Attack 1: Disputing the Collection of Blood Evidence
The Warrant Requirement and it’s Exceptions
Every attack on State collected blood results should begin with reference to the Constitution. The Fourth Amendment of the U.S. Constitution and Article I of the N.C. Constitution protect citizens against unreasonable searches and seizures. U.S. Const. amend IV; N.C. Const art I. § 20. Drawing blood is a search. Schumerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966). A warrantless search of a person is per se unreasonable unless it falls within a recognized exception to the warrant requirement. Missouri v. McNeely, 569 U.S. ____, 133 S. Ct. 1552 (2013). “Blood tests are significantly more intrusive than [breath tests], and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Birchfield v. North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016).
Remind your judge that the guiding light of Fourth Amendment analysis is reasonableness and that a warrant is generally required. Moreover, remind your judge that warrantless searches are per se unreasonable and that the State has the burden of showing why a search without a warrant is reasonable and does not violate constitutional protections.
Warrant Exception: Search Incident to Arrest
The U.S. Supreme Court has recently decided that a blood test does not qualify as a search incident to arrest. Birchfield v. North Dakota, 579 U.S. ____, 136 S. Ct. 2160 (2016).
Warrant Exception: Exigent Circumstances
In 2013, The U.S. Supreme Court explained that dissipation of alcohol alone does not create per se exigent circumstances justifying a warrantless taking of blood from a person suspected of impaired driving. Missouri v. McNeely, 569 U.S. ____, 133 S. Ct. 1552 (2013). Rather, a warrantless blood test of a drunk-driving suspect must be determined on a case-by-case basis on the totality of the circumstances.
North Carolina’s Application of Missouri v. McNeely
The Court of Appeals addressed McNeely in State v. Dahlquist, 231 N.C. App. 100 (2013). The Court found that exigent circumstances existed where a Defendant refused breath testing in a mobile alcohol unit at a checkpoint and then again refused blood testing when he was subsequently taken to a hospital. In support of its finding of exigent circumstances, The Court noted that the officer estimated that without a warrant it would take 45-60 minutes to draw blood; if the officer sought to obtain a warrant he estimated it would take 4-5 hours.
Despite the Dahlquist Court finding exigent circumstances the Court laid out two faults of the officer that should be explored by the defense in detail moving forward:
- Did the officer seek to obtain a warrant using “video transmission” which has been statutorily allowed since 2005?
- Did the officer call the hospital and/or a magistrate in an attempt to figure out the times it would take to draw blood and get a warrant?
While the Dahlquist Court found exigent circumstances it also laid the groundwork for the defendant’s cross-examination of the officer acting as chemical analyst.
The Court of Appeals has also looked at exigent circumstances in the context of a DWI investigation where the suspected impaired driver was injured in an accident and subsequently transported by emergency vehicle to the hospital. State v. Granger, 235 N.C. App. 157 (2014). In Granger, the Court found the charging officer was by himself and would have had to leave the Defendant unattended for a minimum of 40 minutes to obtain a search warrant, and that it would be difficult to get an accurate chemical result if Defendant were given medications prior to obtaining chemical analysis. Given these circumstances and that it was approximately 20 minutes from the hospital to the jail, the Court found exigent circumstances existed to perform a blood draw.
The Court of Appeals again found exigent circumstances in 2017, in a case with facts similar to Dalhquist. State v. Burris, __ N.C. App. __ (2017). In Burris, the charging officer was alone (no other officer to obtain a warrant or stay with defendant). The Defendant was initially taken to a police station where he refused breath testing. He was then taken to a hospital, which was 4 minutes from the station and approximately 8 minutes from the magistrate’s office. The evidence showed that only 1 magistrate would have been on duty and that obtaining a warrant would have taken between 60 and 90 minutes.
However, in State v. Romano, ___ N.C. ___ (2017), the Supreme Court of North Carolina addressed exigent circumstances for the first time since McNeely. The Court found “the trial court aptly noted that this case does not involve a situation of exigency.” In determining that no exigency existed the Court noted, that (1) multiple officers were present to assist in the investigation, (2) an officer could have left the hospital to drive to the magistrate’s office which was only a few miles away, (3) the charging officer was familiar with the warrant process and knew that it involved fill-in-the-blank forms that are not time-consuming, and (4) that magistrates were on duty and available during the relevant time period.
These facts are important in bringing out the reasons that exigency does not exist. Here are some questions that should be asked by the Defendant of the chemical analyst who foregoes getting a warrant:
- Did you call the magistrates office on your way to draw blood to determine the wait time for obtaining a warrant? To see if a magistrate was on duty?
- Did you call for other officers to assist in your investigation knowing that you might need to obtain a warrant? Did you call to see if other officers were at the jail who could obtain a search warrant from the magistrate?
- Are you familiar with the application process to obtain a warrant?
- Isn’t that process a simple fill-in-the-blank application and fill-in-the-blank search warrant?
- Did you call a hospital to see if there would be a wait?
- Did you see if there were any nurses or other medical personnel qualified to draw blood in the vicinity of the magistrate’s office?
- How far was the hospital from the magistrate’s office?
- Did you have probable cause for a search warrant prior to the place of the blood draw? If so, why did you not go to the magistrate’s office first?
Begin any argument against exigency by citing the Constitution, McNeely and Romano.
Warrant Exception: [Implied] Consent
North Carolina, and many states, have adopted a theory of implied consent whereby a person gives implied consent to search his breath or blood by choosing to drive on the roads. Based on recent U.S. Supreme Court and N.C. Supreme Court decisions, whether or not a driver has consented to a blood test [or breath test for that matter] is dependent on the individual facts and circumstances.
In 2016, the U.S. Supreme Court noted that while it had approved the general concept of implied-consent laws, “[t]here must be a limit to the consequences to which motorists may be deemed to have consent by virtue of a decision to drive on public roads.” Birchfield v. North Dakota, ____ U.S. ____ (2016). In it’s opinion the Birchfield Court noted “blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” The Court went on to say “[i]t is true that a blood test, ulike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise the police may apply for a warrant if need be.”
The N.C. Supreme Court has recently ruled that a law [20-16.2(b)] allowing the police to search the blood of an unconscious person suspected of DWI based on implied consent and without a warrant to be unconstitutional. State v. Romano, ___ N.C. ___ (2017). The Romano Court pointed out that a judge must undertake individual analysis of the voluntariness of consent based on the totality of the circumstances:
“[W]hether a consent to a search was in fact ‘voluntary’ . . . is a question of fact to be determined from the totality of all the circumstances.” Further, the State has the burden to prove that “consent was, in fact, freely and voluntarily given.” Consent is not voluntary if it is “the product of duress or coercion, express or implied.” A court’s decision regarding whether a suspect’s consent was voluntary is based on “a careful scrutiny of all the surrounding circumstances” and does not “turn on the presence or absence of a single controlling criterion.” “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness.”
(Emphasis added and internal citations omitted).
This analysis from the N.C. Supreme Court reminds us of the importance of arguing against valid consent based on the facts and circumstances of the individual case. “While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement.” McNeely.
Moreover, in the situation where the State says that an individual refused breath testing after being advised of their rights under N.C.G.S. § 20-16.2(a), and then later police say that the person consented to a blood draw, it is vital that they be re-advised of their rights under N.C.G.S. § 20-16.2(a). State v. Williams, 759 S.E.2d 350 (2014).
Attack 2: Disputing Testimony on Blood Evidence
The Confrontation Clause
The Confrontation Clause of the Sixth Amendment guarantees a defendant the right to confront and cross-examine his accusers. U.S. Const. amend VI. Testimonial statements of a witness who is absent from trial may be admitted only if the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36 (2004).
The U.S. Supreme Court has found that in order to introduce a lab report, the Confrontation Clause requires that the Defendant have the opportunity to confront the lab analyst. Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009) (“Forensic evidence is not uniquely immune from the risk of manipulation”). In authoring the opinion of the Court, Justice Scalia noted a “forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution. . . . Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Id. The Court did recognize the legitimacy of notice-and-demand statutes, which require the prosecution to provide notice of their intent to introduce lab results to the defendant and require the defendant to object to introduction of such results without the lab analyst who performed the testing within specific time frames.
North Carolina’s notice-and-demand statute is codified in N.C.G.S. 20-139.1.
More recently, the Supreme Court addressed analyst testimony in the context of a DWI. Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (“At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample.”)
The Bullcoming Court found that a surrogate analyst could not testify on behalf of the analyst who actually performed or observed the testing without violating the Confrontation Clause, unless the original analyst is unavailable and the defense had a prior opportunity to cross-examine that analyst. The U.S. Supreme Court gave the State a roadmap for how to introduce blood evidence without the original analyst: “[The State] could have avoided any Confrontation Clause problem by asking [a new certifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.”
North Carolina’s Supreme Court has grappled with application of the Confrontation Clause in light of the U.S. Supreme Court’s decisions in Crawford, Melendez-Diaz, and Bullcoming. The N.C. Supreme Court held that admission of an expert’s (certifying scientist’s) independent opinion based on inadmissible facts or data does not violate the Confrontation Clause. State v. Ortiz-Zape, 743 S.E.2d 156 (2013). The Court pointed out Justice Sotomayor’s argument that there is “a difference between a lab report certifying a defendant’s blood-alcohol level and ‘machine-generated results, such a a printout from a gas chromatograph.’ The former is the testimonial statement of a person and the latter is the product of a machine.” Ortiz-Zape, 743 S.E.2d at 162.
On the same day that Ortiz-Zape was issued, the N.C. Supreme Court held that a testifying analyst who gives “surrogate testimony” in lieu of his own independent opinion is a violation of the Confrontation Clause. State v. Craven, 744 S.E.2d 458 (2013). When a certifying scientist merely parrots the conclusions of the original analyst that performs testing, the Confrontation Clause is triggered.
Attack 3: Disputing the Handling of Blood Evidence
Chain of Custody
N.C.G.S. 20-139.1 speaks to the admissibility of a lab result and the way for the State to admit a proper chain of custody regarding such evidence. Attacks based on chain of custody may be available where there are large gaps between one link in the chain and the next or lack of clarity regarding the location of a blood vile during a link in the chain.
If you or someone you know has been charged with a crime, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact us at Minick Law, P.C. for a free consultation on your case.