By Laurie Landsittel
The Daily Record Newswire
RALEIGH, NC — The North Carolina Court of Appeals on Dec. 3 ordered that the warrantless blood draw of a drunken driving suspect without his consent was permissible — despite citing a recent landmark U.S. Supreme Court case that carried a contrary ruling in a similar case.
The court also ruled that such future determinations must be made on an individual basis to avoid Fourth Amendment challenges.
Quoting the top court’s ruling in Missouri v. McNeely, which addressed the circumstances in which a warrant can be sidestepped in DWI cases, the court stated “the natural metabolization of alcohol in the bloodstream does not create a per se exigency… and exigency in this context must be determined case by case.”
The case, State v. Dahlquist, stems from a September 2009 traffic checkpoint in Charlotte.
Ronald Dahlquist drove up to the checkpoint and an officer from the Charlotte-Mecklenburg police department smelled alcohol.
The officer administered field sobriety tests on Dahlquist, which he failed. He also admitted to drinking that night.
The officer asked him to submit to a breath test at the onsite mobile unit, but Dahlquist refused. The officer then transported him to a hospital where they drew blood from him without his consent or a warrant.
Dahlquist filed a motion to suppress the evidence from the blood draw and the motion was denied.
He was found guilty of DWI at a jury trial and later appealed.
At several points, the appeals court’s reasoning appears to contradict its holding. The court held that the totality of the circumstances, including the officer’s estimate of the wait time to obtain a warrant, were sufficient “exigent circumstances” under McNeely to justify the forced blood draw.
But the court also listed several ways the officer could have first obtained a warrant: telephonically, through radio communication, or even electronically through email or video conferencing.
The court said the officer should have considered the video transmission option or could have called the hospital and the magistrate court to get exact wait times. It specifically cited McNeely for the proposition that “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to the assessment of exigency.”
In Dahlquist, the appeals court focused on the four or five hours the officer believed it would take to obtain a blood sample if he first secured a warrant.
But Dahlquist’s trial attorney, William Powers of Powers McCartan in Charlotte, says there are three hospitals very close to the magistrate court and the Mecklenburg county magistrate court runs on a “fast track system” when it comes to DWI cases — meaning that all such cases “are moved to the front of the line in the arrest processing part of the case” and a magistrate is seen quickly.
Dahlquist’s appellant attorney, Gordon Widenhouse, of Rudolf, Widenhouse, and Fialko, said he also was “disappointed with the analysis in the decision,” because the officer made assumptions like guessing the time to obtain a warrant.
“You have to get a warrant absent exigent circumstances, which are specific facts that are happening in the present not surmised from past experiences like the officer did in this case,” he said.
Widenhouse also noted the officer testified that Mecklenburg County policy is to transfer a DWI suspect straight to the hospital for a forced blood draw without first obtaining a warrant when the breath test is refused.
Widenhouse said he believes the decision is wrong under McNeely, and hopes the state Supreme Court will review it.
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