The North Carolina Court of Appeals decided yesterday that when a law enforcement officer wants to administer multiple chemical analysis tests to a person suspected of impaired driving, the officer must advise the person of his implied consent rights prior to administering each new test.
In State v. Williams, an officer was called to the scene of an accident in Ocracoke Island at 8:41 p.m. When he arrived, he found the defendant standing next to a golf cart and a body lying in front of the golf cart. The defendant admitted that he had been driving the golf cart, and he exhibited signs of impairment – he had red, glassy eyes and smelled strongly of alcohol. The defendant also admitted to drinking six beers earlier in the day, and the portable breath test gave a positive result. The defendant was arrested and taken to the sheriff’s intoxilyzer room.
The law enforcement officer read the defendant his implied consent rights and gave him a copy, which he signed. After thirty minutes, the officer asked the defendant to submit to a breath test and he refused. The officer then asked for a blood testing kit. He did not re-read the implied consent rights, but he did give defendant a copy of the consent to sign. A paramedic then took the defendant’s blood for testing.
The defendant filed various motions to suppress, which included a motion to suppress the results of the blood test. The trial court granted this motion of the defendant. On the appeal of the case to the Court of Appeals, the State argued that the trial court granted this motion in error because even though the officer did not reread the defendant his implied consent rights before administering the blood test, the defendant signed a consent form.
G.S. 20-16.2(a) states that
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. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.
Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:
(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 by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.
(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 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.
When the officer first sought to administer the breath test to the defendant, he properly complied with the statute – orally informing the defendant and then giving him a notice in writing of his implied consent rights. After the defendant’s refusal to submit to the breath test, North Carolina statute permitted the officer to administer another chemical analysis test. G.S. 20-139.1(b5) states that
A person may be requested, pursuant to G.S. 20-16.2, to submit to a chemical analysis of the person’s blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of the breath, in the discretion of a law enforcement officer; except that a person charged with a violation of G.S. 20-141.4 shall be requested to provide a blood sample in addition to or in lieu of a chemical analysis of the breath. However, if a breath sample shows an alcohol concentration of .08 or more, then requesting a blood sample shall be in the discretion of a law enforcement officer.If a subsequent chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied consent rights in accordance with G.S. 20-16.2(a). A person’s willful refusal to submit to a chemical analysis of the blood or other bodily fluid or substance is a willful refusal under G.S. 20-16.2. If a person willfully refuses to provide a blood sample under this subsection, and the person is charged with a violation of G.S. 20-141.4, then a law enforcement officer with probable cause to believe that the offense involved impaired driving or was an alcohol-related offense made subject to the procedures of G.S. 20-16.2 shall seek a warrant to obtain a blood sample. The failure to obtain a blood sample pursuant to this subsection shall not be grounds for the dismissal of a charge and is not an appealable issue.
In reviewing the applicable statutes, the court stressed that G.S. 20-139.1(b5) required that “[i]f a subsequent chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied consent rights in accordance with G.S. 20-16.2(a),” which requires “inform[ing] the person orally and also giv[ing] the person a notice in writing” of his implied consent rights.
The State argued that the statutory violation was ““technical and not substantial and the defendant has shown no prejudice” because defendant had been advised of his implied consent rights as to the breath test “less than an hour before the blood test.”” The court rejected this argument reasoning that “[s]tatutes imposing a penalty are to be strictly construed[,]” and that “[a] failure to advise cannot be deemed a mere technical and insubstantial violation.”
If you have been charged with impaired driving, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450.