Article from: www.thenewspaper.com/news/45/4563.asp
11/10/2014North Carolina: Court Denies Lawyer In DUI Blood Draw
North Carolina Appeals Court denies DUI suspect access to a lawyer during a forced blood draw.
Several states have begun cracking down on the the practice of drawing blood by force from motorists in light of the US Supreme Court's McNeely decision (view case), but not North Carolina. The state Court of Appeals decided last week that motorists suspected of driving under the influence of alcohol (DUI) may not have access to legal counsel if they are having their blood forcibly drawn pursuant to a search warrant.
Matthew Smith Shepley, a 26-year-old student, was not behind the wheel of a car, or even a motorcycle at 11:30pm on November 22, 2011. Instead, he was pulled over on 20th Street in Buncombe County while riding a scooter with a non-DOT approved helmet. His driving showed no signs of impairment, and he pulled over in his girlfriend's driveway.
During the traffic stop, Deputy Dean Hannah smelled alcohol and took Shepley into custody. At the Buncombe County Detention Center, Officer Travis Jones apprised Shepley of his right under state law to call an attorney and have a witness present for the breath test, and Raquel Harvey arrived to watch. Shepley asked for the breathalyzer machine to be calibrated, but when the officer refused, Shepley said he would not submit to the test.
Officer Jones went to obtain a warrant and ordered Harvey out of the room while Shepley's blood was taken. The State Bureau of Investigation said the result was a blood alcohol content of 0.14. Shepley was convicted and fined $1250, charged $762 in fees and received a sentence of 7 days in prison plus a year of probation on the condition he attend a alcohol treatment program. His driver's license was also suspended. Shepley's public defender appealed on the grounds that the initial stop was invalid, Shepley did not receive a speedy trial, and the drawing of blood without a witness was illegal. The three-judge appellate panel disagreed.
"The plain language of the [witness] statute limits its application to situations in which a defendant consents to take a breathalyzer or other test designated by the officer," Judge Sanford L. Steelman Jr wrote foor the court. "We hold that, because defendant's blood was drawn pursuant to a search warrant obtained after he refused a breath test of his blood alcohol level, he did not have a right under North Carolina General Statutes Section 20-16.2 to have a witness present."
The panel also held that riding a scooter without a DOT-approved helmet was justification for the stop. A copy of the decision is available in a 120k PDF file at the source link below.
Source: North Carolina v. Shepley (Court of Appeals, State of North Carolina, 11/4/2014)
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