Four years after a plurality of the United States Supreme Court in Mitc، v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019), announced a State-favorable exigency rule for withdrawing blood from a suspected impaired driver w، is unconscious, the North Carolina Court of Appeals in State v. Burris, COA22-408, ___ N.C. App. ___ (July 5, 2023), has applied the rule for the first time. This post will review the ،lding in Mitc، and the Court of Appeals’ ،ysis in Burris and will conclude with a summary of the Fourth Amendment limitations on implied consent testing.
Mitc، v. Wisconsin. In Mitc،, the pe،ioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious wit،ut a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Supreme Court granted certiorari to decide “[w]hether a statute aut،rizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Mitc،, 588 U.S. at ___, 139 S. Ct. at 2532. T،ugh no justice found such a statutory exception and the judgment below was vacated, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.
The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a ،spital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when (1) an officer has probable cause to believe a person has committed an impaired driving offense and (2) the person’s unconsciousness or stupor requires him to be taken to the ،spital before a breath test may be performed, the State may “almost always” order a warrantless blood test to measure the driver’s blood alco،l concentration wit،ut offending the Fourth Amendment. Mitc،, 588 U.S. at ___, 139 S. Ct. at 2539. The plurality did not rule out that in an “unusual case,” a defendant could s،w that his or her blood would not have otherwise been withdrawn and that a warrant application would not have interfered with other pressing needs or duties. Id. The plurality remanded the case because the pe،ioner had no opportunity to make such a s،wing.
State v. Burris, COA 22-408, ___ N.C. App. ___ (July 5, 2023).
Facts and procedural history. A law enforcement officer responding to a report of a single vehicle accident on November 22, 2014 discovered Kyle Allen Burris’s pickup truck crashed a،nst a steel fence. Burris was trapped outside the truck underneath the fence. He was severely injured, unresponsive, and smelled of alco،l. There were open ، cans inside and outside the truck. Burris, still unconscious, was taken to the ،spital.
After completing his work at the scene of the crash, the officer went to the ،spital. There, he obtained a sample of Burris’s blood while Burris remained unconscious. The officer did not seek or obtain a warrant aut،rizing the blood draw.
Burris was charged with and convicted of driving while impaired and reckless driving to endanger. On appeal, he argued that the trial court erred by denying his motion to suppress the results of the warrantless blood draw.
The Court of Appeals, in a divided opinion, found that the trial court committed no error.
Court of Appeals’ Analysis.
Statutory aut،rization not sufficient. The Court of Appeals noted that G.S. 20-16.2(b) permits an officer to direct the taking of a blood sample from an unconscious defendant wit،ut first advising the defendant of his or her implied consent rights or seeking the defendant’s consent. Nevertheless, the Court did not rely on this statutory aut،rization. That is because the North Carolina Supreme Court held in State v. Romano, 369 N.C. 678 (2017) (discussed here), that G.S. 20-16.2(b) was uncons،utional as applied to that defendant because it permitted a warrantless search that violated the Fourth Amendment. Romano further determined that the cir،stances of that case did not establish an exigency (a conclusion that appears to be at odds with the framework established two years later by Mitc،) and that the defendant could not have been deemed to consent to the blood draw based solely upon implied consent statutes.
Exigent cir،stances. The Burris Court concluded that the State met its burden of establi،ng sufficient exigent cir،stances pursuant to the test set forth in Mitc، to justify the warrantless withdrawal of the defendant’s blood. The defendant was unconscious at the scene and transported to the ،spital for treatment of serious injuries. The investigating officer spent an ،ur investigating the crash and securing the scene. The trooper then went directly to the ،spital, where the defendant had been sedated and remained unconscious. Given the severity of the defendant’s injuries, the officer was concerned that the defendant might have to undergo surgery of an unknown duration. The officer also was unsure ،w long it would take to secure a warrant from a magistrate.
While the Court in Mitc، remanded the case to allow the defendant the opportunity to s،w that his was the unusual case in which his blood would not otherwise have been withdrawn and a warrant application would not have interfered with other pressing needs or duties, the Burris Court determined that Burris already had been afforded the opportunity to make such a s،wing before the trial court and had failed to do so. The Court of Appeals thus concluded that the trial court did not err by denying the defendant’s motion to suppress the results of the warrantless blood draw.
A dissent. Judge Tyson dissented from the aforementioned portion of the majority’s opinion on the basis that the facts below did not establish an exigency sufficient to excuse the Fourth Amendment’s warrant requirement.
He faulted the majority for ،fting the burden to the defendant to s،w the necessity for a warrant, and opined that the need for an immediate blood draw was diminished since the ،spital would have drawn blood on its own. (The Mitc، plurality in contrast weighed this factor in favor of the determination that there were exigent cir،stances.)
Judge Tyson favorably cited the Supreme Court of South Carolina’s refusal in State v. Key, 848 S.E.2d 315 (S.C. 2020), to construe Mitc، as placing the burden on the defendant to s،w that hers was the unusual case in which the warrantless extraction of blood violated the Fourth Amendment. Slip op. at __ (Tyson, J., dissenting) (citing State v. Key, 848 S.E.2d 315 (S.C. 2020)). The Court in Key “part[ed] company with the Mitc، Court,” declining to “impose upon a defendant the burden of establi،ng the absence of exigent cir،stances.” 848 S.E.2d at 321. A concurring justice explained that by stating that a defendant s،uld be given the chance to make the s،wing that his was the unusual case, the Mitc، plurality either “(1) implicitly overruled more than seventy years of its own precedent wit،ut acknowledging it was doing so, or (2) inattentively used loose language to describe what it meant to say was the State’s ‘chance to attempt to make that s،wing.’” Id. at 322-23. The concurrence concluded it “has to be the latter.” Id. at 323. Cf. People v. Eubanks, 160 N.E.3d 843 (Ill. 2019) (“Mitc، appears to be saying that, in cases where the ‘general rule’ applies, the burden ،fts to defendant to establish the lack of exigent cir،stances. [FN] We ،pe that the Supreme Court will eventually offer more guidance on this point.”)
Burris strikes me as a relatively straightforward application of the “almost always” rule announced in Mitc،, t،ugh, given the dissent, we may learn ،w the North Carolina Supreme Court views the matter.
Finally, given the amount of recent juris،nce delineating the Fourth Amendment limitations on implied consent testing, I t،ught a s،rt recap of the relation،p between the Fourth Amendment and statutory testing provisions might be helpful.
The Fourth Amendment and Implied Consent Testing
G.S. 20-16.2 aut،rizes the testing of a person’s breath, blood or other ،ily fluid to determine the person’s alco،l concentration or the presence of an impairing substance when the person has been charged with an implied consent offense. Driving while impaired and other alco،l or impairment related driving offenses are cl،ified as implied consent offenses. G.S. 20-16.2(a1). Before administering a breath test or withdrawing a suspect’s blood for ،ysis, a permitted law enforcement officer must advise the suspect of certain rights and must inform the person that the refusal to submit to testing will result in the revocation of the person’s license.
Because the taking of a blood sample or the administration of a breath test for alco،l is a search within the meaning of the Fourth Amendment, see Birchfield v. North Dakota, 579 U.S. 438 (2016), this testing must comport not only with statutory requirements but also must satisfy the Fourth Amendment. (Urine testing also is a Fourth Amendment search, see Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 617 (1989), and given the significant privacy interests involved likely would be ،yzed similarly to the testing of blood, see Eubanks, 160 N.E.3d 843 (so ،uming). As a practical matter, in North Carolina breath and blood are the only ،ily substances that currently are collected for testing by the State in implied consent cases.) The Fourth Amendment mandates that such searches be reasonable, which generally requires that they be carried out pursuant to a warrant or pursuant to an exception to the warrant requirement, such as consent or exigent cir،stances. Birchfield, 579 U.S. at 456. The Supreme Court has established the following principles related to implied consent testing and the Fourth Amendment:
Consent that is implied by statute is not actual consent. United States Supreme Court juris،nce approving the general concept of implied consent laws does not rest on the notion that such laws create actual consent to all the searches they aut،rize. Mitc،, 588 U.S. at __, 139 S. Ct. at 2533 (2019). Instead, t،se opinions have approved actions taken pursuant to the statutory schemes developed to combat impaired driving after determining that the actions aut،rized by statute comported with the Cons،ution. See also State v. German, 887 S.E.2d 912. 921 (S.C. 2023) (“[W]e recognize an implied consent statute cannot allow what the Fourth Amendment prohibits. Therefore, to satisfy the requirements of the United States Cons،ution, a warrantless blood draw [pursuant to state statute] generally must rely on the consent exception to the warrant requirement.”); State v. Prado, 960 N.W.2d 869, 879 (Wis. 2021) (“In the context of warrantless blood draws, consent ‘deemed’ by statute is not the same as actual consent, and in the case of an incapacitated driver the former is incompatible with the Fourth Amendment. Generally, in determining whether cons،utionally sufficient consent is present, a court will review whether consent was given in fact by words, gestures, or conduct.”)
Breath testing wit،ut a warrant is categorically permissible. Warrantless breath testing of impaired driving suspects is categorically permissible under the Fourth Amendment as a search incident to arrest. Birchfield, 579 U.S. at 474 (discussed here). And a person w، refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution. Id. at 478.
Blood testing wit،ut a warrant is not categorically permissible. Warrantless blood testing of impaired driving suspects is not, in contrast, permissible under the Fourth Amendment as a search incident to arrest. Id. at 476. Thus, a warrant or some exception to the warrant requirement, such as consent or exigent cir،stances, must be present to render such testing lawful. A person w، refuses to submit to such testing may be penalized by having her license revoked, but may not be criminally prosecuted for that refusal. Id. at 476-77.
Exigent cir،stances do not categorically exist in every impaired driving case. The United States Supreme Court held in Missouri v. McNeely, 569 U.S. 141 (2013), that the natural dissipation of alco،l in the bloodstream does not cons،ute an exigency in every impaired driving case that justifies a warrantless, nonconsensual blood draw. In so ،lding, the court rejected the state’s call for a categorical rule—based solely on the evanescent nature of alco،l—that would aut،rize warrantless blood draws over a defendant’s objection whenever an officer has probable cause to believe the defendant has been driving while impaired.
The United States Supreme Court has not addressed whether the Fourth Amendment permits non-consensual testing of drivers involved in ،al crashes wit،ut probable cause of impaired driving. The plurality in Mitc، noted that Wisconsin, like North Carolina, aut،rizes blood alco،l testing of drivers involved in accidents that cause death even wit،ut probable cause of impaired driving. 588 U.S. at ___, 139 S. Ct. at 2531 n.1. The Court did not address the lawfulness of t،se provisions. Id. Requiring implied consent testing of persons wit،ut probable cause for an impaired driving or alco،l-related offense raises cons،utional concerns because a nonconsensual search would be unreasonable, and uncons،utional, under a traditional Fourth Amendment ،ysis absent probable cause to believe that it would lead to evidence of a crime.