Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following. Missouri v. McNeely refresher. The United States Supreme Court held in McNeely that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. In so holding, the court rejected the state’s call for a categorical rule—based solely on the evanescent nature of alcohol—that would authorize warrantless blood draws over a defendant’s objection whenever an officer has probable cause to believe the defendant has been driving while impaired. The implied consent issue. Implied consent statutes authorize the gathering and chemical testing of breath, blood and urine from drivers suspected of driving while impaired. Testing under implied consent laws is carried out without a warrant. Suspects are advised of the penalties for refusing such testing, which always include a lengthy driver’s license revocation and, in a handful of states, include criminal prosecution. After that advisement, they are requested to submit to testing. Some states, like North Carolina, permit the warrantless testing of unconscious suspects who do not expressly acquiesce to such testing. Why McNeely [...]
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