IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-408
Filed 05 July 2023
Buncombe County, No. 14 CRS 5011
STATE OF NORTH CAROLINA
v.
KYLE ALLEN BURRIS, Defendant.
Appeal by defendant from judgment entered 11 August 2021 by Judge
Jacqueline D. Grant in Buncombe County Superior Court. Heard in the Court of
Appeals 8 March 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip
T. Reynolds, for the State.
Kimberly P. Hoppin for the Defendant.
DILLON, Judge.
Defendant Kyle Allen Burris appeals from a judgment entered upon a jury
verdict convicting him of driving while impaired and reckless driving to endanger.
We conclude that Defendant received a fair trial, free of reversible error.
I. Background
On the evening of 22 November 2014, a law enforcement officer responded to a
single-vehicle accident in Buncombe County. Upon arriving at the scene, the trooper
saw a pickup truck off the right side of the road. The vehicle was up against a steel
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Opinion of the Court
fence and had sustained extensive damage. The trooper found Defendant lying
trapped under the steel fence outside the vehicle. Defendant was unresponsive and
appeared to suffer from severe injuries. He was bleeding excessively. He smelled of
alcohol. The trooper found open beer cans, both inside and outside the vehicle.
Defendant was eventually taken to the hospital, still unconscious, while the trooper
remained at the scene. The trooper was able to determine that Defendant was the
owner of the vehicle, and there was no evidence at the scene that anyone else was
riding in the vehicle when the wreck occurred.
Defendant was convicted by a jury in superior court for driving while impaired
and reckless driving to endanger. Defendant timely appealed.
II. Analysis
Defendant raises two issues on appeal, which we address in turn.
A. Evidence That Defendant Was Driving the Vehicle
Defendant makes two arguments concerning the evidence that he was, in fact,
driving the wrecked vehicle.
First, Defendant contends the trial court erred when it allowed certain
evidence showing the trooper believed Defendant driving the vehicle when it wrecked.
This argument pertains to both Defendant’s driving while impaired conviction and
his reckless driving to endanger convictions, both of which required the State to prove
that Defendant was driving the vehicle when the wreck occurred.
We agree that the trooper’s opinion testimony that Defendant was the driver
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Opinion of the Court
was inadmissible because the trooper did not personally observe Defendant driving
the vehicle. See N.C. Gen. Stat. § 8C-1, Rule 701 (2021) (Lay testimony is generally
confined to a witness’s personal observations); State v. Fulton, 299 N.C. 491, 494, 263
S.E.2d 608, 610 (1980) (stating that “[o]rdinarily opinion evidence of a non-expert
witness is inadmissible because it tends to invade the province of the jury.”)
However, we conclude the admission of the trooper’s opinion testimony does
not constitute reversible error in this case. In so holding, we note the trial court gave
a curative instruction regarding the trooper’s opinion testimony. Specifically, the
trial court expressly stated that the officer would be permitted to talk about what he
observed during his post-crash investigation of the scene, but that he would not be
permitted to “conclusively say [Defendant] was the driver”. The trial court instructed
the jury to disregard the trooper’s opinion testimony, stating:
The Court is going to sustain the defendant’s objection to
the extent [the officer] has referred to the defendant as “the
driver.” The jury is to disregard any testimony referring to
the defendant as “the driver”, because that’s actually an
issue that you will decide as the jury.
See State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991) (“When the trial
court withdraws incompetent evidence and instructs the jury not to consider it, any
prejudice is ordinarily cured.”)
Further, assuming the trial court’s curative instruction was insufficient,
Defendant has failed to establish that he was prejudiced by the officer’s statement,
as Defendant failed to object to other evidence tending to show the trooper believed
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Opinion of the Court
Defendant to be the driver. See State v. Delau, 381 N.C. 226, 237, 872 S.E.2d 41, 48
(2022) (holding that any error in allowing an officer to testify about the driver’s
identity was not prejudicial when the warrant application admitted without objection
contained the same information, the officer’s conclusion that the defendant was
driving). For example, Defendant did not object when the State offered the trooper’s
“Affidavit and Revocation Report” as evidence, which contained multiple references
to Defendant as the driver.
Second, Defendant argues the trial court erred when it denied Defendant’s
motion to dismiss the charges for insufficient evidence showing Defendant was the
driver. To survive a motion to dismiss, there must be substantial evidence of each
essential element of the crime and that the defendant is the offender. State v.
Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015). When considering the motion,
evidence must be considered in the light most favorable to the State, and the State is
entitled to every reasonable inference. Id. at 574, 780 S.E.2d at 826.
We conclude there was sufficient evidence from which the jury could find that
Defendant was driving the vehicle when the crash occurred. In addition to the State’s
exhibits which were not objected to which described Defendant as the driver, there
was evidence that Defendant was found alone at the accident scene and that
Defendant was the owner of the vehicle. See, e.g., State v. Ray, 54 N.C. App. 473, 475,
283 S.E.2d 823, 825 (1981) (“It is possible that other circumstantial evidence – such
as … evidence as to the [defendant’s] ownership of the automobile – in addition to the
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Opinion of the Court
testimony of the officer [finding the defendant alone in a vehicle that was running]”
would be sufficient to meet the State’s burden of showing the defendant was driving
the vehicle). When viewed in the light most favorable to the State, we conclude that
the evidence was sufficient to survive Defendant’s motion to dismiss.
B. Warrantless Blood Draw
At trial, the jury was instructed it could convict Defendant of drunk driving
solely on the grounds that Defendant’s blood alcohol level was above the legal limit.
N.C. Gen. Stat. § 20-138.1(a)(2) (2021). It was on this ground that Defendant was
convicted of this charge. Defendant argues the trial court erred by denying his motion
to suppress the warrantless blood draw, the results of which were the only evidence
that his blood alcohol level exceeded the legal limit.
The evidence concerning the blood draw showed that Defendant was
transported to the hospital, that the trooper went directly to the hospital after
completing his work at the crash scene, and that the trooper obtained a blood sample
from Defendant while Defendant remained unconscious.
Blood tests are considered a search under both the federal and North Carolina
constitutions. Schmerber v. California, 384 U.S. 757, 767 (1966). Accordingly, “blood
draws may only be performed after either obtaining a warrant, obtaining valid
consent from the defendant, or under exigent circumstances with probable cause.”
State v. Romano, 369 N.C. 678, 692, 800 S.E.2d 644, 653 (2017).
Here, the trooper did not obtain a warrant prior to obtaining a blood sample
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Opinion of the Court
from Defendant at the hospital.
Also, Defendant did not give express consent for the blood draw as he was
unconscious throughout. Our General Assembly, however, has provided that a driver
has given implied consent to a blood draw when he is found unconscious and there is
reasonable grounds to suspect that he has been driving while impaired. N.C. Gen.
Stat. § 20-16.2(b) (2021). Our Supreme Court has limited the scope of this statute by
holding that the Fourth Amendment is violated when an unconscious driver is
deemed as consenting to a blood draw based on this implied consent statute for
purposes of an impaired driving prosecution. See Romano, 369 N.C. at 691, 800
S.E.2d at 652 (stating that Section 20-16(b) is not “a per se categorical exception to
the warrant requirement.”)
We, therefore, consider whether there were sufficient exigent circumstances to
justify the trooper’s action in not first obtaining a warrant before obtaining a draw of
Defendant’s blood. Our resolution of this issue is controlled by the recent United
States Supreme Court decision in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019).
Mitchell, decided two years after our Supreme Court decided Romano,
concerned the constitutionality of a warrantless blood draw from an unconscious
motorist suspected of impaired driving in a state with an implied consent statute
similar to our implied consent statute.
A four-judge plurality of the Court in Mitchell - sidestepping the issue as to
whether prosecutors can rely on an implied consent statute to show consent by an
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Opinion of the Court
unconscious driver to a blood draw – held that exigent circumstances “almost always”
exist to conduct a warrantless blood draw where an unconscious driver is taken to
the hospital1:
Thus, exigency exists when (1) BAC evidence is dissipating
and (2) some other factor creates pressing health, safety, or
law enforcement needs that would take priority over a
warrant application. Both conditions are met when a
drunk-driving suspect is unconscious []: With such
suspects, too, a warrantless blood draw is lawful.
… [U]nconsciousness does not just create pressing needs;
it is itself a medical emergency. . . . Police can reasonable
anticipate that . . . [the defendant’s] blood may be drawn
anyway, . . . and that immediate medical treatment could
delay (or otherwise distort the results of) a blood draw
conducted later, upon receipt of a warrant, thus reducing
evidentiary value.
* * *
When police have probable cause to believe a person has
committed a drunk-driving offense and the driver’s
unconsciousness or stupor requires him to be taken to the
hospital or similar facility before police have a reasonable
opportunity to administer a standard evidentiary breath
test, they may almost always order a warrantless blood test
to measure the driver’s BAC [blood alcohol content]
without offending the Fourth Amendment.
1 The plurality opinion, authored by Justice Alito, garnered the votes of three other justices.
Justice Thomas concurred in the judgment. Justice Thomas argued that the natural metabolism of
alcohol in the blood means that exigent circumstances are present whenever someone is suspected of
driving under the influence of alcohol. Mitchell, 139 S. Ct. at 2539-41 (Thomas, Justice concurring).
Because Justice Alito’s opinion is based on a narrower ground, it represents the Court’s holding. See
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may
be viewed as that position taken by those Members who concurred in the judgments on the narrowest
grounds....’” (quoting Gregg v. Georgia, 428 U.S.153, 169 n. 15 (1976) (plurality opinion))).
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Opinion of the Court
Id. at 2537-39. The Court, though, remanded that case to allow the defendant a
chance to show his was the “unusual case” that would require a warrant, seemingly
placing on the defendant the burden to make this showing where the State proves
that the defendant was unconscious and needed treatment at a hospital:
We do not rule out the possibility that in an unusual case
a defendant would be able to show that his blood would not
have been drawn if police had not been seeking BAC
information, and that police could not have reasonably
judged that a warrant application would interfere with
other pressing needs or duties. Because [the defendant] did
not have a chance to attempt to make that showing, a
remand for that purpose is necessary.
Id. (emphasis added). In remanding the case, the Court was not saying that a
defendant has the initial burden to prove a lack of exigent circumstances. The Court
recognized the State has this burden of showing exigency but was stating that the
State meets this burden by showing the defendant was unconscious and in need of
medical attention at a hospital. The Court then simply recognized that, where the
State makes this showing, the defendant should have the opportunity to offer
evidence of other facts to show a lack of exigency. See State v. Mitchell, 404 Wis.2d
103, 110-15 (2022) (after remand from the United States Supreme Court, Wisconsin
intermediate appellate court concludes the defendant failed to meet his burden of
showing his was an unusual case); McGraw v. State, 289 So.3d 836, 839 (Fla. 2019)
(Florida Supreme Court remands so “[the defendant] can be given the opportunity to
demonstrate” his was an unusual case which required a warrant); Peoples v. Eubanks,
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Opinion of the Court
160 N.E.3d 843, 864 (2019) (Illinois Supreme Court interprets Mitchell as stating “in
cases where the “general rule” applies, the burden shifts to defendant to establish a
lack of exigent circumstances.”) But see State v. Key, 848 S.E.2d 315, 316 (South
Carolina Supreme Court refusing to shift the burden to the defendant to show his to
be an unusual case).
In the case before us, the trial court’s findings show the State met its burden
of showing exigency under Mitchell. It found in its written order that Defendant was
unconscious and badly injured at the crash scene when the trooper arrived; the
trooper spent an hour investigating and securing the scene during which Defendant
was transported by ambulance to a hospital; the trooper then went directly to the
hospital; and Defendant had been sedated and was still unconscious when the trooper
arrived. Further, the trial court stated from the bench:
As [the officer] testified, [Defendant] had become
unresponsive. That his injuries were such [the officer] was
concerned that he would probably have to undergo surgery,
and it could even possibly lead to a fatality. And in those
circumstances, the blood alcohol evidence would dissipate
as more time passed. You don’t know how long the
defendant would have been in surgery, what additional
medical treatment would have been rendered. And as a
result of that, that would have created exigent
circumstances that the Court finds not taking the time to
go get a warrant from the magistrate’s office, not knowing
how long that will take, depending on when the magistrate
was available, what’s going on with the jail.
So the Court finds that exigent circumstances existed,
which justified getting the blood draw from the defendant.
So again, the motion to suppress is denied.
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Opinion of the Court
However, we conclude that the matter need not be remanded. The Mitchell Court
remanded the case before it to allow the defendant a chance to offer evidence
“[b]ecause [the defendant] did not have a chance to attempt to make that showing
[that his was an unusual case].” See Mitchell, 139 S. Ct. at 2539. Here, though, the
record shows Defendant did have that opportunity, as the Mitchell case was discussed
at length at the hearing. And, on appeal, Defendant does not cite Mitchell or
otherwise make any argument that he was not afforded the opportunity to make the
showing at the hearing. We, therefore, conclude that the trial court did not commit
reversible error by allowing the results of the warrantless blood draw into evidence.
NO ERROR.
Judges GORE concurs.
Judge TYSON concurs in part and dissents in part with separate opinion.
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No. COA22-408 – State v. Burris
TYSON, Judge, concurring in part and dissenting in part.
I concur with the majority’s holding the trial court erred by allowing the state
trooper, as a lay witness, to testify Defendant was the driver of the vehicle for either
charge, because the trooper never observed Defendant drive, being seated behind the
wheel, or even present inside of the vehicle. This error was cured by the trial judge’s
instruction to disregard this testimony.
The trial court erred in denying Defendant’s motion to suppress the
Defendant’s blood alcohol concentration (“BAC”) level, derived solely from the
warrantless blood draw without the State proving probable cause and exigent
circumstances, and where the jury was instructed solely on Defendant’s BAC level as
evidence to support Defendant’s guilt. I respectfully dissent.
III. Fourth Amendment
The Fourth Amendment of the Constitution of the United States guarantees:
“The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. (emphasis supplied).
The Supreme Court of the United States ruled:
The interests in human dignity and privacy which the
Fourth Amendment protects forbid any such intrusions on
the mere chance that desired evidence might be obtained.
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TYSON, J., concurring in part and dissenting in part
In the absence of a clear indication that in fact such
evidence will be found, these fundamental human interests
require law officers to suffer the risk that such evidence
may disappear unless there is an immediate search.
Schmerber v. California, 384 U.S. 757, 770, 16 L. Ed. 2d 908, 919 (1966).
“The [Fourth] Amendment thus prohibits ‘unreasonable searches,’ . . . [and]
the taking of a blood sample . . . is a search.” Birchfield v. North Dakota, 579 U.S.
438, 455, 195 L. Ed. 2d 560, 575 (2016) (citations omitted). Accord State v. Carter,
322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988).
The Supreme Court of North Carolina has held: “drawing blood . . . constitutes
a search under both the Federal and North Carolina Constitutions.” State v. Romano,
369 N.C. 678, 685, 800 S.E.2d 644, 649 (2017) (citations omitted). “[B]lood draws may
only be performed after either obtaining a warrant, obtaining valid consent from the
defendant, or under exigent circumstances with probable cause.” Id. at 692, 800
S.E.2d at 653.
The Supreme Court of the United States further held: Blood tests: (1) “require
piercing the skin and extract[tion of] a part of the subject’s body”; (2) are “significantly
more intrusive than blowing into a tube”; and (3) place in the hands of law
enforcement “a sample that can be preserved and from which it is possible to extract
information beyond a simple BAC reading.” Birchfield, 579 U.S. at 463-64, 195 L. Ed.
2d at 580 (citations and internal quotation marks omitted).
Our Supreme Court adopted and interpreted the test in Schmerber, as
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TYSON, J., concurring in part and dissenting in part
“forbidding law enforcement authorities acting without a search warrant from
requiring a defendant to submit to the drawing of a blood sample unless probable
cause and exigent circumstances exist to justify a warrantless seizure of the blood
sample.” State v. Welch, 316 N.C. 578, 587, 342 S.E.2d 789, 794 (1986) (citing Winston
v. Lee, 470 U.S. 753, 84 L. E. 2d 662 (1985) (clarifying how North Carolina courts
construe the Schmerber factors). Without probable cause and exigent circumstances,
or another exception to the warrant requirement, a warrantless search violates the
Fourth Amendment to the Constitution of the United States and Article One, Section
Nineteen of the North Carolina Constitution, and any evidence illegally obtained
must be excluded. Id.; U.S. Const. amend. IV; N.C. Const. art. 1, § 19.
The Supreme Court of the United States in Schmerber also explained the
Fourth Amendment’s warrant requirement is not a mere formality, but requires
necessary judgment calls that are made “by a neutral and detached magistrate,” and
not “by the officer engaged in the often competitive enterprise of ferreting out crime.”
Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919 (citation and quotation marks
omitted). This default Constitutional requirement for and specificity of a warrant,
and the further prohibition against General Warrants, serves as bulwark protections
of individual liberties against warrantless searches and seizures, which violate the
Fourth Amendment. A warrant issued “by a neutral and detached magistrate” also
ensures a police officer is not the sole interpreter of the Constitution’s protections and
an individual’s “interests in human dignity and privacy” are protected. Id.
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TYSON, J., concurring in part and dissenting in part
A search conducted without a warrant is “per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576,
585 (1967) (citations and footnotes omitted). “In the absence of a warrant, a search
is reasonable only if it falls within a specific exception to the warrant requirement.”
Riley v. California, 573 U.S. 373, 382, 189 L. Ed. 2d 430, 439 (2014) (citation omitted).
The narrow exception of probable cause and exigent circumstances to the warrant
requirement is necessarily limited. The burden to prove necessity and exigency to
proceed without a warrant remains on the State and does not shift to Defendant. See
Welsh v. Wisconsin, 466 U.S. 740, 749-50, 80 L. E. 2d 732, 743 (1984) (“Prior decisions
of this Court, however, have emphasized that exceptions to the warrant requirement
are ‘few in number and carefully delineated,’ and that the police bear a heavy burden
when attempting to demonstrate an urgent need that might justify warrantless
searches or arrests.” (internal citations omitted)).
The record and testimony show the trooper took an hour or two to complete his
work at the scene before going directly to the hospital to confront Defendant. The
trooper stated he went to the hospital, rather than a magistrate for a warrant,
because Defendant might be headed into surgery. Upon arrival at the hospital, he
located and “advised” the injured and unconscious Defendant of his chemical analysis
rights for a Breathalyzer and asserted he could not perform a breath test on
Defendant.
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TYSON, J., concurring in part and dissenting in part
The trial court found exigent circumstances existed to deny Defendant’s motion
to suppress by holding:
[T]he blood alcohol evidence would dissipate as more
time passed. You don’t know how long the defendant would
have been in surgery, what additional medical treatment
would have been rendered. And as a result of that, that
would have created exigent circumstances that the Court
finds justifies not taking the time to go get a warrant from
the magistrate[’s] office, not knowing how long that will
take, depending on when the magistrate was available,
what’s going on with the jail.
So the Court finds that exigent circumstances
existed, which justified getting the blood draw from the
defendant. So, again, the motion to suppress is denied.
None of these factors, individually or collectively, excuse the requirement of a
warrant. “[T]he natural dissipation of alcohol in the bloodstream does not constitute
an exigency in every case sufficient to justify conducting a blood test without a
warrant.” Romano, 369 N.C. at 687, 800 S.E.2d at 656 (citation and internal
quotation marks omitted).
The majority’s opinion cites Mitchell v. Wisconsin, 588 U.S. __, 204 L. Ed. 2d
1040 (2019), which neither party argues nor relies upon in their briefs, to support its
conclusion. None of those facts or conditions in Mitchell support their result to allow
the needle-extracted, unrestricted search under these facts to allow “a sample that
can be preserved and from which it is possible to extract information beyond a simple
BAC reading.” Birchfield, 579 U.S. at 463-64, 195 L. Ed. 2d 560, 566-67. “[N]o
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
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TYSON, J., concurring in part and dissenting in part
particularly describing the place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV (emphasis supplied).
The majority’s opinion unconstitutionally shifts the burden onto the Defendant
to prove the default necessity of a warrant! The Fourth Amendment guarantees and
mandates the requirement of a warrant, and their analysis of the narrow warrantless
search exception becomes: why do you need a detached neutral magistrate upon
“probable cause, supported by Oath or affirmation” to issue a specified search warrant
before your bodily fluids are extracted and removed from your body, while injured,
unconscious, and without restrictions? That result simply cannot be what the
Founders and Framers intended. Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919
(explaining necessary judgment calls are to be made “by a neutral and detached
magistrate,” and not “by the officer engaged in the often competitive enterprise of
ferreting out crime”).
The Bill of Rights was demanded to amend the Constitution to protect
individuals from the interference and overreach of government officials, and, most
specifically, to protect the privacy and rights of individuals, particularly those
unconscious or utterly incapable, like infants and incompetents, of asserting their
rights or providing informed consent. See Patrick M. Garry, Liberty Through Limits:
The Bill of Rights as Limited Government Provisions, 62 SMU L. REV. 1745, 1757
(2009) (“In the view of the Anti-Federalists, the Bill of Rights would set ‘limits’ and
build ‘barriers’ against government abuse or enlargement of its powers. The purpose
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TYSON, J., concurring in part and dissenting in part
of the Bill of Rights would be to limit the exercise of delegated powers, thus providing
a second limitation on the power of government. . . . But the Bill of Rights placed
limits on even those enumerated powers, forbidding the federal government from
using its enumerated powers to encroach on areas protected by the Bill of Rights.”);
Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. 944, 956 (1928) (Brandis, J.,
dissenting) (stating the Founders “conferred, as against the Government, the right to
be let alone – the most comprehensive of rights and the right most valued by civilized
men”).
IV. Fifth Amendment
A law enforcement officer giving warnings and reading “rights” to an injured
and unconscious person at a hospital, who is utterly incapable of understanding and
giving informed consent, prior to demanding and compelling medical personnel to
draw his blood without his knowledge is the height of hypocrisy. This warrantless
blood extraction makes a mockery of both the Fourth Amendment’s protections of “the
right of the people to be secure in their persons” and the prohibitions “against
unreasonable searches and seizures.” U.S. Const. amend. IV.
The Fifth Amendment’s right against self-incrimination, and Miranda
warnings of the individual’s “right to remain silent” were instituted to avoid
compelled interrogations and testimony or evidence derived from “General Warrants”
or warrantless searches. “No person shall be . . . compelled in any criminal case to be
a witness against himself, nor be deprived of life, liberty, or property, without due
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TYSON, J., concurring in part and dissenting in part
process of law. U.S. Const. amend. V. While the Supreme Court of the United States
has held “that forcing drunk-driving suspects to undergo a blood test does not violate
their constitutional right against self-incrimination,” the Supreme Court also
demanded a “blood test” must be based upon probable cause and ordered by a
detached and neutral magistrate’s warrant. Mitchell, 588 U.S. at __, 204 L. E. 2d at
1046 (citing Schmerber, 384 U.S. at 765, 16 L. Ed. 2d at 917).
“[T]hese fundamental human interests require law officers to suffer the risk
that such evidence may disappear unless there is an immediate search.” Schmerber,
384 U.S. at 769-70, 16 L.Ed.2d at 919. The Supreme Court of North Carolina agreed
and has also held: “[T]he natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test
without a warrant.” State v. Romano, 369 N.C. 678, 687, 800 S.E.2d 644, 656 (2017)
(quotation marks omitted) (quoting Missouri v. McNeely, 569 U.S. 141, 165, 185 L.
Ed. 2d 696, 715 (2013)).
The fact that a suspect fell unconscious at some point or was going into surgery
does not equate to insufficient time for the trooper to seek and demonstrate probable
cause to obtain a warrant. If an officer has the time to secure a warrant prior to the
blood draw, “the Fourth Amendment mandates that they do so[,]”and the burden of
the officer’s failure to do so rests upon the State. McNeely, 569 U.S. at 152, 185 L.
Ed. 2d at 707 (citation omitted).
The trooper testified, and the trial court found, the trooper did not obtain a
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TYSON, J., concurring in part and dissenting in part
warrant because there might be a line and he might have to wait on a magistrate to
review his sworn affidavit for probable cause and application to issue the warrant.
That is the point of requiring a warrant. The trooper’s assertion is sheer conjecture.
Even if true, no evidence was presented by the State to support this “reason” or
“exigency” for failing to secure a warrant.
Presuming probable cause existed, exigent circumstances did not require an
immediate warrantless blood draw, since the hospital would have already drawn
Defendant’s blood for typing and tests upon arrival. See State v. Scott, 278 N.C. App.
354, 861 S.E.2d 892 (2021) (involving blood samples taken upon defendant’s arrival
at the hospital and picked up a week after being drawn).
Additionally, the possibility of Defendant’s death during surgery did not
provide an exigency. If deceased, Defendant would not have been charged in any
event.
The trial court’s finding to support denial of Defendant’s motion to suppress
was:
As [the trooper] testified, [Defendant] had become
unresponsive. That his injuries were such [the trooper]
was concerned that he would probably have to undergo
surgery, and it could even possibly lead to a fatality. And
in those circumstances, the blood alcohol evidence would
dissipate as more time passed. You don’t know how long
the defendant would have been in surgery, what additional
medical treatment would have been rendered. And as a
result of that, that would have created exigent
circumstances that the Court finds justifies not taking the
time to go get a warrant from the magistrate[’s] office, not
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TYSON, J., concurring in part and dissenting in part
knowing how long that will take, depending on when the
magistrate was available, what’s going on with the jail.
All these stated reasons, considered individually or together, are pretextual to avoid
the Fourth Amendment’s requirement for a warrant. McNeely, 569 U.S. at 152, 185
L. Ed. 2d at 715 (explaining that if the police have time to secure a warrant before
the blood draw, “the Fourth Amendment mandates that they do so”).
The purported possibility the magistrate might be delayed, Defendant’s
unconsciousness, or possibility of BAC dissipation does not excuse the trooper’s
inaction and does not create an exigent circumstance to justify the trooper’s failure
to seek a warrant or to order or compel a medical professional to act contrary to
Defendant’s rights. The burden to show probable cause and the reasons for the
absence of a warrant rests upon the State, not the Defendant. That burden does not
shift. The State’s evidence and this finding does not support the trial court’s denial
of Defendant’s motion to suppress. Defendant’s arguments have merit.
V. The State’s Burden on Remand
The majority’s opinion cites Mitchell’s purported exception to warrantless
exigent circumstances exception by quoting: “We do not rule out the possibility that
in an unusual case a defendant would be able to show that his blood would not have
been drawn if police had not been seeking BAC information, and that police could not
have reasonably judged that a warrant application would interfere with other
pressing needs or duties.” Mitchell, 588 U.S. at __, 204 L. Ed. 2d at 1052 (emphasis
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TYSON, J., concurring in part and dissenting in part
supplied). The burden to explain and show the absence of a warrant rests solely upon
the State, not the Defendant, and judging the affidavit and application for a warrant
and probable cause rests solely with the neutral detached magistrate, not the officer.
Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919 (explaining judgment calls are to be
made “by a neutral and detached magistrate,” and not “by the officer engaged in the
often competitive enterprise of ferreting out crime”).
I agree with the Supreme Court of South Carolina’s refusal, upon very similar
facts, to apply Mitchell in a manner to purportedly shift the burden onto a defendant
to show his to be an unusual case to challenge the warrantless extraction of his blood.
State v. Key, 848 S.E.2d 315, 316 (S.C. 2020) (“We have carefully considered the
Mitchell holding and conclude we will not impose upon a defendant the burden of
establishing the absence of exigent circumstances. We hold the burden of
establishing the existence of exigent circumstances remains upon the State.”). Accord
McDonald v. United States, 335 U.S. 451, 456, 93 L. Ed. 153, 158 (1948) (“We cannot
be true to that constitutional requirement and excuse the absence of a search warrant
without a showing by those who seek exemption from the constitutional mandate that
the exigencies of the situation made that course imperative.”); United States v.
McGee, 736 F.3d 263, 269 (4th Cir. 2013) (“The government bears the burden of proof
in justifying a warrantless search or seizure.”).
The State’s brief and the trial court’s findings concede the trooper had
completed his work on the scene and avoided seeking the warrant from the
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TYSON, J., concurring in part and dissenting in part
magistrate because he did not want to wait in line or he pre-supposed the magistrate
may be busy with other cases, the alcohol evidence may dissipate, and Defendant
might die. None of these assertions or findings are exigent to supplant nor excuse
the mandate of a warrant “supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV.
VI. Constitutional Error Standard of Review
“[B]efore a federal constitutional error can be held [to be] harmless, the court
must be able to declare a belief [the error] was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967). See also
Davis v. Ayala, 576 U.S. 257, 267, 192 L. Ed. 2d 323, 332-33 (2015); N.C. Gen. Stat.
§ 15A-1443(b) (2021).
The burden falls “upon the State to demonstrate, beyond a reasonable doubt,
that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b). See also Brecht v.
Abrahamson, 507 U.S. 619, 630, 123 L. Ed. 2d 353, 368 (1993); Chapman, 386 U.S.
at 24, 17 L. Ed. 2d at 711; State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331
(2012).
The General Assembly adopted the standard in Chapman and stated the
General Statutes of North Carolina “reflects the standard of prejudice with regard to
violation of the defendant’s rights under the Constitution of the United States, as is
set out in the case of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. E. 2d
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TYSON, J., concurring in part and dissenting in part
705 (1967).” N.C. Gen. Stat. § 15A-1443 cmt. (2021).
“When violations of a defendant’s rights under the United States Constitution
[sic] are alleged, harmless error review functions the same way in both federal and
state courts.” State v. Ortiz-Zape, 367 N.C. 1, 13, 743 S.E.2d 156, 164 (2013) (quoting
Lawrence, 365 N.C. at 513, 723 S.E.2d at 331). See also State v. Autry, 321 N.C. 392,
399, 364 S.E.2d 341, 346 (1988) (“[Pre]suming arguendo that the search violated
defendant’s constitutional rights and that the evidence therefrom was improperly
admitted at trial, we find any such error in its admission harmless beyond a
reasonable doubt.”).
Our Supreme Court also deemed the assertion an unconscious driver has
consented to a blood draw based on this implied consent statute for purposes of an
impaired driving prosecution to violate the Fourth Amendment. See State v. Romano,
369 N.C. at 691, 800 S.E.2d at 652-53 (stating that NC Gen. Stat. § 20-16(b) is not “a
per se categorical exception to the warrant requirement”).
The sole basis upon which the jury was instructed to find Defendant guilty of
driving while impaired was his BAC level, the result of which was only obtained
because of a warrantless blood sample taken without his knowledge or consent and
while he was injured and unconscious.
The jury was not instructed on any other statutory grounds of appreciable
impairment. While the State’s other evidence of odor and beer cans on the scene may
have been sufficient to survive a motion to dismiss, the State failed to establish that
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TYSON, J., concurring in part and dissenting in part
the erroneous admission of Defendant’s BAC evidence, the only basis submitted to
the jury, was harmless beyond a reasonable doubt. Defendant’s conviction for driving
while impaired is properly reversed.
VII. Reckless driving to endanger
The majority and I agree the trooper’s testimony asserting Defendant was the
driver was inadmissible. Lay witness testimony is generally confined to a witness’
personal observations. N.C. Gen. Stat. § 8C-1, Rule 701 (2021); State v. Lindley, 286
N.C. 255, 257, 210 S.E.2d 207, 209 (1974) (stating that “[o]pinion evidence is generally
inadmissible ‘whenever the witness can relate the facts so that the jury will have an
adequate understanding of them and the jury is as well qualified as the witness to
draw inferences and conclusions from the facts[ ]’ ” (citations omitted)). “[O]pinion
evidence of a non-expert witness is [generally] inadmissible because it tends to invade
the province of the jury.” State v. Malone-Bullock, 278 N.C. App. 736, 740, 863 S.E.2d
659, 664 (2021) (citation and internal quotation marks omitted).
The majority and I also agree the trial court cured any improper testimony
when it gave the jury the following curative instruction:
The Court is going to sustain the defendant’s objection to
the extent [the trooper] has referred to the defendant as
“the driver.” The jury is to disregard any testimony
referring to the defendant as “the driver”, because that’s
actually an issue that you will decide as the jury.
Our Supreme Court has held that where a trial court sustains an objection and
instructs the jury to disregard improper testimony, any prejudice is normally cured.
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TYSON, J., concurring in part and dissenting in part
State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991) (“The defendant
objected[,] and his objection was sustained. The trial court then instructed the jury
to disregard the statement. When the trial court withdraws incompetent evidence
and instructs the jury not to consider it, any prejudice is ordinarily cured.” (citation
omitted)).
Defendant’s charges of reckless driving to endanger does not ipso facto arise
solely from Defendant’s purported driving while impaired. Reckless driving to
endanger is not a lesser-included offense of DWI. N.C. Gen. Stat. § 20-141.6(d) (2021)
(“The offense of reckless driving under G.S. 20-140 is a lesser-included offense of the
offense set forth in this section.”). Some additional evidence, such as excessive speed
or a passenger endangered by being located in the vehicle, is required. N.C. Gen.
Stat. § 20-140(b) (2021) (providing that “[a]ny person who drives any vehicle upon a
highway or any public vehicular area without due caution and circumspection and at
a speed or in a manner so as to endanger or be likely to endanger any person or
property shall be guilty of reckless driving.”); see State v. Dupree, 264 N.C. 463, 466,
142 S.E.2d 5, 7 (1965) (“The mere fact that defendant’s automobile was on the left of
the center line in the direction it was traveling when the collision occurred, without
any evidence that it was being operated at a dangerous speed or in a perilous manner,
except being on the wrong side of the road some 40 feet before the collision, does not
show on defendant’s part an intentional or wilful [sic] violation of G.S. [§] 20-
140(b)[.]”). Without lawful evidence of Defendant’s BAC, nor additional evidence of
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TYSON, J., concurring in part and dissenting in part
Defendant’s “reckless driving to endanger,” both of Defendant’s convictions are
properly vacated.
The failure to suppress the BAC, derived solely from extracted blood from a
warrantless search, was erroneous and was not harmless beyond a reasonable doubt.
On remand, the BAC evidence from the warrantless search should be suppressed and
excluded from the jury. I respectfully dissent.
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