Hospitalization of DWI Suspect Does Not Create Per Se Exigency Justifying Warrantless Blood Draw

The Chatham County sheriff’s deputy who arrested Ronald McCrary in Siler City for impaired driving at 7:34 p.m. on December 28, 2010 decided that if McCrary was taken to the hospital, he would obtain a sample of his blood without a warrant. McCrary was in fact taken to a nearby hospital—at his insistence—where he refused to cooperate with the medical staff and refused to consent to the withdrawal of his blood. Once the hospital discharged McCrary at 9:13 p.m., several officers restrained him while hospital staff withdrew his blood. Was the blood draw legal?  Background. Following the United States Supreme Court’s determination in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013), that the natural dissipation of alcohol does not, by itself, create a per se exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement, courts across the country have been called upon to examine the circumstances that do constitute such an exigency. The North Carolina Court of Appeals recently determined in State v. Granger, __ N.C. App. __ (2014), that exigent circumstances justified the warrantless withdrawal of a defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant, and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital. State v. McCrary differs from Granger. The defendant in McCrary was arrested nearly an hour after he last drove.  In Granger, officers responded to [...]