What is Reasonable? The Use of Force in Compelling Blood Samples for DWI Charges

Photo by James Clayton

The Arrest

Around 11 p.m. on July 12, 2010, a truck pulled into the parking lot of a Winston Salem gas station,with Kevin Deon Wilson in the driver’s seat.  Although Wilson later denied driving the truck, whose owner was also in the vehicle, he was arrested and charged with misdemeanor driving while intoxicated (DWI) and driving with a revoked license.  Despite the relatively commonplace nature of the charges against Wilson, what followed his arrest was far from expected.

The officer on the scene, Cpl. Richard Necessary of the Winston-Salem Police Department, first asked Wilson to perform a series of field sobriety tests.  After these tests, however, Wilson refused both a breathalyzer and a blood sample.  Unsatisfied with Wilson’s refusal, Cpl. Necessary drove the arrestee to Wake Forest Baptist Medical Center for further analysis.  It was at the hospital that grounds for litigation arose.

Although a person charged with driving while impaired can, under North Carolina law, refuse to submit to a blood sample analysis or a breathalyzer, the consequence of that refusal is the loss of that individual’s driver’s license for at least one year.  Further, if the person refuses to submit to any test, N.C.G.S. § 20-139.1 allows an officer who has probable cause “to compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay . . . would result in the dissipation of the percentage of alcohol in the person’s blood or urine.”

Relying, though perhaps incorrectly, on this statute, Cpl. Necessary forcibly compelled Wilson to submit to a blood sample analysis.  Approximately one hour after arresting Wilson, Cpl. Necessary sat on the arrestee and instructed a nurse to draw blood for use in a chemical analysis in conjunction with the DWI arrest.

The Constitutional Violation 

Because drawing blood in such circumstances is considered a search and seizure, an officer’s conduct must comply with constitutional standards.  After having been convicted of the DWI charge at the district court level, Wilson appealed to the Forsyth County Superior Court and filed a motion to dismiss the charges and to suppress the blood test evidence because the forced extraction of blood violated his constitutional rights.

On January 2, 2012,  the State indicated it would not introduce the blood analysis evidence but argued that the defendant’s motion should be denied.  The Superior Court, however, granted Wilson’s motion to dismiss. The court found that Cpl. Necessary’s actions in compelling the blood draw were unreasonable and violated the Fourth and Fourteenth Amendments of the United States Constitution, as well as Article I and Sections 18 and 19 of the North Carolina Constitution.

The court further held the officer’s conduct under N.C.G.S. § 20-139.1(d1) was inappropriate.  Cpl. Necessary justified his forced compulsion of a blood draw by stating he believed Wilson had crack cocaine in his system; the statute, however, allows forced compulsion only when an officer believes an arrestee to have alcohol in his system.  This misapplication, according to the Superior Court, was unconstitutional and grounds for dismissal.

The Court of Appeals Decision

When the case reached the North Carolina Court of Appeals, many anticipated the court would provide a clear definition of exactly what constitutes reasonable use of force by police officers when obtaining blood samples. Instead of addressing what constitutes reasonable force, the court decided Kevin Wilson’s case on procedural grounds.

First, the appellate court stated that the trial court incorrectly applied § 20-139.1 to find that the officer’s conduct violated Wilson’s constitutional rights.  This statute applies to the admissibility of evidence and does not provide grounds for dismissal.

The court also held that despite the defendant’s motion that his constitutional rights were flagrantly violated, no evidence was provided to support this claim.  Had violations occurred, the appropriate remedy would have been suppression of evidence, not dismissal of charges.  Because of this, the Court of Appeals reversed the Superior Court’s decision, leaving no answer to the question of what exactly is reasonable force in compelling a blood sample.

The Definition of Reasonable Force

North Carolina courts have allowed the compelled drawing of blood, as in State v. Fletcher and State v. Davis, and the United States Supreme Court has addressed the circumstances under which an officer’s conduct would violate an arrestee’s rights under the Fourth Amendment.  A specific holding on the appropriate level of force, however, has not been provided.

In Schmerber v. California, the Supreme Court established three requirements for the compulsion of a blood extraction.  First, probable cause must exist to believe that the person has been involved in impaired driving.  The officer must also have clear indication that evidence of impairment will come from the blood sample.  Finally, a forced extraction of blood may occur either by search warrant or exigent circumstances.  In addition to these requirements, the test must be conducted in a reasonable manner.

These requirements involve the vague terminology often found in Fourth Amendment issues.  Phrases such as “probable cause,” “exigent circumstances,” and “reasonable” play regular roles in search and seizure cases.  Their common usage, however, does little to clarify their meanings.  Instead they leave lingering questions regarding what conduct is appropriate and what crosses the line.

The use of force to compel blood draws has been allowed in other jurisdictions.  For example, officers’ use of a “Do-Rite” stick to subdue an overly aggressive arrestee was deemed reasonable in Michigan’s People v. Hanna.  The New Jersey Supreme Court, however, took the opposite stance in State v. Ravatto.  In that case, both bodily and mechanical forces were used to restrain an arrestee while blood was drawn. The court found this use of force unreasonable, despite the defendant’s flailing because of his fear of needles.

But where does this leave the defendant arrested for DWI and forced to provide a blood sample?  And where does it leave lawyers attempting to advocate for their clients?  The facts and circumstances surrounding the DWI arrest and subsequent refusal to provide a blood sample become increasingly important given the lack of definition for reasonable force.  Discretion is placed in the hands of arresting officers to determine what force is necessary under the circumstances.

The Court of Appeals decision provides some guidance.  It solidifies the appropriate remedy for such a constitutional violation as suppression of the blood analysis evidence, not dismissal of the DWI charges.  Though not a definition of reasonable force in compulsion, this is a beneficial guideline.

Certainly, understanding the appropriate remedy to seek is important.  This will likely aid attorneys in drafting their motions involving these constitutional violations.  And perhaps in the future, when the dust has settled on the remedy debate, the court will clarify just what level of force can be used in compelling a blood draw.  Perhaps defendants and lawyers will finally know what it means to be reasonable.

 

Harper Gwatney, Former Associate Editor/Ethics
About Harper Gwatney, Former Associate Editor/Ethics (9 Articles)
Harper Gwatney, originally from Goldsboro, North Carolina, served as an Associate Editor for the Campbell Law Observer during the 2013-2014 academic year. She was also a member of the school's Mock Trial Team and an Associate Chair of the Old Kivett Advocacy Council. Prior to law school, Harper received a Bachelor's degree in English from UNC-Chapel Hill and a Master's in the Art of Teaching from East Carolina University. Harper then taught Honors and IB English at Myers Park High School in Charlotte, North Carolina. Prior to her graduation from Campbell Law School in May 2014, Harper worked with Walker Allen Grice Ammons & Foy; Superior Court Judge Paul C. Ridgeway; the firm of Stewart Schmidlin Bullock and Gupta; and the Wake County District Attorney's Office.
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