State of North Carolina                In the General Court of Justice

___________ County      

North Carolina                                                          

v.                                                                                               Motion to Supress Blood Test Results


Mark A. Fletcher,                                                        


NOW COMES the Defendant, pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 20 of the North Carolina Constitution, and moves to suppress the test results from the blood sample taken on June 1, 2008.  In support of this motion the Defendant shows as follows:

              On June 1, 2008, the Pinehurst Police Department conducted a license checkpoint where the Defendant was stopped.  After failing to complete the field sobriety tests to the officer’s satisfaction, the Defendant was transported to the Pinehurst Police Department where he was asked to submit to an Intoximeter test.  He refused.  The officer then transported the Defendant to Moore Regional Hospital where he was “compelled” to take a blood test.  See Ex. A, B.  The Defendant did not voluntarily submit to the blood test.  Ex. B.  The form signed by the Defendant only informed him that a breathe sample could be taken which he refused to submit to.  Ex. C.

              The withdrawal of a blood sample from a person is a search subject to protection by Article I, § 20 of the North Carolina Constitution and the Fourth Amendment to the United States Constitution. See State v. Welch, 316 N.C. 578, 342 S.E.2d 789; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966).  The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. See State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994).

              “[U]nder our state constitution, a search warrant must be issued before a blood sample can be obtained, unless probable cause and exigent circumstances exist that would justify a warrantless search.”  State v. Carter, 322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988) citing Welch, 316 N.C. 578, 342 S.E.2d 789.  “The invasion of a person's body to seize blood, saliva, and hair samples is the most intrusive type of search; and a warrant authorizing the seizure of such evidence must be based upon probable cause to believe the blood, hair, and saliva samples constitute evidence of an offense.” State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 728 (2000). 

              It is unclear from the discovery provided to the Defendant how much time had passed between the stop and the compelled blood test.  There is no evidence contained in the discovery that states that Officer Powers reasonably believed that a delay due to having to obtain a search warrant would result in the dissipation of the percentage of alcohol n the Defendant’s blood.  The Defendant recognizes that the Administrative Office of the Courts has prepared a form for the purpose of obtaining a search warrant for a blood sample due to a suspected driving while impaired charge.  Ex. D.   There is not evidence that exigent circumstances existed such that the warrant requirement would not apply in this case.  The Defendant did not consent to the taking of his blood at the officer’s direction and was unlawfully searched when the technician withdrew the blood.

              Wherefore, the Defendant respectfully requests that this Court suppress the results of the blood test because the sample was obtained in violation of the Defendant’s rights under the North Carolina and United States Constitutions.

              Respectfully submitted, this the 3rd day of February, 2009. 

                                                                      The Law Office of Bruce T. Cunningham, Jr.

                                                                      By:               _________________________________

                                                                                    Bruce T. Cunningham, Jr.

                                                                                    225 North Bennett Street

                                                                                    Southern Pines, NC  28387


                                                                                    910.695.0983 – Fax


Certificate of Service

              This is to certify that the undersigned has this date served the above Motion upon the attorney for the state, Assistant District Attorney Warren McSweeney, by hand delivery.

              This is the3rd day of February, 2009.

                                                                      By:              _________________________________

                                                                                    Bruce T. Cunningham, Jr.