by Michael Lowrey
My court story of the month for Carolina Journal is on the legality of forced blood tests in DWI cases. The article in full:
RALEIGH — Drunks don’t always make the most cooperative suspects. But it’s not clear how aggressively police can pursue evidence, such as blood samples, when they apprehend a suspect who’s suspected of driving while intoxicated. And a recent ruling by the state Court of Appeals hasn’t settled the matter.
On Dec. 28, 2010, Chatham County Sheriff’s Deputy Justin Fyle responded to a call reporting suspicious activity. Fyle found Ronald McCrary apparently sleeping in a red Isuzu Trooper parked poorly in a driveway of another person’s home. When Fyle opened the car’s door, he noticed a nearly empty bottle of vodka. McCrary smelled of alcohol, had red and glassy eyes, and couldn’t stand up to perform field sobriety tests. Fyle arrested McCrary for driving while impaired.
Soon afterward, McCrary began complaining of chest pains and demanded to be taken to the hospital. Emergency medical services personnel were called. At that point, Fyle stated his plan was either to bring McCrary into the sheriff’s office for processing if EMS personnel cleared him or obtain a blood sample without a warrant if McCrary were transported to the hospital.
Fyle’s sergeant ordered McCrary to be taken to the hospital, where his “belligerent conduct accelerated.” McCrary also refused to provide a blood sample; one was taken without his consent.
McCrary eventually was convicted of driving while impaired and communicating threats. He was sentenced to consecutive 120-day prison terms on the charges.
Drawing blood is a search
At trial and again before the N.C. Court of Appeals, McCrary argued that the results of the blood sample should be suppressed.
Federal and state courts have recognized that taking blood from someone amounts to a search under both the U.S. and North Carolina constitutions. Searches conducted without a properly issued warrant are unreasonable unless conducted with probable cause and under exigent circumstances. And last year, the U.S. Supreme Court in a case called Missouri v. McNeely held that “in drunk-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.” In McNeely, an officer drove a suspect to a hospital to obtain a blood sample without first obtaining a warrant after McNeely said he would refuse a breath test.
The question before the appeals court was whether the circumstances in McCrary’s case rose to the level of an exigency. Two of the three judges on the Court of Appeals’ panel held that it might, although a trial court needed to make that determination.
“We find this case to be more similar to State v. Granger than to McNeely,” wrote Judge Donna Stroud for the court.
In Granger, the Court of Appeals held that exigent circumstances existed when a DWI suspect required hospital care and no other officer was available to stay with him while the officer left to obtain a warrant.
The appeals court ruled that the trial judge should have made specific findings of fact about whether a magistrate had been available and how much time it would have required to obtain a warrant.
Judge Ann Marie Calabria dissented from the majority holding, finding that Fyle overstepped his authority and it was not necessary to ask a trial court to look for more facts.
“In the instant case, the trial court’s unchallenged findings demonstrate that Deputy Fyle’s actions fall squarely within the ambit of the example articulated by McNeely.”
The key to Calabria was that Fyle had decided to obtain a blood sample well before any exigent circumstances may have developed at the hospital.
“Deputy Fyle simply ignored our Supreme Court’s long-established directive that ‘a search warrant must be issued before a blood sample can be obtained,’” she wrote.
“He then sought to impermissibly benefit from his failure to seek a warrant by asserting that an exigency existed at the moment the blood draw was to occur. At this point, it was far too late for Deputy Fyle to consider, for the first time, whether a warrant could reasonably be obtained. ”
N.C. Court of Appeals rulings are binding interpretations of state law unless overruled by a higher court. Because of Calabria’s dissent, the state Supreme Court is required to hear the case should McCrary appeal.
The case is State v McCrary, (13-1059).