State v. McCall

Decision Date05 February 2020
Docket NumberOpinion No. 27943,Appellate Case No. 2015-001097
Citation429 S.C. 404,839 S.E.2d 91
CourtSouth Carolina Supreme Court
Parties The STATE , Respondent, v. Terry Edward MCCALL , Appellant.

Appellate Defender Lara Mary Caudy, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., both of Columbia, and Solicitor William Walter Wilkins, III, of Greenville, for Respondent.

JUSTICE HEARN :

In this appeal from a felony DUI conviction, Appellant Terry McCall contends the warrantless collection of his blood and urine at the direction of law enforcement pursuant to Section 56-5-2946 of the South Carolina Code (2018) violates the Fourth Amendment. We affirm because exigent circumstances existed to support the admission of his blood and urine test

results.

FACTUAL BACKGROUND

On the evening of March 4, 2012, in Greenville, McCall's Ford Explorer crossed a center turn lane and veered into oncoming traffic. He struck Robert Suddeth's Chevrolet pickup truck head on as Suddeth and his daughter were returning home from her volleyball practice. The collision left McCall and Suddeth injured, and both had to be extricated from their vehicles by the "jaws of life." Suddeth's daughter suffered only minor physical injuries, but Suddeth's injuries were life-threatening. Fortunately, a firefighter was driving nearby, and after narrowly avoiding the crash, he stopped to help. To reach Suddeth, he climbed into the bed of the pickup truck and entered the cab through the back window where he immediately realized that Suddeth was near death. Law enforcement, emergency personnel, and even the coroner arrived shortly thereafter, as it was uncertain whether Suddeth would survive.

Trooper David McAlhany and Sergeant Wes Hiatt of the South Carolina Highway Patrol were two of the many law enforcement personnel at the scene. Hiatt quickly noticed empty beer cans inside the Ford Explorer. Believing that alcohol may have played a role in the collision, Hiatt questioned McCall while he was strapped onto a stretcher in the back of an ambulance. McCall denied drinking any alcohol and said his brakes had failed. Although McCall's breath did not smell of alcohol, Hiatt believed he was impaired because McCall's eyes were "glassy and his pupils were dilated." Hiatt also informed McAlhany of his suspicion that McCall was under the influence of a substance other than alcohol.

In addition to McAlhany and Hiatt, approximately eight other officers assisted at the scene, most of them primarily responsible for traffic control on this heavily traveled road during evening rush hour. The Major Accident Investigation Team also arrived and began investigating the accident.

The ambulance arrived at the hospital approximately thirty minutes after emergency officials first reached the accident. However, McAlhany—the primary investigator—remained at the scene, interviewing several witnesses as part of his investigation. Approximately two hours after the crash, McAlhany drove to the hospital to interview McCall and found him lying on a stretcher in the hallway of the critical care unit. McCall again contended his brakes failed because there were no calipers on the wheels to hold the brake pads in place, essentially meaning the truck lacked functional brakes. According to McAlhany, McCall seemed to be impaired, as he appeared "sleepy" and would "open his eyes real wide" when answering questions. McAlhany arrested McCall for felony DUI resulting in great bodily injury at 8:13 p.m.—two hours and twenty-three minutes after the crash. McAlhany informed McCall of his implied consent rights, reading him a form that stated in part:

• You are under arrest for Felony Driving Under the Influence (Felony DUI), Section 56-5-2945, South Carolina Code of Laws 1976, as amended, or a law enforcement officer has probable cause to believe that you have violated this section.
• The officer has directed that samples be taken for alcohol and/or drug testing.
• The samples will be taken and tested according to Section 56-5-2950 and SLED policies.
• Pursuant to Section 56-5-2946, you must submit to either one or a combination of chemical tests for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs.
• The resistance, obstruction, or opposition to testing pursuant to Section 56-5-2946 is evidence admissible at trial.

According to McAlhany, McCall agreed to a blood and urine test

and signed the implied consent form while lying on the stretcher. Further, the nurse administering the tests noted that she would never collect a person's blood if he resisted, and that McCall at no point objected to the tests. However, McCall disputes that he signed the form. Ultimately, the nurse collected McCall's urine sample at 8:45 p.m. and retrieved a blood sample at 9:05 p.m.—three hours and fifteen minutes after the accident. The blood sample tested positive for methamphetamine and benzodiazepines, including Lorazepam and Klonopin, and the urine sample confirmed these results.

Before trial, McCall moved to suppress the blood and urine test

results, arguing that law enforcement violated his Fourth Amendment rights by directing blood and urine tests without a warrant. McCall asserted section 56-5-2946 is unconstitutional because it establishes a per se exception to the warrant requirement. Conversely, the State contended the section satisfies the consent exception to the warrant requirement. Alternatively, the State argued that even if section 56-5-2946 is unconstitutional, McCall expressly consented to the tests, and furthermore, exigent circumstances justified the warrantless search. The trial court denied the motion to suppress, finding exigent circumstances existed and that section 56-5-2946 by itself established consent.

Thereafter, on the morning of the second day of trial, McCall informed the trial court that he had a "conflict" with his attorney, and as a result, it would be best if the court relieved counsel. McCall further sought a continuance to allow him time to hire another lawyer, which the court denied. The court also asked McCall whether he understood the dangers and risks of proceeding pro se, to which he responded affirmatively. After finding that McCall's motions were a dilatory tactic for the purpose of delay, the court relieved his attorney, appointed standby counsel, and required McCall to proceed pro se. At the conclusion of the three-day trial, the jury found McCall guilty, and the court sentenced him to fifteen years' imprisonment. McCall appealed to the court of appeals, and this case was transferred pursuant to Rule 203(d)(1)(A)(ii) and 204(a), SCACR.

ISSUE

Did the warrantless blood and urine tests

pursuant to Section 56-5-2946 of the South Carolina Code (2018) violate McCall's Fourth Amendment right to be free from unreasonable searches?1

DISCUSSION

We begin with the core protections afforded by the Fourth Amendment—that individuals be free from unreasonable searches and seizures by their government. U.S. Const. amend. IV. It is well-settled that drawing blood from an individual is a search within the purview of the Fourth Amendment. Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (noting that blood tests "plainly constitute searches of ‘persons’ "). A warrantless search is per se unreasonable unless a recognized exception applies, which the State has the burden to prove.

State v. Gamble, 405 S.C. 409, 416, 747 S.E.2d 784, 787 (2013) ; State v. Wright , 391 S.C. 436, 442, 706 S.E.2d 324, 327 (2011). Stated differently, a search without a warrant is reasonable "only if it falls within a specific exception to the warrant requirement." Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

In the last decade, the United States Supreme Court has issued three opinions concerning the constitutionality of warrantless testing following a suspected DUI. Missouri v. McNeely , 569 U.S. 141, 156, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (holding whether the warrantless blood testing of a suspected drunk driver qualifies as an exigent circumstance involves a "case-by-case analysis under the totality of the circumstances"); Birchfield v. North Dakota , 579 U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016) (holding a warrantless breath test, but not a blood test, is valid as a lawful search incident to arrest); Mitchell v. Wisconsin , 588 U.S. ––––, 139 S. Ct. 2525, 2530–32, 204 L.Ed.2d 1040 (2019) (adopting a general rule that law enforcement may obtain a blood test without a warrant from an unconscious motorist under the exigent circumstances exception). Each case focused on a different exception to the warrant requirement, including the exigent circumstances exception invoked today.

This well-recognized exception to the warrant requirement may be invoked "when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." McNeely , 569 U.S. at 148–49, 133 S.Ct. 1552 (citing Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ). Generally, whether exigency exists is also determined by the totality of the circumstances. Id. While the exception may apply in numerous settings, see id. at 148–49, 133 S.Ct. 1552 , in the context of a suspected impaired driver, the rationale derives in part from the destruction of evidence—that evidence of impaired driving would dissipate in the bloodstream during the time needed to procure a warrant. Two Supreme Court cases guide our exigency discussion: Schmerber and McNeely .

In Schmerber , the Supreme Court held the specific facts therein permitted the warrantless blood draw over the defendant's objection because the police officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to...

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2 cases
  • State v. McGee
    • United States
    • Iowa Supreme Court
    • May 14, 2021
    ...the South Carolina Supreme Court utilized the Mitchell plurality's standard in a case of controlled substances. See State v. McCall , 429 S.C. 404, 839 S.E.2d 91 (2020). In McCall , the driver was involved in a very serious accident. Id. at 92. Officers "quickly believed that [the driver] w......
  • State v. German
    • United States
    • South Carolina Supreme Court
    • April 5, 2023
    ...our jurisprudence already has considered our implied consent statutes, we have not yet directly addressed their constitutionality. In McCall, we reserved question for a future case: "While we leave this question for another day, we do note numerous courts have cast doubt on the constitution......

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