Sec. 20-16.2(b) purportedly allowed an officer to obtain blood from an unconscious person without the requirement that the officer first get a warrant.

That provision was struck down last week in State v. Romano, in which an officer obtained excess blood drawn from a patient/DWI suspect at the hospital without having first gotten a warrant.

It is true, as the State contends, that this Court has affirmed the use of N.C. Gen. Stat. § 20-16.2(b) to justify warrantless blood draws of unconscious DWI defendants. See State v. Hollingsworth, 77 N.C. App. 36, 334 S.E.2d 463 (1985); see also State v. Garcia-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993). However, these cases did not have the benefit of the United States Supreme Court’s guidance in McNeely, which sharply prohibits per se warrant exceptions for blood draw searches.

Missouri v. McNeely dealt with an attempt by police in Missouri to introduce evidence of a chemical analysis at a DWI trial where that evidence had been gathered without the consent of the driver, and without a warrant. The Supreme Court ruled that, absent a showing of exigent circumstances, the state could not admit the evidence of the blood result at trial without first showing that a warrant had been properly obtained.

Romano effectively strikes down the all-purpose provision in 20-16.2(b) that provides that the state may take and admit the results of a blood draw without a warrant where the driver is unconscious. The state must show exigent circumstances.

Damon Chetson - 1008 posts

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.

Search and Seizure