State v. Romano, 369 N.C. 678 (Jun. 9, 2017)

The court held, in this DWI case, that in light of the U.S. Supreme Court’s decisions in Birchfield v. North Dakota (search incident to arrest doctrine does not justify the warrantless taking of a blood sample; as to the argument that the blood tests at issue were justified based on the driver’s legally implied consent to submit to them, the Court concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense”), and Missouri v. McNeely (natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant; exigency must be determined on a case-by-case basis), G.S. 20-16.2(b) (allowing blood draw from an unconscious person) was unconstitutional as applied to defendant because it permitted a warrantless search that violates the Fourth Amendment. An officer, relying on G.S. 20-16.2(b), took possession of the defendant’s blood from a treating nurse while the defendant was unconscious without first obtaining a warrant. The court rejected the State’s implied consent argument: that because the case involved an implied consent offense, by driving on the road, the defendant consented to having his blood drawn for a blood test and never withdrew this statutorily implied consent before the blood draw. It continued:

Here there is no dispute that the officer did not get a warrant and that there were no exigent circumstances. Regarding consent, the State’s argument was based solely on N.C.G.S. § 20-16.2(b) as a per se exception to the warrant requirement. To be sure, the implied-consent statute, as well as a person’s decision to drive on public roads, are factors to consider when analyzing whether a suspect has consented to a blood draw, but the statute alone does not create a per se exception to the warrant requirement. The State did not present any other evidence of consent or argue that under the totality of the circumstances defendant consented to a blood draw. Therefore, the State did not carry its burden of proving voluntary consent. As such, the trial court correctly suppressed the blood evidence and any subsequent testing of the blood that was obtained without a warrant.

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