State v. Hollingsworth, 8426SC1109

• Decision Date: 01 October 1985
• Docket Number: No. 8426SC1109,8426SC1109
• Citation: 334 S.E.2d 463,77 N.C.App. 36
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Kenneth Randall HOLLINGSWORTH.

Page 463

334 S.E.2d 463

77 N.C.App. 36

STATE of North Carolina v. Kenneth Randall HOLLINGSWORTH.

No. 8426SC1109.

Court of Appeals of North Carolina.

Oct. 1, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Fred R. Gamin, Raleigh, for the State.

Flanary & Davies by Kenneth T. Davies, Charlotte, for defendant.

WELLS, Judge.

I.

Defendant's first arguments concern the trial court's failure to instruct the jury on the negligence of Brian Lee Keel, Michael Wayne McCarty and Jerry L. Pew.

Contributory negligence is no defense in a criminal action. However, in a case in which defendant is charged with manslaughter by reason of his alleged culpable negligence, the negligence of a person fatally injured, or of a third person, is relevant and material on the question of proximate cause....

State v. Tioran, 65 N.C.App. 122, 308 S.E.2d 659 (1983), citing State v. Harrington, 260 N.C. 663, 133 S.E.2d 452 (1963). Therefore, if there is sufficient evidence to create in the minds of the jury a reasonable doubt that the acts of defendant constituted a proximate cause of death, defendant should be acquitted. State v. Harrington, supra. In order for negligence of another to insulate defendant from criminal liability, that negligence must be such as to break the causal chain of defendant's negligence; otherwise, defendant's culpable negligence remains a proximate cause, sufficient to find him criminally liable. See State v. Ellis, 25 N.C.App. 319, 212 S.E.2d 909 (1975). There may be more than one proximate cause and criminal responsibility arises when the act complained of caused or directly contributed to, that is, proximately caused, the death. State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980).

The negligence of Brian Lee Keel and Michael Wayne McCarty upon which defendant requested a charge to the jury was Keel's and McCarty's voluntary acceptance of a ride with a visibly drunken Hollingsworth at the wheel. ¹ While the jury could find negligence on the part of Keel and McCarty, see Beam v. Parham, 263 N.C. 417, 139 S.E.2d 712 (1965), this negligence would be, at most, a concurring proximate cause of the deaths of Keel and McCarty, and would not insulate defendant from criminal liability. Thus, the trial court's failure to instruct the jury on this issue was not error.

A different conclusion holds true on the issue of Jerry Pew's negligence. A motorist is required in the exercise of due care to keep a reasonable and proper lookout in the direction of travel and is held to the duty of seeing what he ought to have seen. Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984). The failure to do this may break the chain of causation of the original negligent actor. See id. Jerry Pew's own testimony was that there was a two to three second time lapse from when he saw the Chevrolet to when he collided with it. Defendant testified that the time from when the Chevrolet stalled in the southbound lane to when the collision occurred was five to ten seconds. Samuel Cunningham testified that thirty seconds passed from the time of the scraping of his bumper to the time of the collision in the southbound lane. Defendant also testified that the street was well-lighted. It is unclear whether the Chevrolet's lights were operating at the time and there was no testimony as to weather conditions. The speed limit along that stretch of South Boulevard is forty-five miles per hour.

Even assuming Pew's own evidence as true, there might still have been enough time for him to apply the brakes or swerve around the Chevrolet, neither of which Pew attempted. Whether Pew was negligent and, if so, whether his negligence constituted the sole proximate cause of the deaths of Keel and McCarty are questions that are for the jury to decide. See Hairston v. Alexander Tank & Equipment Co., supra. The jury should have been instructed to consider the possibility of Jerry Pew's negligence as an insulating cause of the two deaths. For this reason we must grant a new trial.

II.

Defendant next contends that the trial court erred in failing to suppress, as the fruit of an illegal seizure, the blood alcohol test performed on the blood sample taken from the unconscious defendant. This issue is one of first impression in North Carolina and will almost certainly resurface at the new trial; therefore, we consider it here.

The State contends that defendant gave implied consent to the blood test by operation of N.C.Gen.Stat. § 20-16.2 (Cum.Supp.1981), the "implied consent" statute. The relevant text follows:

20-16.2(a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent ... to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of alcoholic beverages. The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of alcoholic beverages....

(b) Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered....

Though subsection (b) does not specifically refer to an arrest requirement, it does refer to the "consent provided by subsection (a)," which contains the language "if arrested." There is strong support, however, for the proposition that the Legislature's intended focus was upon an officer's having "reasonable grounds" to suspect commission of an "implied consent" offense. See, e.g., State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973). Requiring the arrest of an unconscious driver would serve no sensible purpose. It has long been established that a blood sample is non-testimonial evidence and that Miranda warnings need not be given prior to such a seizure. See State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968), cert. denied, 396 U.S. 934, 90 S.Ct. 275, 24 L.Ed.2d 232 (1969). Additional rights granted by G.S. 20-16.2(a)(1), (3) and (4), that defendant has a right to refuse the test, a right to have a qualified person administer an additional blood test, and a right to call an attorney and select a witness within thirty minutes of the notification of his rights, could not be exercised by an unconscious defendant. This fact, plus the provision of subsection (b) that the test may be administered to an unconscious person, indicates that, in such a case, the formal requirements of subsection (a) are not meant to apply. Though not dispositive of legislative intent in 1981, it is interesting to note that 1983 amendments to this statute contain a rewritten subsection (b) that expressly dispenses with the formal requirements of subsection (a) in the case of an unconscious person. 1983 N.C.Sess.Laws, ch. 435.

Although G.S. 20-16.2 operates to imply consent by an unconscious driver to a blood alcohol test, an analysis of the law under the Fourth Amendment of the United States Constitution and Article I, § 20 of the North Carolina Constitution indicates that consent may not be necessary to seize a blood sample from an unconscious driver. Other jurisdictions have begun their analysis of this question by referring to Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In an opinion acknowledged as "somewhat formalistic" by the Ninth Circuit, United States v. Harvey, 701 F.2d 800 (1983), the Supreme Court found the drawing of blood from an objecting suspect to be permissible under the Fourth Amendment. There was probable cause to believe the defendant was drunk and he was arrested before the blood was drawn. The "seizure" was permitted under the rationale that a search incident to an arrest may be made to uncover concealed weapons or prevent destruction of evidence under the direct control of the accused. Once such a search is permitted, it is "impractical and unnecessary" to confine the search to those objects alone. Schmerber v. California, supra. The facts that probable cause existed to believe defendant had been driving under the influence of alcohol, that blood alcohol begins to diminish shortly after drinking stops, and that extraction of blood is a highly effective and virtually risk- and pain-free method of testing permitted the seizure of blood from defendant's person without a search warrant. Some jurisdictions stop at this point in the analysis and conclude that the lack of an arrest of an unconscious driver precludes a "search incident to an arrest" analysis. See, e.g., People v. Superior Court of Kern County, 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1145 (1972); State v. Richerson, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657 (1975); Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled on other grounds, Anchorage v. Geber, 592 P.2d 1187 (1979); State v. Towry, 26 Conn.Sup. 35, 210 A.2d 455 (1965).

Other jurisdictions have interpreted Schmerber to mean that no arrest is necessary if there exist probable cause to arrest and exigent circumstances, such as the body's dissipation of blood alcohol. See State v. Mitchell, 245 So.2d 618 (Fla.1971); State v. McMaster, 118 N.J.Super. 476, 288 A.2d 583 (App.Div.1972); DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732 (1972).

The better view continues the analysis in light of Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Cupp, police took scrapings from under the fingernails of a man suspected of strangling his wife. The scrapings were taken after defendant began rubbing his hands together behind his back. At the time he objected to having the...