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Admissibility of Blood Test After Refusal of Breath Test

Yesterday, the North Carolina Court of Appeals issued an opinion in the case State v. Shepley, which involved the issue of whether a blood sample taken from a DWI defendant pursuant to a search warrant (after the defendant refused a breath test) had to comply with the requirements of G.S. 20-16.2. The court of appeals held that it did not because the results were admissible under G.S. 20-139.1.

In Shepley, the officer saw the defendant riding his moped just before midnight. The defendant was wearing a bicycle helmet instead of DOT approved helmet and the taillight on the moped was not working, so the officer stopped the defendant. Upon approaching the defendant, the officer “immediately smelled a strong odor of alcoholic beverage on his breath.” The officer subsequently arrested the defendant for dwi and took him to the jail for breath testing. When they got to the jail, the defendant requested that a witness be present for the breath testing. However, when the witness got there, the defendant refused to submit to the breath test. The officer then obtained a search warrant to take a blood sample from the defendant, and then took the blood sample outside of the presence of the witness. The blood sample showed that the defendant had a BAC of 0.14.

The defendant was convicted in district court of DWI. On appeal, the defendant argued that the results of the blood draw should be suppressed because the requested witness was not present at the time of the blood draw. The court of appeals began its analysis of the defendant’s argument by examining the relevant North Carolina statute. G.S. 20-16.2 provides in part that

(a) Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. . . . Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst . . . or a law enforcement officer . . . who shall inform the person orally and also give the person a notice in writing that:

. . .

(6) You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives[.]. . .

(a1) Under this section, an “implied-consent offense” is an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense[.]. . .

. . .

(c) A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.

The court noted that it has previously stated that

During the administration of a breathalyzer test, the person being tested has the right to ‘call an attorney and select a witness to view for him the testing procedures.’ This statutory right may be waived by the defendant, but absent waiver, denial of this right requires suppression of the results of the breathalyzer test.

However, the statute is limited “to situations in which a defendant consents to take a breathalyzer or other test designated by the officer” because the statute specifically states that “no blood alcohol tests ‘may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.’”

Therefore, we must look at the statutory provision that governs blood draws when not performed under G.S. 20-16.2. This provision is G.S. 20-139.1. Subsection (a) states in part that

[i]n any implied-consent offense under G.S. 20-16.2, a person’s alcohol concentration . . . as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.

Next, the court reviewed the relevant caselaw regarding the relationship between G.S. 20-16.2 and G.S. 20-139.1. In the 1992 case State v. Drdak, the defendant similarly argued that the results of his blood test were not admissible because the blood draw was not done in accordance with the terms of G.S. 20-16.2. In that case, the defendant’s blood was tested at the hospital where the defendant was taken after being injured in a car accident. The defendant was not informed of his right to consent to or refuse the blood test under G.S. 20-16.2. The North Carolina Supreme Court held that the results of the blood test were admissible because G.S. 20-139.1(a)

allows other competent evidence of a defendant’s blood alcohol level in addition to that obtained from chemical analysis pursuant to N.C.G.S. §§ 20-16.2 and 20-139.1. . . . [I]t is the holding of this Court that the obtaining of the blood alcohol test results in this case was not controlled by N.C.G.S. § 20-16.2(a) and did not have to comply with that statute because the test in question is “other competent evidence” as allowed by N.C.G.S. § 20-139.1.

In a 2001 case, State v. Davis, the court of appeals relied on Drdak to uphold the admission of blood and urine tests taken from a defendant pursuant to a search warrant obtained after the defendant refused a breath test. The court of appeals stated in Davis that

Here the defendant was given the opportunity to voluntarily submit to the testing. He refused, and the officer obtained a search warrant based on probable cause. We hold that testing pursuant to a search warrant is a type of “other competent evidence” referred to in N.C.G.S. § 20-139.1. In a similar case our Supreme Court . . . [held that] “it is not necessary for the admission of such ‘other competent evidence’ that it be obtained in accordance with N.C.G.S. § 20-16.2.”

Based on the foregoing analysis, the court concluded in Shepley that “after defendant refused a breath test of his blood alcohol level, he was not entitled to have a witness present at the blood test performed pursuant to a search warrant.”

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