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Still No Witness Required for Blood Draw Pursuant to Search Warrant

The past two days, we have discussed the North Carolina Court of Appeals opinion in the case State v. Roberts, issued Tuesday. But Roberts was not the only DWI case to come out of the court of appeals on Tuesday. In the case State v. Chavez, the defendant argued that he had a right to have a witness present when his blood was taken pursuant to a search warrant under G.S. 20-16.2.

Someone who closely follows the North Carolina Court of Appeals decisions (or someone who closely follows the posts on our website) might think that this sounds very familiar. Just last month, the court of appeals issued an opinion in the case State v. Shepley, which looked at whether a blood test taken from a defendant pursuant to a search warrant after the defendant refused the breath test had to comply with the requirements of G.S. 20-16.2 (namely, the requirement of having a witness present). In that case, the court of appeals held that the blood test did not have to comply with the requirements of G.S. 20-16.2 because the results were admissible under a separate statutory provision, G.S. 20-139.1.

The defendant in Chavez again argued that G.S. 20-16.2 required a witness to be present for the defendant’s blood draw although the court had previously rejected this argument. In addition, the defendant argued that the failure to be permitted to have a witness present was a constitutional violation. The court rejected this argument, holding that the blood draw did not violate the defendant’s constitutional rights.

In Chavez, the defendant was involved in a car accident. After being involved in the accident at 2:46 a.m., the defendant called his wife, who was an attorney, but she was out of state. An officer arrived at the scene of the accident, and after investigating, arrested the defendant for impaired driving. At this time, 3:10 a.m., the passenger in the defendant’s car made another call to the defendant’s wife letting her know that he had been arrested. The defendant’s wife called around, trying to obtain a witness for the defendant. At 3:20 a.m., the defendant was informed of his rights regarding the breathalyzer. He again called his wife. At 4:02 a.m., the defendant’s wife spoke with another lawyer and asked her to be the defendant’s witness. Just minutes after this, the defendant twice refused to submit to a breathalyzer. At 4:14 a.m., a warrant was issued to obtain a blood sample from the defendant. Six minutes later, the lawyer contacted by the defendant’s wife arrived at the jail and was informed she was too late to witness the breath test. The defendant’s blood was drawn at 4:34 a.m.

On appeal, the defendant argued that he “had his rights violated when his attorney witness was not allowed to observe the blood draw and his condition even though she arrived before the blood draw had occurred.” The defendant based his argument both on a statutory violation and a violation of his constitutional rights. The defendant’s argument relied on the fact that his witness was present prior to the time of the testing, so the testing would not have been delayed for a witness to be present.

The court rejected this argument stating that the “[d]efendant had no constitutional right to have a witness present for the execution of the search warrant, which in this situation was performing a blood test,” and therefore, “the timing of [the witness’s] arrival is irrelevant to the issue defendant has presented on appeal.”

Moving on to the alleged statutory violation, the court rehashed its analysis in prior cases. Under G.S. 20-16.2(a), a person arrested for dwi must be notified of certain rights prior to the administration of a breath test. One of these rights is that the person “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.”

However, the North Carolina Supreme Court in State v. Drdak (1992) noted the provision in G.S. 20-139.1(a) which states that

In any implied-consent offense under G.S. 20-16.2, a person's alcohol concentration or the presence of any other impairing substance in the person's body 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.

The Court in Drdak stated that

Basically, the defendant’s constitutional arguments must fail because of defendant’s flawed contention that the State is limited to evidence of blood alcohol concentration which was procured in accordance with the procedures of N.C.G.S. §20–16.2. This defective argument results from the failure of the defendant to recognize the other competent evidence clause provided in N.C.G.S. § 20–139.1(a). We hold that none of the constitutional rights of the defendant have been violated.

In the 2001 case State v. Davis, the court of appeals cited Drdak and stated that “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 Davis, the court ultimately concluded that the officers had complied with the requirements of G.S. 20-16.2. However, the court in Chavez determined that it was unnecessary to determine compliance with these requirements in the current case. The Chavez court then cited last month’s case, Shepley, noting that

because defendant’s blood was drawn pursuant to a search warrant obtained after he refused a breath test of his blood alcohol level, [defendant] did not have a right under N.C. Gen. Stat. § 20-16.2 to have a witness present.

The court then concluded that

As defendant’s blood draw was performed pursuant to a valid search warrant, we conclude that the trial court properly denied defendant’s motion to suppress the blood evidence and to dismiss the impaired driving charge.

Will we see another one of these cases in another month? We will have to wait and see…

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