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Does A Cop Have To Get A Warrant To Take My Blood?

Posted by Christopher Shumate | Apr 22, 2016 | 0 Comments

On April 19, 2016, The North Carolina Court of Appeals held the warrantless taking of blood from a DWI suspect violates the 4th amendment, despite North Carolina law permitting the officer's action. See State v. Romano, __ N.C. App. __ (2016).  

In Romano, Police responded to a call for service indicating the suspect (wearing a gray sweatshirt backwards) stopped his SUV in the street, exited his vehicle, and walked behind a restaurant with a liquor bottle.  Upon arriving, Police found the vehicle registered to the Defendant in the road.  The engine was not running, though the hood was warm.  The Defendant was located behind the restaurant drinking a bottle of liquor.  He was covered in vomit.  

The officers placed the Defendant in handcuffs quickly due to his demeanor.  They noted red / glassy eyes, a strong odor of alcohol, and slurred speech.  A PBT test was positive.  The officers terminated standardized field sobriety testing because Mr. Romano was belligerent.  

The officers transported Mr. Romano the hospital.  He remained belligerent, so the medical personal administered a sedative to perform treatment.  A nurse withdrew a vial of blood for medical purposes.  The nurse withdrew a second vial of blood as she knew Mr. Romano had been arrested for DWI.  Upon confirming the Defendant was unconscious, the Sergeant accepted the second vial of blood from the nurse. 

At trial, Mr. Romano made a motion to suppress the blood.  The trial court concluded no exigency existed to justify the warrantless search, granting the Defendant's motion.  The court noted: several officers were present, the warrant application is a fill-in-the-blank form, the process is not time-consuming, and the magistrate's office was close to the hospital.  The trial court concluded N.C.G.S. 20-16.2(b) as applied was inconsistent with Missouri v. McNeely 133 S.Ct. 1552 (2013).  McNeely holds that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every DWI case to justify a warrantless, nonconsensual blood draw.  The District Attorney appealed .

The North Carolina Court of Appeals noted the Sergeant did follow the statutory requirements to obtain Mr. Romano's consent to a chemical analysis.  She failed to advise his rights, and she failed to obtain his consent to withdraw / test his blood.  The State argued N.C.G.S. 20-16.2(b) allows an officer to take a suspects blood without advising such rights or obtaining such consent if the suspect is unconscious or incapable of providing consent.  This argument has worked prior, but the Court noted McNeely has since sharply prohibited per se warrant exceptions for blood draw searches.  Simply put, the State failed to meet its burden to show the exigencies in Romano's case justified taking his blood without a warrant.  

This is an important ruling from the North Carolina Courts.  If you are facing a DWI in Charlotte, North Carolina, please ensure you obtain legal representation from an experienced criminal defense attorney.  

About the Author

Christopher Shumate

Mr. Chris Shumate is a native of Gastonia, North Carolina, and worked various jobs while pursuing his undergraduate and Juris Doctor education, including several heavy manual labor and skilled trade positions. In his practice, Mr. Shumate often encounters circumstances where these prior experiences are helpful in representing you. Upon graduating law school from the University of South Carolina, Mr. Shumate joined one of the Carolinas' larger defense firms, where he represented a diverse set of employers and insurance companies in civil cases and workers' compensation claims across the Carolinas. Chris utilized this experience to obtain a working knowledge of the insurance industry, and build personal contacts used today in representing you. Mr. Shumate ultimately decided he wanted to focus his law practice on assisting those who have been injured, and doing so with the focus on a personal relationship that is uncommon in the bigger firms. Mr. Shumate's also has a passion for assisting those facing the challenges of the criminal legal system. By representing individuals in a variety of criminal and traffic matters, Mr. Shumate works to achieve the best possible result for each client regardless of the charges levied by the prosecution. Chris has tirelessly pursued his mission of helping people from all walks of life throughout the Carolinas with a variety of legal matters. If you are interested in learning more about Chris Shumate and The Shumate Law Offices, please contact us at 704.371.5059. We look forward to assisting you to achieve a positive result in your legal concern. Education J.D., University of South Carolina B.S., University of South Carolina Jurisdictions Admitted to Practice N.C. State BarS.C. State BarU.S. District Court Western District of North Carolina Professional & Bar Association Memberships N.C. Bar Association S.C. Bar Association Mecklenburg County Bar N.C. Academy Of Trial Lawyers American Association For Justice

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