See Judge Miller’s Administrate Order: Magistrate Videoconferencing
North Carolina General Statute NCGS 20-16.2 “Implied Consent to Chemical Analysis” sets forth some of the different protocols we follow in North Carolina in obtaining a Blood Alcohol Content BAC and/or an BrAC or “Breath Alcohol Content” and reads in relevant part:
§ 20-16.2. Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.
(a) Basis for Officer to Require Chemical Analysis; Notification of Rights. – Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person. Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:
(1) You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.
(2) Repealed by Session Laws 2006-253, s. 15, effective December 1, 2006, and applicable to offenses committed on or after that date.
(3) The test results, or the fact of your refusal, will be admissible in evidence at trial.
(4) Your driving privilege will be revoked immediately for at least 30 days if you refuse any test or the test result is 0.08 or more, 0.04 or more if you were driving a commercial vehicle, or 0.01 or more if you are under the age of 21.
(5) After you are released, you may seek your own test in addition to this test.
(6) You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.
There are times though where the accused, after having been advised of their rights, “refuses” to give a breath, blood or urine sample. What lawyers normally refer to a “REFUSAL” does not necessarily end with the State being unable to collect evidence. In some instances the State may be able to “force” or otherwise “compel” blood sampling. Although application is technically possible in different fact patterns, Compelled Blood Draw cases tend to involve DWI DUI Impaired Driving Allegations in Charlotte and other jurisdictions in North Carolina.
An exception to the Warrant Requirement of the 4th Amendment “applies when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” It is important to note, one may also be “compelled” to submit to blood testing by a Search Warrant, as issued by a Magistrate in North Carolina. There are also times where a Police Officer may “compel a blood draw” even without a warrant consistent with North Carolina v. Dahlquist.
See Related: Dahlquist Opinion Compelled Blood 071614
The State may also apply for a Warrant, whereby a Judicial Official can Order the accused to submit to testing.
§ 15A-245. Basis for issuance of a search warrant; duty of the issuing official.
(a) Before acting on the application, the issuing official may examine on oath the applicant or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the issuing official in determining whether probable cause exists for the issuance of the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official. The information must be shown by one or more of the following:
(1) Affidavit; or
(2) Oral testimony under oath or affirmation before the issuing official; or
(3) Oral testimony under oath or affirmation presented by a sworn law enforcement officer to the issuing official by means of an audio and video transmission in which both parties can see and hear each other. Prior to the use of audio and video transmission pursuant to this subdivision, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge and the chief district court judge for a judicial district or set of districts and approved by the Administrative Office of the Courts.
(b) If the issuing official finds that the application meets the requirements of this Article and finds there is probable cause to believe that the search will discover items specified in the application which are subject to seizure under G.S. 15A-242, he must issue a search warrant in accordance with the requirements of this Article. The issuing official must retain a copy of the warrant and warrant application and must promptly file them with the clerk. If he does not so find, the official must deny the application.
On February 6, 2015, Chief District Court Judge Reagan Miller for the 26th Judicial District in North Carolina (Charlotte-Metro / Mecklenburg County) put into place a Local Administrative Order regarding obtaining a Search Warrant by “electronic means.”
To some, setting forth such a formalized process for such common technology in an PDA ubiquitous society may seem odd. Judge Miller’s Order may be one of first of its kind in North Carolina. While the law allowing for such process has been in place, the practical application has left many to scratch their heads and wonder, “How?”
For more information on the laws of North Carolina regarding DUI DWI and Impaired Driving allegations, please feel free to contact Bill Powers. If you are aware of other such Administrative Office of the Courts Orders, please email Bill at: Bill@PowMac.com
Bill Powers has been listed in 2015 SuperLawyers North Carolina Magazine. In calendar years 2012, 2013 & 2014, SuperLawyers further included Bill in the “Top 100″ Lawyers in North Carolina. In 2013 Bill Powers was listed as “Top 25 in Charlotte” by SuperLawyers North Carolina.
For Membership Information & Criterion for Inclusion to SuperLaywers North Carolina see: https://www.avvo.com/attorneys/28208-nc-f-powers-1739178.html
Powers Law Firm PA in 2015 has been again listed as a “Best Law Firm” by U.S. NEWS & WORLD REPORT. For Member Info & Criterion for Inclusion see: hhttps://www.bestlawyers.com/firms/powers-mccartan-pllc/44550/US/
In 2015 Bill Powers has been included in Best Lawyers of America. For membership info & criterion for inclusion see: https://www.bestlawyers.com/lawyers/bill-powers/78562/
Bill Powers has also been listed in “Top 100 Criminal Defense Lawyers in North Carolina” by The National Trial Lawyers. For member info & criterion for inclusion see: https://www.thenationaltriallawyers.org/profile-view/Bill/Powers/5071/
“Top 10 Criminal Defense Attorneys in North Carolina” as listed in The National Academy of Criminal Defense Attorneys. For member info & criterion for inclusion see: https://www.national-academy.net/attorney-members/bill-powers