).

The form is available on the website for the Administrative Office of the Courts at

http://www.nccourts.org/Forms/Documents/1049.pdf.

. Id. § 20-38.3(5).

implied-consent offense” and that “[a]ny law enforcement officer with reasonable grounds to

believe that the person charged has committed the implied-consent offense may obtain a

chemical analysis of the person.” Before any chemical analysis is administered the person must

be advised orally and in writing of his or her implied consent rights. Among those rights is a

warning: “Under the implied-consent law, you can refuse any test, but your drivers license will

be revoked for one year and could be revoked for a longer period of time under certain

circumstances, and an officer can compel you to be tested under other laws.”

Suspects also

are advised that “[t]he test results, or the fact of your refusal, will be admissible in evidence at

trial.”

An exception to the requirement that these warnings be given applies if the person is

unconscious or otherwise incapable of refusal. If a person willfully refuses to submit to the

chemical analysis requested by the officer, none may be given under the provisions of G.S. 20-

16.2, but the refusal does not prohibit testing under other applicable procedures of law, such as

compelled blood testing pursuant to a search warrant.

A. Implied Consent Testing and the Fourth Amendment

The Fourth Amendment of the United States Constitution, applicable to the states by the

Fourteenth Amendment,

prohibits unreasonable searches and seizures by government

actors.

What is reasonable under the Fourth Amendment “depends on the context within

which a search takes place.”

Determining the standard of reasonableness “governing any

specific class of searches requires ‘balancing the need to search against the invasion which the

search entails.’”

“On one side of the balance are . . . the individual’s legitimate expectations of

privacy and personal security; on the other, the government’s need for effective methods to

deal with breaches of public order.”

Moreover, the Fourth Amendment’s reasonableness

requirement does not apply to all interactions government actors have with people or

property.

Instead, it applies only to searches and seizures.

Government actors conduct a

search when they infringe on a person’s expectation of privacy that society recognizes as

reasonable or legitimate.

Id. § 20-16.2(a)(1).

Id. § 20-16.2 (a)(3)

Mapp v. Ohio, 367 U.S. 643 (1961).

U.S. Const. Amend IV.

New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

Id. (quoting Camera v. Municipal Court 387 U.S. 523, 536-37 (1967).

Id.

See ROBERT L. FARB, ARREST, SEARCH AND INVESTIGATION IN NORTH CAROLINA 174 (UNC School of Government,

ed. 2011) (hereinafter Arrest, Search and Investigation).

Fourth Amendment seizures are not discussed here. The law of search and seizure is thoroughly treated

in Farb, Arrest, Search and Investigation, supra note 85, Ch. 3.

Id. at 174; see also T.L.O., 469 U.S. at 338.

Courts have long recognized that the “‘compelled intrusio[n] into the body for blood to be

analyzed for alcohol content’” is a Fourth Amendment search.

The physical intrusion necessary

to obtain blood, which involves penetrating beneath the skin, infringes a person’s reasonable

expectation of privacy.

Moreover, the “ensuing chemical analysis of the sample to obtain

physiological data” further invades a person’s privacy interests.

The sort of breath testing performed pursuant to the State’s implied consent laws, which

requires the person to produce aveolar or deep lung breath, “implicates similar concerns about

bodily integrity.”

For this reason, a compelled breath test likewise constitutes a search under

the Fourth Amendment.

A compulsory urine test in an implied-consent case implicates the

Fourth Amendment as well.

Though the testing of urine does not require a surgical intrusion

into the body, the chemical analysis of urine, like that of blood, can reveal “a host of private

medical facts about [a person].”

Furthermore, the process of collecting a urine sample entails

the government’s incursion into an area in which a person has a reasonable expectation of

privacy.

Because each type of test conducted pursuant to the State’s implied consent laws implicates

privacy interests protected by the Fourth Amendment, to be lawful, they must satisfy the

reasonableness requirement of the Fourth Amendment. The traditional Fourth Amendment

standard of reasonableness for a government search requires that the search be carried out

based on probable cause pursuant to a warrant.

100

There are, however, several exceptions to

the probable cause or warrant requirement, or both, including exceptions for searches incident

to arrest (exceptions to both), searches carried out pursuant to a person’s consent (exceptions

to both), searches carried out pursuant to special governmental needs (sometimes exceptions to

both), and searches carried out in exigent circumstances (warrant exception).

101

Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989) (quoting Schmerber v. California, 384

U.S. 757, 767-768 (1966)).

Id.

Id. (noting that “‘[t]here are few activities in our society more personal or private than the passing of

urine.’”) (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5

Cir. 1987)).

100

State v. Cook, 306 N.C. 132 (1982).

101

Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473-74 (1985) (listing

exceptions , noting that they are “neither few nor well-delineated,” and arguing that reasonableness

should be governing analysis, rendering the warrant requirement less important).

While the United States Supreme Court has not analyzed the reasonableness of searches carried

out under implied consent laws in circumstances in which a person acquiesces to the test,

102

many state courts have considered the constitutionality of testing carried out pursuant to their

implied consent laws—laws that exist in every state.

103

Implied-consent statutes typically

require that a law enforcement officer have probable cause to believe that the driver is under

the influence of alcohol or has committed an alcohol-related offense before an officer may

conduct a chemical test

104

since, “in the criminal context, the reasonableness of a search under

the Fourth Amendment is measured with a “‘probable cause’ yardstick.”

105

102

The United States Supreme Court has considered the reasonableness of compelled testing in implied

consent cases in which a person refuses to be tested, holding that compulsory blood testing over a

defendant’s objection may be carried out based on probable cause but without a warrant when, under

the circumstances, the time necessary to obtain a warrant threatens the dissipation of alcohol in the

person’s body. Schmerber v. California, 384 U.S. 757 (1966). The court’s holding regarding nonconsensual,

warrantless blood draws is discussed infra in section 2a. ).

103

See Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552, 1566 (2013) (plurality opinion) (stating that “all

50 States have adopted implied consent laws that require motorists, as a condition of operating a motor

vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion

of a drunk-driving offense”); see also Kenneth J. Melilli, The Consequences of Refusing Consent to A Search

or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 920 n.84

(2002) (citing Matthew J. Dougherty, Casenote, Hays v. City of Jacksonville, 518 So. 2d 892 (Ala. Crim. App.

1987), 19 Cumb. L. Rev. 177, 177 & n.3 (1988)) (citing implied consent statutes in effect in 1988 for “all

fifty states and the District of Columbia”)).

104

See Elizabeth F. Rubin, Trying to Be Reasonable About Drunk Driving: Individualized Suspicion and the

Fourth Amendment, 62 U. Cin. L. Rev. 1105, 1106-07 (1994) (citing Ga. Code Ann. § 40-5-55 (Michie 1992)

(tests authorized after arrest and with “reasonable grounds”); Iowa Code § 321J.6 (1991) (tests authorized

on “reasonable grounds” and additional condition such as arrest, injury, or death); Minn. Stat. § 169.123

(1992) (tests authorized with “probable cause” and additional condition such as arrest, property damage,

injury, or death); Mont. Code Ann. § 61-8-402 (1992) (tests authorized on “reasonable grounds” and after

arrest); N.D. Cent. Code § 39-20-14 (1991) (tests authorized on officer's “opinion” of alcohol use); Vt. Stat.

Ann. tit. 23, § 1202 (1991) (tests authorized on “reasonable grounds”); Wash. Rev. Code § 46.20.308

(1991) (tests authorized on “reasonable grounds”)). Georgia, Illinois, Mississippi and Pennsylvania enacted

implied-consent statutes that authorized chemical testing of drivers who were involved in (Georgia,

Mississippi, Pennsylvania) or at fault for (Illinois) an automobile accident involving death or, in some

cases, serious injury, even if the officer did not have probable cause that the driver was under the

influence of alcohol. Ga. Code Ann. § 40-5-55(a) (Michie 1992); Ill. Ann. Stat. ch. 625, para. 5/11-501.6

(Smith-Hurt 1992); 75 PA. Cons. Stat. sec. 1547 (a)(2) (1992); Miss. Code Ann. 63-11-8(1) (1996). Supreme

courts in those states held that those statutory provisions violated the Fourth Amendment. See Cooper v.

State, 587 S.E.2d 605 (Ga. 2003); King v. Ryan, 607 N.E.2d 154 (Ill. 1992); McDuff v. State, 763 So.2d 850

(Miss. 2000); Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992). Compare State v. Blank, 90 P.3d 156

(Alaska 2004) (construing similar state statute to be constitutional in context of warrantless searches for

breath or blood in accident cases when probable cause to search exists); State v. Roche, 681 A.2d 472,

474 (Maine 1996) (upholding similar state statute which required a showing of probable cause only when

admission of the test result was sought at trial rather than before testing; holding that the justification for

suspicionless testing of drivers involved in fatal accidents is linked to the gravity of the accident as well as

the “evanescent nature of evidence of intoxication and the deterrent effect on drunk driving of

immediate investigations of fatal accidents”). One of the offenses deemed an implied consent offense

under North Carolina law, misdemeanor death by vehicle, is an offense unrelated to alcohol-consumption.

See G.S. 20-16.2(a1) (defining “implied-consent offense” to include a violation of G.S. 20-141.4(a2); G.S.

20-141.4(a2) (defining misdemeanor death by vehicle as unintentionally causing the death of another

State courts have determined on various grounds that chemical testing carried out pursuant to

implied consent statutes satisfies the reasonableness requirement of the Fourth Amendment.

Courts have held that (1) “the bodily intrusion the motorist is being asked to allow, in return for

retaining the license to drive, is a minimal one,” and the State has a “compelling need to get

intoxicated drivers off the highways,”

106

(2) breath testing is the type of nonintrusive search that

may be carried out incident to arrest,

107

(3) the warrant requirement is excused by the

exigencies created by the evanescent nature of alcohol;

108

and (4) by driving on a road within

the State, the person has given his consent to evidentiary testing.

109

North Carolina’s appellate

courts have never expressly considered whether chemical testing pursuant to the State’s

implied-consent statutes satisfies the reasonableness requirement of the Fourth Amendment.

Instead, the state’s appellate courts have relied upon the legal theory of implied consent in

upholding such testing as lawful. In Sedars v. Powell,

110

the state supreme court explained that

person while engaged in the violation of a state law or local ordinance applying to the operation or use of

a vehicle or to the regulation of traffic, other than impaired driving, and the commission of the law or

ordinance violation is the proximate cause of death).

105

Cooper v. State, 587 S.E.2d 605, 609 (Ga. 2003) (quoting Adams v. State, 498 S.E.2d 268, 271 (Ga.

1998).

106

State v. Wintlend, 655 N.W.2d 745, 751 (Wis. Ct. App. 2002); see also South Dakota v. Neville, 459 U.S.

553, 563, 558 (1983) (characterizing a “simple blood-alcohol test” as “safe, painless, and commonplace”

and noting the “well documented” “carnage caused by drunk drivers”); Mackey v. Montrym, 443 U.S. 1,

15 (1979) (finding that Massachusetts’ compelling interest in highway safety justifies the summary

suspension of a person’s license for refusing a breath test; noting in response to petitioner’s claim that he

requested to take the test after his initial refusal that the state “must have the authority, if it is to protect

people from drunken drivers, to require that the breath-analysis test record the alcoholic content of the

bloodstream at the earliest possible moment.”)

107

See United States v. Reid, 929 F.2d 990 (4

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, 1450 (9

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, 1110 (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, 1364 (Pa. Super. Ct. 1984) (“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”).

108

See United States v. Reid, 929 F.2d 990 (4

Cir. 1991) (finding breath tests permissible under the

exigency and search incident to arrest exceptions to the Fourth Amendment’s warrant requirement);

Commonwealth v. Anderi, 477 A.2d 1356, 1364 (Pa. Super. Ct. 1984) (“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.”).

109

State v. Diaz, 160 P.3d 739 (Idaho 2007).

110

298 N.C. 453, 462 (1979)

“anyone 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.” The court later reaffirmed that principle in a criminal case, State v. Howren,

111

and has

characterized the right to refuse as a matter of legislative grace, not a constitutional right.

112

In his treatise on the Fourth Amendment, Professor Wayne LaFave eschews this consent

justification on the basis that “[c]onsent ‘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.”

113

“Were it otherwise,” LaFave continues,

“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.”

114

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. He

explains:

<<double indent>>

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.’”

<<end double-indent>>

Adoption of LaFave’s suggested approach would require courts to extend the reasonableness

analysis applied to so-called “special needs” searches, intrusions justified by purposes divorced

111

312 N.C. 454 (1984)

112

Id. at 456; Accord Neville, 459 U.S. at 560 n.10, 565 (person has no constitutional right to refuse to take

a blood-alcohol test; instead right to refuse blood-alcohol test a matter of grace bestowed by the

legislature).

113

4 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 164-65 (5th ed. 2012).

114

Id. Other commentators share LaFave’s skepticism. See Comment, The Theory and Practice of Implied

Consent in Colorado, 47 U. Colo. L. Rev. 723, 762 (1976). (stating that “the state can use [the threat of

license revocation] only under the same circumstances that it can use force; viz, if the search would have

been a reliable one, done pursuant to a lawful arrest, in a reasonable, medically approved manner, where

the arresting officer had probable cause to believe that the licensee was indeed intoxicated”); see also D.

Bernard Zaleha, Alaska’s Criminalization of Refusal to Take a Breath Test: Is It a Permissible Warrantless

Search Under the Fourth Amendment, 5 Alaska L. Rev.263, 289 (1988); Penn Lerblance, Implied Consent to

Intoxication Tests: A Flawed Concept, 53 St. John’s L. Rev. 39, 63-64 (1978).

from the State’s general interest in law enforcement, to searches in implied consent cases.

115

North Carolina’s courts were to apply this analysis, searches carried out pursuant to the state’s

implied consent laws might be deemed reasonable under this framework 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

116

and (4) the advance notice provided by the implied consent statutes themselves.

B. Statutory Right to Refuse

Given that a person has no constitutional right to refuse an implied-consent test, one might

question why implied-consent statutes, such as North Carolina’s, incorporate a statutory right of

refusal. Indeed, Professor Jack Weinstein, writing about implied consent a year after New York’s

enactment of the first state statute requiring drivers to consent to a chemical test for

intoxication noted the paradox in providing that “although the driver has constructively

consented to take the test, when the chips are down and he is actually apprehended he may

renege on his imputed promise and refuse.”

117

Professor Weinstein recognized the “practical

merit” of coupling free choice with mandatory consent, stating that freedom to refuse “prevents

the unseemly struggle likely to arise when an intoxicated driver refuses to do what the police

insist he is bound to do,”

118

while implied consent in advance avoids “the need for explicit

consent from a heavily intoxicated person” or from someone rendered dazed or unconscious in

a crash.

119

Thirty years ago, one writer argued that impaired driving prosecutions would be facilitated by

scrapping the notion of implied consent and resorting to compulsory testing, arguing that

“[a]lthough implied consent developed as a means of facilitating the use of chemical evidence,

115

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.”).

116

This justification does not apply to implied consent testing carried out when probable cause exists for

no other implied consent offense than misdemeanor death by vehicle. See supra note 100.

117

Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for Intoxication, 45 J. Crim. L.

Criminology & Police Sci. 541, 543 (1954-55).

118

Id.; see also Neville, 459 U.S. at 559 (noting that South Dakota permits suspects to refuse a blood-

alcohol test “to avoid violent confrontations”).

119

Weinstein, 45 J. Crim. L. Criminology & Police Sci. at 545. Professor Weinstein wrote that these

practical concerns were not, however, the impetus for the choice/consent dichotomy. Instead, the

drafters viewed the coupling of implied consent with the ability to refuse as a method for avoiding any

question about a driver’s constitutional right to refuse to take the test: By accepting the privilege to drive,

a person waives any constitutional right to refuse the search. Weinstein acknowledged doubts about

whether, in actuality, this “indirect approach using a theory of conditions” avoids the need for

constitutional analysis. Id. at 545.

the statutes currently constitute the primary barriers to the use of that evidence in as many as

forty-five percent of potential DWI prosecutions.”

120

1. Compelled Testing after Refusal

When a person charged with an implied consent offense refuses to participate in or acquiesce to

the type of testing requested by a law enforcement officer, the person may nevertheless be

compelled to provide a sample of his or her blood for analysis. Indeed, the implied consent

notice set forth in G.S. 20-16.2(a)(1) informs a person that he or she may refuse any test, but an

officer can compel testing under other laws. Any such compulsory test must comport with the

Fourth Amendment.

The United States Supreme Court in Schmerber v. California

121

first considered the Fourth

Amendment restrictions on the withdrawal of blood from an impaired driving suspect over his

objection. The defendant in Schmerber was injured in an automobile accident and was taken to

the hospital, where he subsequently was arrested for driving under the influence of alcohol. A

police officer then ordered a blood test over the defendant’s objection. After explaining that the

warrant requirement applied generally to searches that intrude into the human body, the court

concluded that the warrantless blood draw was permissible because the officer might

reasonably have believed that he was confronted with an emergency in which the delay

necessary to obtain a warrant threatened the destruction of evidence, given the natural

dissipation from alcohol from a person’s blood. The court noted that “[p]articularly in a case

such as this, where time had to be taken to bring the accused to a hospital and to investigate the

scene of the accident, there was no time to seek out a magistrate and secure a warrant.”

122

the decades following Schmerber, a split of authority developed among state courts regarding

whether the dissipation of alcohol alone provided a sufficient exigency to excuse the Fourth

Amendment’s warrant requirement in any impaired driving case or whether special facts of

exigency beyond the evanescence of alcohol were required.

123

North Carolina’s courts appeared

to require a showing of facts beyond the evanescence of alcohol to establish exigent

120

Phillip T. Bruns, Driving While Intoxicated and the Right to Counsel: The Case Against Implied Consent,

58 Tex. L. Rev. 935, 959 (1980). Bruns further contended that “implied consent procedures produce

disparities in the treatment of drunk drivers, to the advantage of those who are aware of the benefits of

refusing chemical testing. If these adverse consequences are not necessary to avoid the potential evils of

physical coercion in administering the tests, then states have no reason for retaining them.”

121

384 U.S. 757 (1966).

122

Id. at 770-71.

123

See, e.g., State v. Netland, 762 N.W.2d 202, 214 (Minn. 2009).

circumstances,

124

while courts in other jurisdictions considered the dissipation of alcohol

sufficient to excuse the warrant requirement.

125

The United States Supreme Court resolved the split among state courts in 2013, holding in

Missouri v. McNeely

126

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 over a defendant’s objection. In so holding, the high court

rejected the State’s call for a categorical rule authorizing nonconsensual 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. Thus, while the natural dissipation of

alcohol in the blood may support a finding of exigency in a specific case in which a defendant

refuses to acquiesce to a request for chemical testing, it does not do so categorically. Whether a

nonconsensual warrantless blood test of a drunk-driving suspect is reasonable must be

determined case by case based on the totality of the circumstances.

127

The North Carolina Court of Appeals in State v. Fletcher,

128

a case decided before McNeely,

employed the totality of the circumstances analysis later approved by the United States

Supreme Court in considering whether exigent circumstances existed to support the

nonconsensual, warrantless withdrawal of the defendant’s blood in an impaired driving case.

The Fletcher Court 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.

129

The

Fletcher court concluded that an exigency existed based on a potential delay of two to three

hours.

130

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

124

See State v. Fletcher, 202 N.C. App. 107 (2010) (evaluating the reasonableness of an officer’s belief that

the delay associated with obtaining a warrant would result in the dissipation of the percentage of alcohol

in the defendant’s blood in light of the two to three hours that the officer testified the process would

require, and concluding that sufficient exigency existed). Accord 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).

125

See, e.g., Netland, 762 N.W.2d at 214 (holding that the criminal test-refusal statute does not violate

the Fourth Amendment “because under the exigency exception, no warrant is necessary to secure a

blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an

element of the offense”). Accord State v. Machuca, 227 P.3d 729, 736 (Or. 2010); State v. Bohling, 494

N.W.2d 399 (Wis. 1993).

126

___ U.S. ___, 133 S. Ct. 1552 (2013).

127

Id. at 1568. The court noted that exigent circumstances may exist when there is no accident. Id.. 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.

128

202 N.C. App. 107 (2010)

129

Id. at 111.

130

Id. at 110-111.

light on whether a delay of the sort in Fletcher is a “significant” delay that “negatively affect[s]

the probative value of the results,”

131

though that seems a likely conclusion.

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.”

132

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

133

announced in McNeely.

In its first published opinion post-McNeely considering whether a warrantless nonconsensual

blood draw was lawful, the state court of appeals in State v. Dahlquist

134

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.

135

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. The holding in Dahlquist was unsurprising as it

was presaged by Fletcher

136

and McNeely itself. Dicta in the opinion indicates, however, that the

court might evaluate the totality of the circumstances differently in future cases.

137

After

determining that the facts in the case gave rise to an exigency that supported a warrantless

search, the Dahlquist Court suggested that law enforcement officers consider amending their

131

McNeely, ___ U.S. at ___, 133 S. Ct. at 1561.

132

202 N.C. App. at 113.

133

See Orin Kerr, Missouri v. McNeely and Exigent Circumstances to Conduct Blood Tests for Drunk Driving

Cases, The Volokh Conspiracy, http://www.volokh.com/2013/04/17/missouri-v-mcneely-and-exigent-

circumstances-to-conduct-blood-tests-for-drunk-driving-cases/ (April 17, 2013) (noting Court’s adoption

of a standard rather than a bright-line rule).

134

___ N.C. App. ___, ___ S.E.2d ___ (December 3, 2013), temp. stay allowed, ___ N.C. __, ___ S.E.2d ___

(December 20, 2013).

135

Shea Denning, Four hour delay to obtain search warrant an exigency, at least for now (December 4,

2013), N.C. CRIM. L., UNC SCH. OF GOV’T BLOG (Dec. 4, 2013), available at

http://nccriminallaw.sog.unc.edu/?p=4556.

136

202 N.C. App. 107 (2010).

137

___ N.C. App. at ___, ___ S.E.2d at ___.

post-arrest procedures in two respects. First, where the technology is available, officers 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.

2. Missouri v. McNeely and the Theory of Implied Consent

McNeely considered the reasonableness of the withdrawal of a suspect’s blood over his or her

objection—not the extraction and testing of blood pursuant to a suspect’s acquiescence under a

state’s implied consent laws. Because the standard announced in McNeely applies only when a

person refuses a request for the withdrawal of blood, its holding did not bar states from

procuring blood samples without a warrant pursuant to their implied consent laws.

138

Indeed,

the McNeely plurality appeared to equate implied consent with actual consent by referring to

consequences when a motorist “withdraws consent.”

139

Yet McNeely’s holding that there was no per se exigency in every impaired driving case

authorizing the warrantless withdrawal of blood challenged one of the rationales relied upon as

rendering lawful warrantless implied consent searches. As noted earlier, some courts had

reasoned that searches carried out pursuant to implied consent statutes were lawful because

they were searches that law enforcement officers could have compelled in any event without

the need for consent or a warrant.

140

In light of the McNeely Court’s clarification that law

enforcement officers cannot compel such searches in every implied consent case, that particular

rationale for implied consent laws rests on shaky ground.

Recent litigation from other states indicates that this post-McNeely concern about the analytical

framework for implied consent statutes is not just academic. Defendants have argued

that McNeely requires more than a totality of the circumstances review of non-consensual

warrantless blood draws. They contend that it also requires a court to consider whether so-

called “consensual” blood draws, carried out without a warrant pursuant to a state’s implied

consent laws, are constitutional. In other words, they contend that McNeely requires

reconsideration of the long-accepted theory of implied consent. Two state supreme courts have

undertaken that analysis.

a) State v. Butler

The Supreme Court of Arizona, sitting en banc, considered in State v. Butler

141

whether a

juvenile’s consent to implied consent testing under was involuntary so as to require suppression

138

See supra section B.1; see also McNeely, ___ U.S. at ___, 133 S. Ct. at 1566 (citing implied consent laws

requiring motorists to consent to BAC testing as among the legal tools states have to enforce drunk-

driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws).

139

See 133 S.Ct. at 1556.

140

See supra ________.

141

302 P.3d 609 (Ariz. 2013).

of the evidence. The court held that independent of the state’s implied consent law, the Fourth

Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood

draw.

142

If the arrestee is a juvenile, the youth’s age and a parent’s presence are relevant factors

in assessing whether consent was voluntary.

143

The court found sufficient evidence to support a

juvenile court’s finding that the juvenile’s consent in Butler was not voluntary, noting, among

other facts, the juvenile’s age, the fact that no parent was present, that the juvenile was

detained for about two hours, and that the juvenile was informed that he was required to

submit to the test.

144

One justice wrote a concurring opinion noting, perhaps presciently that the opinion “might well

engender dubious involuntariness claims and related suppression hearings aimed at excluding

evidence derived from chemical testing of impaired drivers whose express consent was

ostensibly voluntary and valid under Arizona’s implied consent law.”

145

The concurring justice

opined that the “safest course of action for law enforcement might simply be to obtain search

warrants . . . for obtaining blood samples in DUI investigation . . . . [as] that default approach,

although arguably diluting the effectiveness of the implied consent law, and not constitutionally

required under McNeely (which neither involved nor discounted consent as a valid exception to

the Fourth Amendment’s warrant requirement), would certainly comport with the Fourth

Amendment and alleviate many potential, foreseeable problems in this area.”

b) State v. Brooks

The Minnesota State Supreme Court in State v. Brooks

146

likewise considered the voluntariness

of a defendant’s consent to the warrantless withdrawal of his blood and collection of his urine

pursuant to the state’s implied consent laws. While the Minnesota court in Brooks

147

undertook

the same examination as the Arizona court in Butler,

148

it reached a different conclusion as to

voluntariness.

The defendant in Brooks was arrested for impaired driving three times within a six month

period.

149

Each time, he was read Minnesota’s implied consent advisory, which informs drivers

that Minnesota’s law requires them to take a chemical test, that refusing to take a test is a

crime, and that drivers have the right to talk to a lawyer before deciding whether to take a

142

Id. at 613.

143

Id.

144

Id. at 613-614.

145

Id. at 617. (Pelander, J., concurring).

146

State v. Brooks, 838 N.W.2d 563 (Minn. October 23, 2013).

147

Id.

148

Butler, 302 P.3d 609 (Ariz. 2013).

149

Brooks, 836 N.W.2d at 565-66.

test.

150

The defendant also was advised of his right to consult an attorney, a right that he

exercised in each instance before submitting to testing.

151

The defendant moved at trial to suppress evidence of the tests, arguing that the State was

required to obtain a warrant before conducting these searches as there was no exigency and no

voluntary consent. The defendant pointed out that he agreed to chemical testing only after the

police told him that refusal to do so was a crime. He contended therefore that his consent was

not voluntary but instead was coerced.

In analyzing the defendant’s claim, the Minnesota Supreme Court invoked the reasoning of the

United States Supreme Court in South Dakota v. Neville.

152

Neville held that a defendant’s

refusal to submit to a blood-alcohol test pursuant to an officer’s lawful request was not an

action protected by the Fifth Amendment privilege against self-incrimination; thus, evidence

regarding a suspect’s refusal to submit to chemical testing was admissible.

153

Central to Neville’s

analysis was its determination that no impermissible coercion was involved when the suspect

refused testing.

154

Neville explained that since the “offer of taking a blood-alcohol test is clearly

legitimate, the action becomes no less legitimate when the State offers a second option of

refusing the test, with the attendant penalties for making that choice.”

155

Brooks reasoned that, notwithstanding Neville’s examination of coercion within the context of

the Fifth Amendment, the question before the Neville Court was “whether the existence of a

consequence for refusing to take a chemical test rendered the driver’s choice involuntary.”

156

Neville’s conclusion that the consequences attendant to a refusal did not amount to

impermissible coercion led the Brooks court to conclude that “a driver’s decision to agree to

take a test is not coerced simply because Minnesota has attached the penalty of making it a

crime to refuse the test.”

157

Brooks distinguished the defendant’s consent from that the United States Supreme Court

deemed involuntary in Bumper v. North Carolina.

158

In Bumper, the police sought to justify

search of house based on the owner’s consent, contending she consented after police told her

they had a warrant.

159

The Court held that this sort of submission to authority was not

150

Id.

151

Id.

152

Id. at 570 (citing South Dakota v. Neville, 459 U.S. 553 (1983)).

153

459 U.S. at ___.

154

Id. at ___.

155

Id. at ___.

156

Brooks, 836 N.W.2d at 570.

157

Id.

158

391 U.S. 543 (1968).

159

Id. at ___.

consent.

160

Brooks distinguished Bumper on the basis that Minnesota law afforded a suspect the

absolute right to refuse chemical testing.

161

Brooks further held that the defendant’s arrest did

not render his consent coerced as he was not confronted with repeated police questioning, nor

was he asked to consent after having spent days in custody.

162

The defendant’s consultation

with an attorney reinforced the court’s conclusion that his consent was not illegally coerced.

163

The court clarified that it did not “hold that [the defendant] consented because Minnesota law

provides that anybody who drives in Minnesota ‘consents . . . to a chemical test.’” Instead, it

determined that the defendant consented based on a totality of the circumstances.

164

c) Limitations of Consent-Based Justification

Thus, neither Butler

165

nor Brooks

166

relied upon implied consent as vitiating Fourth Amendment

concerns. It is unclear whether, if asked to reconsider its analysis, the North Carolina Supreme

Court would depart from its previously expressed view that “anyone who accepts the privilege

of driving upon our highways has already consented to [chemical testing for alcohol] and has no

constitutional right to consult a lawyer to void that consent.”

167

If, however, consent is the sole 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 Brooks

168

attempted to distinguish Bumper v.

160

Id. at ___.

161

Brooks, 836 N.W.2d at 571.

162

Id.

163

Id.

164

Id. at 572. Justice Stras concurred in the court’s judgment for reasons that diverged sharply from the

majority’s analysis. The concurrence called the majority’s conclusion that the defendant’s consent was

voluntary mistaken, noting that “[i]t is hard to imagine how [the defendant’s] consent could be voluntary

when he was advised that refusal to consent to a search is a crime.” Id. at 573-74 (Stras, J. concurring).

Justice Stras would have affirmed the decision below to admit the evidence based on Davis v. United

States, 131 S.Ct. 2419 (2011), which held that searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary rule. Id. at 574 (Stras, J. concurring). Stras

noted that the police gathered the samples from the defendant in accordance with State v. Netland, 762

SW.2d 202, 214 (Minn. 2009), which approved of the warrantless collection of blood-alcohol evidence

based solely on the evanescent nature of alcohol in the bloodstream, a holding abrogated by McNeely. Id.

at 576 (Stras, J. concurring). “Netland was wrongly decided,” Stras wrote, “but that was our mistake, not a

mistake by law-enforcement officials.” Id. at 576 (Stras, J. concurring).

165

Butler, 302 P.3d 609 (Ariz. 2013).

166

Brooks, 863 N.W.2d 563.

167

Sedars v. Powell, 298 N.C. 453, 462 (1979).

168

__ N.W.2d __, 2013 WL 5731811 (Minn. October 23, 2013).

North Carolina,

169

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

170

and Butler

171

rejected) is even more problematic for the reasons noted above in Section _____.

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. As noted earlier, 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.”

172

Thus, a voluntariness standard would appear

to require, notwithstanding a statutory provision to the contrary,

173

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.

3. Fifth Amendment and Refusals

The Fifth Amendment to the United States Constitution, made applicable to the states by the

Fourteenth Amendment, provides that no person “shall be compelled in any criminal case to be

a witness against himself.” North Carolina’s implied consent laws, like those in other states,

provide that a person’s refusal to submit to a chemical analysis or to perform field sobriety tests

is admissible in any criminal, civil, or administrative action against the person.

174

The United

States Supreme Court in South Dakota v. Neville

175

held that a defendant’s refusal to submit to a

blood-alcohol test pursuant to a law enforcement officer’s lawful request is not an act protected

by the privilege against self-incrimination.

176

The Court explained that the values behind the

Fifth Amendment are not hindered when the State offers a suspect the choice of submitting to

the blood-alcohol test or having his refusal used against him as the “simple blood-alcohol test is

so safe, painless, and commonplace . . . that the state could legitimately compel the suspect,

169

391 U.S. 543 (1968).

170

Brooks, ___ N.W.2d ____.

171

Butler, ___ N.W.2d ____.

172

See Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for Intoxication, 45 J. Crim. L.

Criminology & Police Sci. 541, 543 (1954-55).

173

See G.S. 20-16.2(b) (providing that an unconscious person may be tested without notification of rights

or request).

174

G.S. 20-139.1(f).

175

459 U.S. 553 (1983)

176

Id.; See also State v. Flannery, 31 N.C. App. 617 (1976) (admission of evidence of defendant’s refusal

did not infringe right against self-incrimination).

against his will, to accede to the test.”

177

Given “that the offer of taking a blood-alcohol test is

clearly legitimate, the action becomes no less legitimate when the State offers a second option

of refusing the test, with the attendant penalties for making that choice.”

178

Thus, the Neville

court concluded that suppression of the defendant’s statement that “I’m too drunk, I won’t pass

the test,” was not required by the U.S. Constitution.

177

Neville, 459 U.S. at 563.

178

Id.