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Robert Gilmore is an experienced Sampson County lawyer handling Criminal Defense, DWIs, Traffic, and Personal Injury.

Sampson County Criminal Law Blog

Sampson County attorney Robert Gilmore provides information and insight about North Carolina criminal law.

DWI and Blood Draws: An Evolving Landscape

When a person is being investigated for driving while impaired, law enforcement will typically ask the person to submit to a chemical analysis of their breath or their blood.  Often, the test is a breath test on an Intoxilyzer machine at the police station.  However, in cases of suspected drug impairment, officers will ask for blood tests to determine whether there are any controlled substances in the person’s blood stream that would cause them to be impaired.

Until 2013, it was freely held in North Carolina in courts across the State that an officer could procure a Defendant’s blood without a warrant in the event of exigent circumstances.  These circumstances were deemed to exist at almost any time due to the natural dissipation of blood, thereby evidence, in the blood stream.  In 2013, the United States Supreme Court issued a groundbreaking decision in Missouri v. McNeely that stated such a per se (or automatic) finding was inappropriate.  Further, in Birchfield v. North Dakota, the Court found that the warrantless drawing of a defendant’s blood could not be sustained as a search incident to arrest.  In most scenarios, these cases stand for the idea that an officer must get consent or a search warrant to draw a defendant’s blood in a DWI arrest, or the blood drawn must be suppressed.

Several issues remain in this area.  For instance, in North Carolina, the “rights” form when notifying a defendant of his rights involving a chemical analysis still refers to the fact that if he refuses to consent, it can be admissible, presumably as an inference of guilt, in a criminal case.  No other area of the law allows such an inference when a Defendant does not consent to a search where there is an important privacy interest such as the drawing of blood.  Therefore, there are issues underlying not only the admission of the refusal, but also the voluntariness of Defendant’s consent, if he gives it, under the threat of the refusal being used against him in court.

On the search warrant front, an attorney should review the back of any standard search warrant used for blood draws in these cases.  Sometimes, officers will quickly fill out these “form” warrants, checking appropriate boxes, but not providing a factual basis within the four corners of the warrant to sustain probable cause for a neutral and detached magistrate to issue the warrant.  Failure to do so can result in the suppression of any blood result gathered as a result of the warrant.

Consequently, the use of blood draws in a DWI case are an evolving landscape.  Some lawyers, even those that represent themselves as criminal practitioners, do not understand or search for these issues.  Failure to do so could result in you or a loved one pleading to a DWI where the State does not have sufficient evidence to convict.  Choose wisely when hiring a lawyer to handle your DWI blood draw case. If your case is outside of our geographical area, we will refer you to a lawyer in your area that can handle these issues competently.