State v. Romano

• Decision Date: 19 April 2016
• Docket Number: No. COA15–940.,COA15–940.
• Citation: 785 S.E.2d 168,247 N.C.App. 212
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Joseph M. ROMANO, Defendant.

247 N.C.App. 212

785 S.E.2d 168

STATE of North Carolina

v.Joseph M. ROMANO, Defendant.

No. COA15–940.

Court of Appeals of North Carolina.

April 19, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Derrick C. Mertz, for the State.

Appellate Defender, Glenn Gerding, by Assistant Appellate Defender, Constance E. Widenhouse, for Defendant–Appellee.

HUNTER, JR., ROBERT N., Judge.

The State appeals following an order granting Joseph Mario Romano's (Defendant) pre-trial motion to suppress. The State contends the trial court erred in suppressing blood draw evidence Sergeant Ann Fowler ("Fowler"), of the Asheville Police Department, collected from a nurse who was treating Defendant. After appropriate appellate review, we affirm the trial court.

I. Factual and Procedural Background

On 17 February 2014, Defendant was charged with driving while impaired ("DWI") and driving while license revoked after receiving a previous impaired driving revocation notice. On 6 October 2014, a Buncombe County grand jury indicted Defendant for habitual impaired driving and driving while license revoked after receiving a previous impaired driving revocation notice.

On 26 January 2015, Defendant filed a pre-trial motion to suppress. The record evidence and hearing transcript tended to show the following.

On 17 February 2014, Asheville police received a call that a white male, age thirty to thirty-five, wearing a gray sweater backwards, stopped his SUV on Wood Avenue near Swannanoa River Road. The man got out of the SUV and stumbled towards the rear entrance of Frank's Roman Pizza while carrying a large bottle of liquor.

Officer Tammy Bryson ("Bryson"), of the Asheville Police Department, went to the Wood Avenue intersection and found an SUV parked behind another vehicle at a red light. She searched for the driver while Officer Rick Tullis ("Tullis") inspected the SUV. Bryson and Fowler found Defendant sitting behind Frank's Roman Pizza, about 400 feet from the SUV, drinking from a 1.75 liter bottle of Montego Bay Light Rum. He was wearing a gray sweater backwards and he was covered in vomit.

When Bryson approached, Defendant put the liquor bottle down and staggered in an attempt to stand up. Bryson told him to sit down. Defendant's speech was slurred, his eyes were bloodshot and glassy, and he smelled of alcohol. Then, Bryson handcuffed Defendant. Defendant became very agitated and cursed at the police. He looked towards the SUV and saw a tow truck nearby, and yelled, "What are you doing with my car [expletive]? That's my car."

Fowler asked Defendant to complete field sobriety tests but he was "belligerent" and "would not follow instructions." Fowler kept trying to stand Defendant upright but he kept falling down, and Fowler quit trying to conduct the sobriety tests because it was "unsafe." Fowler administered a roadside portable alco-sensor and it indicated Defendant was impaired by alcohol.

Tullis inspected the SUV and found the hood was still warm and there were no keys inside the SUV. He checked the vehicle's registration and discovered it belonged to Defendant. The keys to the SUV were found in Defendant's left pants pocket.

The police officers called an ambulance, and another officer, Officer Loiacono, rode in the ambulance with Defendant to the hospital. Bryson followed the ambulance to the hospital. Fowler stayed at the intersection until the SUV was towed, and then went to the hospital.

At the hospital, Defendant became "combative," kicking and spitting while hospital staff tried to treat him. Fowler talked to Defendant and calmed him down for moments at a time, but he then became "irate ... to the point that the hospital [staff] had to give him medication to calm him down."

Fowler described the following: "[The nurse] knew we wanted to draw blood sooner or later. We had to wait until [Defendant] calmed down. Once he was sedated, he was out, and the hospital was drawing their blood [sic], [the nurse] had drawn enough [blood] to where we could use what she had drawn." This happened, as Fowler described, "[p]retty much right off the bat. They knew he was a DWI [sic]. They knew that he was going to be physically arrested, and we would have somebody with him until he was released from the hospital." Once Defendant was sedated, Fowler and Bryson stepped out of the hospital room.

Fowler testified she "always" tries to collect a chemical analysis of a suspect's blood alcohol level when they are suspected of DWI. According to her, collection is dependent upon "the [suspect's] willingness ... who has the evidence inside their body, if [sic] they are willing to give that evidence to [police] or not." Defense counsel asked her, "Did you think you would be able to get a blood sample [from Defendant?]" She answered, "If not, I would have gotten a search warrant." Fowler did not attempt to get a search warrant for Defendant's blood at any point, nor did she direct any of her subordinate officers to obtain a search warrant.

Rather, Fowler waited until the nurse drew a "large [vial] of blood." The nurse told Fowler that the police could use the blood and Fowler said to her, "Let me make sure [Defendant] is unconscious." Fowler confirmed Defendant was sedated and unconscious and "advised him of his rights." She "attempted to wake [Defendant] up to get a verbal response from him, but he did not respond to [her]." Nevertheless, she took possession of the excess blood the nurse had drawn.

Defendant was never conscious to be advised of his rights, and consequently, he never refused the blood draw or signed an advice of rights form. None of the police officers obtained a search warrant from the magistrate's office, which is "a couple of miles" from the hospital.

The parties were heard on Defendant's motion to suppress on 2 February 2015. In addition to his motion to suppress the blood evidence, Defendant moved to suppress the discovery of his driver's license and SUV keys, which the trial court denied. In a 23 March 2015 order, the trial court granted Defendant's motion to suppress the blood evidence. The trial court made the following findings of fact, inter alia:

5. Upon arrival at the hospital, the Defendant remained belligerent and also became combative toward the medical staff and the officers present. He fought with the staff by flailing about, spitting and kicking. The medial staff had to tie his hands down and the officers attempted to physically restrain his legs....

6. Sgt. Fowler discussed with the treating nurse that she would likely need a blood draw for law enforcement purposes;

7. At some point prior to any blood draw, the medical staff determined it was necessary to medicate the Defendant in order to calm him down. Prior to this point, the Defendant had not lost consciousness and was in no way cooperative with medical staff or law enforcement. Sgt. Fowler had not yet advised the Defendant of his chemical analysis rights nor had she requested that he submit [ ] to a blood draw;

8. After being medicated, the Defendant lost consciousness to some degree. The restraints were then removed and physical restraint by medical staff or law enforcement personnel was no longer necessary. Sgt. Fowler left the hospital room for some period of time and, in her absence, the treating nurse drew blood from the Defendant at 4:47 [p.m.]. This blood draw was for medical treatment purposes, but the nurse drew additional blood beyond what was needed for medical treatment purposes. When Sgt. Fowler returned to the hospital room, the nurse offered her the additional blood for law enforcement use. Sgt. Fowler initially declined receipt of the blood on the basis that she first wanted to see if the Defendant would consent to the blood draw or receipt of the evidence. To that end, Sgt. Fowler attempted to advise the Defendant of his chemical analysis rights at 4:50 [p.m.], less than fifty minutes after his transport to the hospital. Sgt. Fowler found the Defendant to be in an unconscious state at the time and she was unable to wake him up. Based upon his unconscious state, Sgt. Fowler then took custody of the excess blood for law enforcement testing purposes. Due to his medically induced state, the Defendant was rendered unable to meaningfully receive and consider his blood test rights, unable to give or withhold his informed consent, and/or unable to exercise his right to refuse the warrantless test;

9. Sgt. Fowler expressly relied upon.... [N.C. Gen. Stat.] § 20–16.2(b) wherein a person who is unconscious or otherwise in a condition that makes the person incapable of refusal may be tested. As such, Sgt. Fowler did not obtain, or attempt to obtain, a search warrant prior to taking custody of the blood sample. Sgt. Fowler did not believe that any exigency existed, instead she relied on the statutory per se exception;

10. At all relevant times during the encounter, there were multiple law enforcement officers present and available to assist with the investigation both at the scene and later at the hospital.... There were a sufficient number of officers present such that an officer could have left to drive the relatively short distance (only a few miles) to the Buncombe County Magistrate's Office to obtain a search warrant. There were Magistrates on-duty and available at the time. Sgt. Fowler was familiar with the search warrant procedure and had previously obtained blood search warrants in other cases. The "blood draw" search warrant utilizes a fill-in-the-blank form and is not a time-consuming process. The Defendant was purposefully rendered into an unconscious or sedated state by the medical intervention. The Defendant never consented to any blood draw or to law enforcement taking possession of his blood....

13. Pursuant to Missouri v. McNeely, [––– U.S. ––––,] 133 S.Ct. 1552 (2013), "a warrantless search of the person is reasonable only if it falls within a recognized exception."

Based upon these findings of fact and the totality of the circumstances, the trial...