Voluntary Blood Draw and Implied Consent Rights

The North Carolina Court of Appeals capped off 2014 by issuing a number of opinions. Among them was State v. Sisk, which involved a defendant convicted of habitual impaired driving and challenging the admissibility of his blood test results.

In Sisk, the defendant was driving a motor home around 5:10 p.m. A trooper on patrol was headed the opposite direction and observed the defendant veer into the trooper’s lane and then return to his own lane. The trooper turned around and activated his blue lights. When the trooper caught up to the defendant, the defendant turned into a convenience store parking lot and drove the motor home through a car wash stall, which minorly damaged the stall and the motor home. The trooper got out of his car and approached the defendant, who stumbled against the motor home after exiting it. The trooper observed that the defendant smelled strongly of alcohol, had slurred speech and was unsteady on his feet. He also noticed that there were several beer cans on the floor of the front of the motor home. He then arrested the defendant for driving while impaired.

The trooper took the defendant to the intoxilyzer room at the jail, where the defendant was read his rights and notified of his implied consent rights. The defendant “stated that he would not take a breath test, but that he would give a blood test[.]” When the defendant refused a breath test for the second time, the trooper told him that he would be taken to the hospital for a blood test and the defendant said “[o]kay.”

At the hospital, the defendant made no comment or objection when informed by the technician that his blood was to be drawn. Instead, he “offered his arm out, and [the technician] took a blood sample from his left arm.” The blood test showed that his BAC was 0.16. The defendant was later convicted of habitual impaired driving and being a habitual felon. He was sentenced to between 117 and 153 months imprisonment.

On appeal, the defendant argued that the results of his blood test were improperly admitted at trial because the trooper did not readvise him of his implied consent rights before the blood draw and violated G.S. 20-16.2 and G.S. 20-139.1(b5). The court of appeals disagreed.

The court began its analysis by examining the relevant statute. G.S. 20-16.2(a) states in part that

Basis for Officer to Require Chemical Analysis; Notification of Rights. - 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.

...

(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.

G.S. 20-139.1(b5) states in part that

[a] person may be requested . . . to submit to a chemical analysis of the person’s blood . . . in addition to or in lieu of a chemical analysis of the breath, 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).

In arguing that the trooper should have readvised him of his results prior to the blood draw, the defendant relied on a court of appeals case from earlier this year, State v. Williams. In Williams, the defendant was given a copy of his implied consent rights, which he was read and then signed. The defendant then refused to submit to a breath test. Before administering the blood test, the officer gave the defendant a second consent form but did not readvise him of his rights. The court in Williams held that the blood test results were inadmissible because the officer failed to readvise the defendant of his implied consent rights prior to the blood draw. The court in Williams reasoned that “[w]here a defendant refuses to take a breath test . . . the State may then seek to administer a different type of chemical analysis such as a blood test pursuant to [N.C. Gen. Stat. § 20-139.1(b5).]” However, “the State was required, pursuant to the mandates of [N.C. Gen. Stat.] § 20–16.2(a) and as reiterated by [N.C. Gen. Stat.] § 20-139.1(b5), to re-advise defendant of his implied consent rights before requesting he take a blood test.”

The court in Sisk distinguished Williams by noting that the defendant in Sisk volunteered to take the blood test. The court noted that G.S. 20-139.1(b5) is triggered when “a subsequent chemical analysis is requested pursuant to this subsection.” Therefore, “[b]ecause the prospect of Defendant submitting to a blood test originated with Defendant — as opposed to originating with [the trooper] — we are satisfied that Defendant’s statutory right to be readvised of his implied consent rights was not triggered.” The court then concluded that the trial court did not err in admitting the results of the defendant’s blood test.

If you have been arrested for DWI, visit www.rflaw.net for legal help.