Implied Consent

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New case on Implied consent and and how it relates to breathalizers and blood test.  Thank you to Shea Denning from the NCSOG for the post.

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

• Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
• Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

Three cases were consolidated for oral argument and decision in Birchfield.
Blood test refusal. In Birchfield v. North Dakota, the defendant was arrested for driving while impaired.  The officer advised him that North Dakota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Birchfield refused to let his blood be drawn. He was thereafter prosecuted for his refusal, a misdemeanor crime. The North Dakota Supreme Court affirmed his conviction.
Breath test refusal. In Bernard v. Minnesota, the defendant was arrested for driving while impaired.  The officer advised him that Minnesota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Bernard refused to submit to a breath test. He was prosecuted criminally for his refusal. Because he had four prior impaired driving convictions, Bernard’s refusal was punishable by up to seven years imprisonment. The Minnesota District Court dismissed the charges on the basis that warrantless breath testing was not permitted under the Fourth Amendment.  The state court of appeals reversed, and the state supreme court affirmed the court of appeals.
Blood test with consent. In Beylund v. Levi, the defendant was arrested for driving while impaired and was taken to a hospital.  There he was informed that under North Dakota law, he was required to submit to chemical testing and that failure to do so was a crime. Beylund agreed have his blood drawn and analyzed. Because the resulting alcohol concentration revealed a blood alcohol concentration of 0.25, Beylund’s license was suspended for two years.  He appealed from the suspension, arguing that he did not voluntarily consent to the search, but only did so to avoid criminal prosecution for refusing. The North Dakota Supreme Court rejected Beylund’s argument.
Though their circumstances differed, each petitioner’s claim rested on his assertion that the criminal law cannot compel a person to submit to chemical testing unless a warrant is issued authorizing such testing.
Permissible search incident to arrest?  Writing for the majority, Justice Alito first considered whether the chemical testing of an impaired driving suspect’s breath or blood could be carried out as a warrantless search incident to arrest. The Court explained that the authority to search a person incident to arrest was a categorical rule that did not depend upon the characteristics of a particular arrestee.  The Court then employed the test it had used in Riley v. California, 573 U.S. __ (2014), to determine whether a given type of search should be exempted from the warrant requirement:  Does the need for the search in light of a legitimate government interest outweigh the individual’s privacy interest?
Breath tests. The Court characterized the physical intrusion involved in breath testing as “almost negligible,” and observed that breath tests reveal “only one bit of information,” namely “the amount of alcohol in the subject’s breath.” Slip op. at 20-21. Moreover, the court opined that participation in a breath test does not greatly enhance the embarrassment already inherent in any arrest.
Blood tests. Blood tests are different. The process is “significantly more intrusive than blowing in a tube” as it requires piercing of the skin. Slip op. at 23. And even though such tests involve little pain or risk, people do not relish the process. Moreover, blood samples can provide information beyond a person’s blood alcohol concentration.
State’s interest. The states and the federal government have a paramount interest in keeping public highways safe.  Alcohol consumption is the leading cause of traffic deaths. To deter driving while impaired, states have adopted per se blood alcohol concentration levels and have adopted implied consent laws to induce drivers to submit to chemical testing. States first punished refusal by suspending a driver’s driving privileges.  Some states then upped the ante, prosecuting such refusals as a crime. These laws are designed to provide an incentive to cooperate with testing and thus serve an important function.
Holding. Weighing these interests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The Court found no justification, however, for demanding a blood test as a search incident to arrest. Blood tests are significantly more intrusive, and the State may require the less invasive alternative of a breath test.
Implied consent? The Court next considered whether a warrantless blood tests could be justified based on a driver’s legally implied consent. Noting that prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court cautioned that “nothing we say here should be read to cast doubt on them.” Slip op. at 36.
The Court distinguished the laws in the cases before it from the general concept of implied consent laws with civil penalties.  North Dakota and Minnesota not only mandate blood testing but also impose criminal penalties for the refusal to cooperate.  The Court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. The Court concluded that deeming a driver to have consented to a blood test under threat of criminal prosecution was an unreasonable requirement.
Applying its conclusions to the cases before it, the court ruled as follows:
Birchfield: The blood draw that Birchfield refused cannot be justified as a search incident to arrest or based on implied consent. Moreover, there was no exigency. Because Birchfield was threatened with an unlawful search, the Supreme Court reversed his conviction for refusing that search.
Bernard: The breath test that Bernard refused was a permissible search incident to arrest. Officers did not need a warrant to carry out the test, and Bernard had no right to refuse search. Thus, the court affirmed Bernard’s conviction.
Beylund: Beylund submitted to a blood test after being warned that if he did not, he would be criminally prosecuted. That warning was partially inaccurate as he could not lawfully be prosecuted for such a refusal. Thus, the Supreme Court remanded Beylund’s case for a determination by the state court as to whether Beylund’s consent was voluntary.
Birchfield fails to coherently explain the theory of implied consent. The Court did not address whether a person’s refusal to submit to a warrantless blood test may be sanctioned by the revocation of a person’s license. Different parts of the opinion point to different conclusions about that issue. On the one hand, Birchfield went out of its way not to throw shade on implied consent laws that impose civil rather than criminal penalties for refusing chemical testing. That portion of the opinion indicates that implied consent laws that impose civil or administrative penalties do not abridge a suspect’s constitutional rights. On the other hand, Birchfield’s consideration of whether chemical testing is a search incident to arrest suggests that implied consent laws don’t dictate what measures are reasonable under the Fourth Amendment.  And if it isn’t reasonable under the Fourth Amendment to require a person’s submission to a warrantless breath test, then how can a person be sanctioned for that refusal, regardless of whether the sanction is civil or criminal in nature?
Birchfield further indicates that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing. Many courts with implied consent laws have assumed the voluntariness of a suspect’s acquiescence to testing when it follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement).
Impact in NC. Unlike North Dakota and Minnesota, North Carolina does not impose criminal penalties for refusing implied consent testing. Instead, G.S. 20-16.2 requires license revocation (and renders the fact of refusal admissible at the person’s criminal trial) as a consequence of such a refusal. Thus, much of what the court decided in Birchfield will not affect NC.  The Court’s holding that warrantless blood testing under a state’s implied consent law is not permissible as a search incident to arrest is, however, significant for NC. Birchfield makes clear that law enforcement officers in NC who desire to test an impaired driving suspect’s blood for evidence of impairment must obtain a warrant, a person’s consent, or rely upon exigent circumstances to lawfully conduct such testing. Thus, Birchfield affirms the court of appeals’ conclusion in State v. Romano, ___ N.C. App. ___, 785 S.E.2d 168 (2016) (discussed here) that the warrantless withdrawal of blood from an unconscious impaired driving suspect runs afoul of the Fourth Amendment, notwithstanding provisions of NC’s implied consent law that authorize such testing. And, as noted above, Birchfield may also broaden the inquiry into whether a suspect’s consent to testing was voluntary.

When is your registration really due?

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Great article by Shea Denning of NCSOG.

Facts. An undercover Greensboro narcotics detective was monitoring the activities of passengers who disembarked from a bus early in the morning of October 6, 2014, when the actions of one passenger caught his attention. The passenger and his companion got off of the bus and walked into a nearby convenience store. The passenger came back out of the store a couple of minutes later, walked backwards towards the detective’s unmarked car, looked into the car, shooed the detective away, and walked back into the store. A burgundy Buick then pulled into the parking lot. The bus passenger got into the passenger seat of the Buick and his companion got into the right rear seat. The Buick then left the parking lot. The detective entered the Buick’s license plate into his mobile computer terminal, which accessed information from the Division of Motor Vehicles (DMV). The detective, who suspected the pair of drug trafficking activity, subsequently radioed other officers to report that the Buick’s registration was expired and that it “had an inspection violation.”
Another detective received the alert and independently typed the license plate information into his computer. The report from DMV showed that the Buick’s license plate was issued on 9/26/2013, that its status was “EXPIRED,” and that the plate was “VALID THRU: 10152014.” The DMV report contained no information about the status of the car’s inspection. Based on this information, the detective stopped the vehicle and told the driver, Sandy Baskins, that he had been stopped for an expired registration and inspection violation. Baskins consented to a search of the car. A drug-trained dog alerted to the front and rear passenger seats. All three passengers were searched, and officers found heroin inside the pants of the rear seat passenger.
Procedure. The driver, Sandy Baskins, was indicted for trafficking in heroin. He filed a motion to suppress evidence resulting from the traffic stop. The trial court denied the motion. Baskins was convicted at trial and appealed.
Court of Appeals. Baskins challenged the trial court’s findings of fact that the registration and inspection for the Buick had expired. With respect to the registration, the court of appeals cited the rule in G.S. 20-66(g) that permits operation of a vehicle until midnight on the fifteenth day of the month following the month in which the sticker expires
Thus, the court concluded that “[a]s far as the registration was concerned, Defendant was operating the Buick lawfully, and Detective O’Hal was provided confirmation of this fact in the information he requested and received from DMV.” (Slip op. at 7-8).
As for the inspection, the court noted that the DMV screen the officers examined did not contain information about the vehicle’s inspection. Thus, the record did not contain substantial evidence that the Buick was being operated with an expired inspection status.  (Unfortunately for procrastinators like me, there is no fifteen day grace period to obtain a vehicle inspection. See G.S. 20-183.4C(a)(6).)
The appellate court thus overruled the objected-to findings of fact.
But the appellate court did not reverse Baskins’ conviction. Instead, the court of appeals determined that the trial court had not made a proper conclusion of law when it found that “[t]he temporary detention of a motorist upon probable cause to believe he has violated a traffic law (such as operating a vehicle with expired registration and inspection) is not inconsistent with the Fourth Amendment . . . . O’Hal was justified in stopping Defendant[s’] vehicle.”
The court of appeals explained that while this conclusion “intimates that Detective O’Hal was justified in initiating the stop based upon either the alleged registration violations or the alleged inspection violation . . . it does not actually make any such conclusion.” (Slip Op. at 12.)
Thus, the court remanded for “further action consistent with this opinion, including making additional findings of fact and conclusions of law as necessary.” (Slip Op. at 13.) The appellate court stated that the trial court had discretion to take additional evidence “in order to comply with this holding.” Id. (citing State v. Gabriel, 192 N.C. App. 517 (2008) (vacating order denying motion to suppress and remanding for additional evidence where trial court failed to enter a written suppression order containing findings of fact or conclusions of law)).
Down to the wire. I thought everyone knew that a vehicle could not be stopped for an expired NC registration during the fifteen-day grace period following expiration. Now that the court of appeals has cleared up any doubt about that issue, NC motorists can continue to drive halfway through the month that follows the expiration of their vehicles’ registrations without worry of being stopped for a violation of G.S. 20-66. It remains to be seen, however, whether the application of this rule will result in a new trial for Sandy Baskins.

Can you Serve Alcohol to Your Children at Home

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The answer is NO.

Take a look at the following articles.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.
That’s right.  You may not sit your so-far-over-21-that-I-don’t-really-remember-my-younger-self on the beach on the first unofficial day of summer and enjoy a strawberry daiquiri (unless you leave the liquor out). But don’t despair. You may drink a beer or sip some wine.
Alcoholic beverages in North Carolina are regulated under Chapter 18B of the General Statutes. Alcoholic beverages include malt beverages (such as beer), wine, liquor, and mixed beverages. The general rule is that a person may only have liquor and fortified wine (wine with more than 16 percent alcohol) in places expressly permitted by statute. See G.S. 18B-301(f)(4). The rule for beer and unfortified wine (wine with 16 percent or less alcohol) is the opposite: A person who is at least 21 years old may possess beer and wine anywhere except where it is expressly prohibited. See G.S. 18B-300.  Local government lawyers might think of this as home rule for beer and wine.
Where may one lawfully drink liquor and fortified wine? 
At home. A person who is at least 21 years old may possess any amount of liquor and fortified wine at his or her home or a temporary residence, such as a hotel room.
Up to 8 liters at other locations. A person also may possess up to 8 liters of liquor and fortified wine (combined) at:

• another person’s residence with that person’s consent;
• any other property not primarily used for commercial purposes and not open to the public at the time the alcoholic beverage is possessed, if the owner or other person in charge of the property consents; and
• a restaurant, hotel, private club, community theatre, or a veterans organization with a brown-bagging permit.

At special occasions. A person may possess any amount of fortified wine or liquor for a private party, private reception, or private special occasion, at:

• Any property not primarily used for commercial purposes, which is under the person’s exclusive control and supervision, and which is not open to the public during the event; and
• The licensed premises of a restaurant, hotel, eating establishment, private club, or convention center for which the ABC Commission has issued a special occasions permit if the person is the host of that private function and has the permission of the permittee.

Just as a person may possess fortified wine and liquor at the aforementioned places, he or she also may consume such beverages at any such location. G.S. 18B-301(d).
At a place with a permit. And, of course, the consumption of fortified wine and liquor is permissible at a location with on-premises fortified wine and mixed beverage permits. G.S. 18B-1001. An on-premises fortified wine permit may be issued to a restaurant, hotel, private club, community theatre, winery, or a convention center. A mixed beverage permit may be issued to any of these types of establishments other than a winery and also may be issued to a nonprofit or political organization.
Not on the beach.  Beaches do not constitute the sort of premises for which a permit may be issued authorizing the possession and consumption of fortified wine or mixed drinks.  While the dry sand portion of the beach – generally the area above the high tide line – may be privately owned, private persons cannot exercise the exclusive control over beaches that is required to authorize the possession of fortified wine and liquor pursuant to G.S. 18B-301(c)(2). Ocean beaches in North Carolina have “from time immemorial” been open to the public for its free use and enjoyment. G.S. 77-20.  Thus, even the owners of dry sand portions of the beach lack the ability to exclude the public from access. See Nies v. Town of Emerald Isle, __ N.C. App. ___, ___, 780 S.E.2d 187, 196 (2015) (“[P]ublic right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness. Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”).
Beer and wine.  I mentioned earlier that a person who is at least 21 years old may possess and consume beer and unfortified wine anywhere except where it is specifically prohibited. No state law prohibits a person who is at least 21 years old from possessing and consuming beer and wine on public beaches. Indeed, the town where I vacation most often, Emerald Isle, adopted an ordinance expressly stating that such possession and consumption is lawful. Emerald Isle, like many cities and towns, does prohibit the consumption of beer, wine and other alcoholic beverages on its public streets and on other public property in the town. See 18B-300(c)(1)(authorizing cities and towns to adopt such regulations).
What’s the penalty? Possession or consumption of fortified wine or liquor on unauthorized premises is a Class 1 misdemeanor. G.S. 18B-301(f)(2), -102(b). The offense is waivable, meaning that one may plead guilty to the offense in writing and pay a fine of $25 plus $203 in court costs in lieu of appearing in court. There were nearly 600 such charges last year, 9 in Carteret County and 55 in New Hanover County.
So, if you’d rather stay on the beach and out of court this summer, forget about that daiquiri and have a Bud Light or some muscadine wine instead.