Warrantless Blood Draw in North Carolina

The North Carolina Court of Appeals issued an opinion today dealing with the topic of warrantless blood draws. The case, State v. Granger, is only the second court of appeals case on this topic since last year’s U.S. Supreme Court case Missouri v. McNeely, which held that the dissipation of alcohol in the bloodstream does not create an exigency in every case so as to justify a warrantless blood draw. In today’s case, the court of appeals held that exigent circumstances existed when the defendant was involved in an accident and taken to the hospital and obtaining a warrant would have created a delay between the time of the accident and the time of the blood draw of about an hour and a half.

First, let’s review McNeely. In that case, the defendant was stopped for speeding and crossing the centerline. The officer administered several field sobriety tests, although the defendant refused to blow into the portable breath test, and based on the defendant’s performance, he was placed under arrest. On their way to the police station, the defendant said that he would refuse to submit to a breath test, so the police officer took him instead to the hospital where a blood sample was taken. The police officer did not have a warrant for the blood draw. The U.S. Supreme Court held that a warrantless blood draw “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case” and to determine whether exigent circumstances exist so as to permit a warrantless blood drawn, a totality of the circumstances must be considered on a case-by-case basis.

In December, the North Carolina Court of Appeals looked at its first warrantless blood draw case since the U.S. Supreme Court’s McNeely decision. State v. Dahlquist involved a fairly routine checkpoint stop, during which the officer noticed an odor of alcohol and the defendant admitted to drinking several beers. The defendant failed the administered field sobriety tests and was placed under arrest. At the mobile blood alcohol test site, the defendant refused to submit to a breath test so he was taken to the hospital, where a nonconsensual warrantless blood draw was performed. The court of appeals first acknowledged McNeely’s rule that the dissipation of alcohol alone does not create exigent circumstances. However, in this case, the officer guessed from his experience that on a weekend night it would have taken between 4 and 5 hours to obtain a warrant had he gone to the magistrate’s office compared to a probable one hour wait at a hospital for a blood draw. The court of appeals held that these facts created an exigency which permitted the warrantless blood draw. However, the court noted that a better practice than relying on previous experience was to call the magistrate’s office and the hospital for an estimated wait time on that specific night. Furthermore, the court stated that officers are encouraged to use the procedures in the statute amended in 2005 which permit them to submit testimony in support of a search warrant by videoconference.

Which brings us to today’s case, Granger. In Granger, the defendant rear-ended another vehicle around 2:19 a.m. The police officer who responded to the report of the accident noticed that the defendant was in pain as well as “a moderate odor of an alcoholic beverage coming from his person.” Because of the injuries sustained by the defendant in the accident, he was taken to the hospital before the officer performed any sobriety checks. The police officer went to the hospital where he observed that the defendant had “bloodshot and glassy eyes.” At the hospital, the defendant also admitted to drinking. Shortly after 3:00 a.m., the police officer performed two portable breath tests on the defendant, both of which were positive for alcohol. Because the defendant was in a hospital bed, the police officer was limited as to the types of sobriety tests he could administer. He administered the horizontal gaze nystagmus test, which the defendant failed, and he administered the alphabet and counting tests, which the defendant passed.

Based on the results of the sobriety tests, the police officer determined that there was probable cause to draw a blood sample from the defendant. At 3:10 a.m., the officer read the defendant his implied consent rights. There was not a nurse available to draw the blood until 3:50 a.m., at which time the officer requested that the defendant submit to a blood test. The defendant refused, and the officer had the nurse take the blood sample without a warrant.

The officer testified that he did not obtain a warrant because he was alone at the hospital with the defendant and would have had to wait for another officer to come watch the defendant while he drove to the county jail. Then he would have had to drive to the jail, which was 20 minutes away. Furthermore, an hour had already elapsed since the time of the accident.

In its analysis, the court of appeals noted the U.S. Supreme Court’s holding in McNeely stating that

while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, . . . it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

The court then looked back at the Dahlquist holding which stated that under McNeely “the question for this Court remains whether, considering the totality of the circumstances, the facts of this case gave rise to an exigency sufficient to justify a warrantless search.”

Finally, the court held that the trial court made sufficient findings to support the conclusion that exigent circumstances existed to justify a warrantless blood draw. Specifically, the officer had “knowledge of the approximate probable wait time” and “time needed to travel” to the county jail as being 40 minutes round trip, after the already one-hour period of time which had elapsed from the time of the accident. In addition, because the defendant was involved in an accident which left him in considerable pain, there was a concern that if the officer left the defendant unattended or waited longer to obtain a blood sample, the defendant might receive pain medication which would contaminate the blood sample.

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