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Court Fails To Draw Line In DWI Blood Draw Case

My court story of the month for Carolina Journal is on the legality of forced blood tests in DWI cases. The article in full:

RALEIGH — Drunks don’t always make the most cooperative suspects. But it’s not clear how aggressively police can pursue evidence, such as blood samples, when they apprehend a suspect who’s suspected of driving while intoxicated. And a recent ruling by the state Court of Appeals hasn’t settled the matter.

On Dec. 28, 2010, Chatham County Sheriff’s Deputy Justin Fyle responded to a call reporting suspicious activity. Fyle found Ronald McCrary apparently sleeping in a red Isuzu Trooper parked poorly in a driveway of another person’s home. When Fyle opened the car’s door, he noticed a nearly empty bottle of vodka. McCrary smelled of alcohol, had red and glassy eyes, and couldn’t stand up to perform field sobriety tests. Fyle arrested McCrary for driving while impaired.

Soon afterward, McCrary began complaining of chest pains and demanded to be taken to the hospital. Emergency medical services personnel were called. At that point, Fyle stated his plan was either to bring McCrary into the sheriff’s office for processing if EMS personnel cleared him or obtain a blood sample without a warrant if McCrary were transported to the hospital.

Fyle’s sergeant ordered McCrary to be taken to the hospital, where his “belligerent conduct accelerated.” McCrary also refused to provide a blood sample; one was taken without his consent.

McCrary eventually was convicted of driving while impaired and communicating threats. He was sentenced to consecutive 120-day prison terms on the charges.

Drawing blood is a search

At trial and again before the N.C. Court of Appeals, McCrary argued that the results of the blood sample should be suppressed.

Federal and state courts have recognized that taking blood from someone amounts to a search under both the U.S. and North Carolina constitutions. Searches conducted without a properly issued warrant are unreasonable unless conducted with probable cause and under exigent circumstances. And last year, the U.S. Supreme Court in a case called Missouri v. McNeely held that “in drunk-driving investigations, the 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.” In McNeely, an officer drove a suspect to a hospital to obtain a blood sample without first obtaining a warrant after McNeely said he would refuse a breath test.

The question before the appeals court was whether the circumstances in McCrary’s case rose to the level of an exigency. Two of the three judges on the Court of Appeals’ panel held that it might, although a trial court needed to make that determination.

“We find this case to be more similar to State v. Granger than to McNeely,” wrote Judge Donna Stroud for the court.

In Granger, the Court of Appeals held that exigent circumstances existed when a DWI suspect required hospital care and no other officer was available to stay with him while the officer left to obtain a warrant.

The appeals court ruled that the trial judge should have made specific findings of fact about whether a magistrate had been available and how much time it would have required to obtain a warrant.

Judge Ann Marie Calabria dissented from the majority holding, finding that Fyle overstepped his authority and it was not necessary to ask a trial court to look for more facts.

“In the instant case, the trial court’s unchallenged findings demonstrate that Deputy Fyle’s actions fall squarely within the ambit of the example articulated by McNeely.”

The key to Calabria was that Fyle had decided to obtain a blood sample well before any exigent circumstances may have developed at the hospital.

“Deputy Fyle simply ignored our Supreme Court’s long-established directive that ‘a search warrant must be issued before a blood sample can be obtained,’” she wrote.

“He then sought to impermissibly benefit from his failure to seek a warrant by asserting that an exigency existed at the moment the blood draw was to occur. At this point, it was far too late for Deputy Fyle to consider, for the first time, whether a warrant could reasonably be obtained. ”

N.C. Court of Appeals rulings are binding interpretations of state law unless overruled by a higher court. Because of Calabria’s dissent, the state Supreme Court is required to hear the case should McCrary appeal.

The case is State v McCrary, (13-1059).

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Mary McCraw speaks

And not about why Heath Morrison was forced out as superintendent but rather McCraw is demanding an investigation into how an internal investigation on Morrison was leaked to the press. Which is to say that McCraw is very much a part of the problem over at CMS — the school system can’t rebuild public trust as long as it’s conducting a witch hunt for those responsible for keeping the public informed of the true reason for departure of its top executive.

Or as Rick Thames, Charlotte Observer executive editor, put it:

“The problem here isn’t a leak. The real problem is that the school board has starved the public, and continues to starve the public, of the answers it deserves about the board’s split with the superintendent.”


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And speaking of the Panthers

Speaking of the Carolina Panthers, James Dator of Cat Scratch Reader offers up an interesting column today on the situation facing the team. A highlight:

We’re stuck in an emotionally abusive relationship right now, all of us. Lost in an endless cycle of being told things will get better and never see it materialize. This team does just enough every five years to make you believe again, only to have the air sucked out of the room in the next second.

This isn’t about boycotting the Panthers or any foolish veiled threat like that, it’s about the realization that this team is in deep, deep trouble. I’m not talking about salary cap trouble, or bad players trouble — it’s bigger than that. A systemic lack of realization of what the NFL is, right now, in 2014. It’s a steadfast adherence to some belief of what football “should be,” a nonsensical admiration for the Steelers that shapes every decision this team makes. Following instead of leading, while young dynamic coaches with new thinking are taking control of the NFL.

All the while we hang onto some notion of direction because “defense wins championships.” Well, the defense sucks, there’s no offensive line and the only two things going for this team right now are a quarterback with no help and a middle linebacker who can’t affect the plays around him.

The worst part: You could see this coming from a mile away. Most of us could, or blinded ourselves to the possibility out of faith and hope. Removing the blinders we saw a team that was poised to regress, now I can’t stop laughing at the April iteration of myself that had the hubris to believe 9-7 was as bad as it could be.

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The Panthers bottom out

The most depressing stat from a brutal performance by the Carolina Panthers up in Philly: Cam Newton was sacked nine times while rushing twice for a total of six yards. Ouch. And that sums up a lot of what’s wrong with the Panthers’ offensive this year: awful line play and a once highly mobile quarterback that isn’t quite so mobile this season. Not-so-mobile Cam just isn’t an elite NFL QB, even when when’s playing at his best, which he obviously wasn’t against the Eagles.

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Political quotes of the moment

On the Democrats’ poor showing in North Carolina on Tuesday, courtesy of the UPoR:

“It’s going to be very difficult for Democrats. They had pretty low expectations in state legislative races this time around, and they didn’t even manage to meet those.”

— Andrew Taylor, an N.C. State University political scientist.

“Once again you see the Democrats using a stale 20th-century-type pitch, and they get one-third of the white voters in a state that’s about 80 percent white. It seems to me Democrats have to learn to communicate with the majority like Republicans have to learn to better communicate with minorities.”

— John Davis, a longtime Raleigh political analyst.

“It’s always a mistake when Democrats let their message be about how to divide the pie rather than how to grow the pie.”

— Democratic political consultant Gary Pearce

You can read the rest of Jim Morrill’s story here.

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Mecklenburg County commission chair battle

From a Charlotte Observer editorial:

In his first election, in May 2012, Democrat Trevor Fuller finished third. In his next, in November 2012, he finished third. In his next, in May 2014, he finished third. In his next, on Tuesday, he finished third.

Now he believes he deserves to be chairman of the Mecklenburg Board of County Commissioners, despite voters overwhelmingly backing fellow Democrat Pat Cotham.

That shows chutzpah, and a complete disrespect for the citizenry.

Well yes, but chutzpah seems to be something Fuller is especially good at. He was, after all, the BOCC chair that helped push through the ill-fated and very ill conceived referendum to raise the county’s sales tax. And before that, when ousting Cotham as chair a year ago, he gave us this memorable quote:

“It is imperative that we huddle together and chart a new way forward,” Fuller said. “… There is an expectation across North Carolina that Mecklenburg County is going to lead the way. We need to reclaim that place, because there is a sense across the state that we have faltered.”

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Mecklenburg voters reject sales tax increase

And did so by a wide margin — 61 percent against and only 39 percent in favor. That perhaps shouldn’t come as a surprise, as this was an absolute train wreck of a tax increase proposal: the idea was floated very late, without the five county commissioners in favor having reached out to the community at large to build support for the measure before voting to put the proposed tax hike before voters. Unsurprisingly, there was a great deal of uncertainty as to exactly what the extra money that would have been generated would have been used for. To make matters worse, arguing for a local sales tax increase largely for education, which is primarily a state responsibility, before the General Assembly passes its budget doesn’t exactly demonstrate that this was a serious proposal.

To take that a step further, I’d even say that the proposal was little more than state-level partisan politics, with most of the Democrats on county commission voting for the sales tax hike in large part because it reinforced the message that Democrats were running on statewide: the Republican GOP wasn’t providing enough education funding. That message wasn’t effective statewide and didn’t go down any better in Mecklenburg County, where voters rightly recognized it as the bad idea as that it was.

Bonus thought: Sales taxes are regressive and an easy way for pols to escape responsibility for the cost of local government. And Charlotte has the highest combined cost of local government (city plus county) for municipalities of population of 25,000+ in the state.

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Scofflaw Patrick Cannon voted last week

The Charlotte Observer is reporting that the felon Patrick Cannon cast an early ballot on Oct. 30. The obvious issue: Under state law, a felony conviction takes away one’s right to vote until you’ve served your sentence, including any probation or parole. So Cannon shouldn’t have voted and the U.S. Probation Office here in Charlotte says that it will be giving him a call tomorrow and it’s quite possible that Cannon will be told by a federal judge report to prison immediately.

And the real question from this: Is Cannon so incredibly stupid to not know he shouldn’t have voted, so incredibly arrogant to think that no one would notice that he voted when he shouldn’t have, or both? In any case, Cannon’s actions amount to a middle-finger salute to the city of Charlotte and its many law abiding citizens.

Bonus observation: Patrick Cannon will long serve as the poster boy for election fraud in North Carolina, even though his actions wouldn’t have been prevented by a voter ID requirement.


Heath Morrison forced out?

Well, that will teach me to say something nice about a bureaucrat… it seems that Heath Morrison may have been forced out as CMS superintendent. Or at least, apparently, resigned after an internal investigation into alleged misconduct.

As the Charlotte Observer reports:

An October investigation by the Charlotte-Mecklenburg Schools legal department into Superintendent Heath Morrison raised questions about a “culture of fear” among district staff and cost overruns at new schools.

Attorneys broached both subjects as part of interviews with numerous current and former employees in the days before he abruptly announced he would resign.

Morrison on Tuesday refused to comment on reports that school board members considered terminating his contract before he suddenly agreed to step down Monday.

But multiple sources confirmed to the Observer that Morrison announced his resignation just days after the school board’s general counsel completed an extensive report that investigated allegations of misconduct, including belittling staff members.

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Heath Morrison resigns

Is there a senior management job outside of athletics with a higher turnover rate than school superintendent? In any case, the Charlotte Mecklenburg Schools are again in the market for a superintendent, and the search is going to take some time, which means that CMS education policy decisions will be on hold for awhile.

Bonus observation: The decision to leave a highly sought-after job near the top of one’s profession to care for an ailing relative is a difficult one. The Meck Deck wishes Mr. Morrison and his family good health and good luck in his future endeavors.

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November 2014
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