NORTH CAROLINA                                                        IN THE GENERAL COURT OF JUSTICE

                                                                                    DISTRICT COURT DIVISION

_____________ COUNTY                                             FILE NO: 




VS.                                          ORDER



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THIS CAUSE, coming on to be heard and being heard before the Honorable _________, District Court Judge for the 27-B Judicial District presiding over the September 16, 2008 Special DWI Criminal Session of District Court for ____________ County pursuant to the Defendant’s Motion to Suppress the results of a blood test in connection with the Defendant’s arrest for impaired driving;

AND IT APPEARING TO THE COURT, that the State of North Carolina was represented by _____________________________, Assistant District Attorney and the Defendant was present and represented by her Attorney, David R. Teddy;

AND THE COURT, having heard testimony from Officer ________ of the _________ Police Department and the Court having considered arguments of counsel makes the following preliminary:


1.              On January 12, 2008, at approximately 12:42 a.m.; Officer _______ was on routine patrol within the city limits of __________, N.C.   On the date and time in question; Officer _________ was traveling South on Lafayette Street near Wendy’s restaurant.  As Officer _________ passed through the intersection of Lafayette Street and Earl Road he looked to his left and noticed a vehicle near the Sonic fast food restaurant.  The vehicle appeared to be sitting in the roadway with an open car door.  In addition; the headlights on the vehicle were not activated. 

2.              After noticing the vehicle; Officer __________ decided to circle around to the location where he saw the car.  Officer _________ turned left on Pine Street; and then merged on to US Highway 74; heading east.  Officer ________ then traveled to the intersection of Highway 74 East and Dekalb Street.   Officer ___________ then turned left on to Dekalb Street.  Officer _________ then cut through the parking lot of Personnel Services Unlimited in an effort to return to the location where he previously observed the vehicle.  As Officer ________ approached the location where he previously observed the vehicle, he noticed a vehicle coming towards him in the opposite direction.  The vehicle appeared to be similar to the vehicle that Officer _________ previously observed in the roadway.  However, as Officer _________ passed by this particular vehicle; he noticed that the headlights were on and there was nothing unusual about the manner in which the vehicle was being driven. 

3.              Officer __________ subsequently drove to the intersection of Earl Road and Lafayette Street.  Officer ____________ turned right on to Lafayette Street heading North. Officer _________ then turned right off Lafayette Street on to a side street that connects Lafayette Street with Washington Street.  Officer __________ then turned left on to Washington Street; heading north. 

4.              After turning North on Lafayette Street; Officer _________ noticed a vehicle that appeared to be the same vehicle he had just encountered on Earl Road.  Officer ________ followed the vehicle for a distance of approximately one hundred yards during which time Officer _________ noticed the vehicle drift within the north bound lane on two separate occasions; such that the driver’s side tires touched the yellow line that divides the north bound and south bound lane of Washington Street. 

5.              After observing the vehicle travel approximately 100 yards; Officer _________ activated his blue light.  The driver subsequently turned right into a private driveway. When turning into the residence; the right side tires of the vehicle ran over the curb leading into the driveway.

6.              After the vehicle was stopped; Officer __________ approached the driver and asked for her license and registration.  The Defendant explained to Officer ________ that she was at her residence; and her driver’s license was upstairs in her apartment.  The Defendant offered to go upstairs to retrieve the license.  However; Officer __________ indicated that he would check the license over the radio.  The Defendant complied with the officer’s request for identification information and the Officer was able to confirm the status of the defendant’s driver’s license by speaking with the dispatch officer.

7.              While talking with the Defendant; Officer ___________ detected an odor of alcohol coming from the vehicle.  Since Officer __________ did not have a portable breath testing device in his vehicle; he called for Sgt. _________ to come to the scene to assist.  Sgt. __________ arrived a short time later and asked the defendant to submit to the Alco-sensor.  The defendant refused to submit to the Alco-sensor.  Officer __________ did not ask the defendant to perform any standardized field sobriety tests.  Officer __________ was not qualified at the time of the Defendant’s arrest to administer the tests.  Officer __________ did not ask the Defendant to perform any non-standardized field sobriety tests.  Officer __________ searched the Defendant’ vehicle and located what appeared to be a drinking glass that contained wine. The glass was between one quarter and one half full and was located in the cup holder between the driver seat and the passenger seat. Based upon the defendant’s driving; the odor of alcohol; the presence of what appeared to an alcoholic beverage inside the Defendant’s vehicle; and the defendant’s refusal to submit to an Alco-sensor test; Officer _________ placed the defendant under arrest for impaired driving.

8.              After placing the Defendant under arrest for impaired driving; Officer _________ transported the Defendant to the _____________ County Law Enforcement Center for the purpose of conducting a chemical analysis of the Defendant’s breath.   Since Officer _________ was not a certified chemical analyst, he asked fellow Officer _____________ to assist him at the law enforcement center.  At approximately 1:44 a.m.; Officer __________ asked the Defendant to provide a breath sample utilizing the intoxilyzer 5000 instrument.  The Defendant refused to provide a breath sample.  The Defendant also refused to submit to standardized field sobriety tests.

9.              After the defendant refused to submit a breath sample; Officer _________ suggested to Officer __________ that the Defendant should be taken to the hospital for a forced blood draw.  The _______ County Magistrate’s office is located on the same floor as the room that houses the State’s breath testing instruments.  Although the defendant and the officers were located at the law enforcement center at the time of the Defendant’s refusal; neither officer sought the assistance of a magistrate for the purpose of obtaining a search warrant to obtain a blood sample from the defendant for testing.              

10.              Based upon the Defendant’s refusal to submit to a breath test; Officer ________ suggested to Officer _______ that the Defendant be taken to the hospital for a blood test. The Defendant told Officer ________ that she did not want her blood taken. 

11.              The Defendant was subsequently taken to the emergency room at the ________ Regional Hospital.  At 1:59 a.m.; the defendant was advised of her rights concerning a chemical analysis of her blood.  The defendant did not request an attorney or a witness.  Officer ________ could not recall if Officer __________ actually asked the Defendant to submit to a blood test.  However; at approximately 2:05 a.m.; a nurse from the hospital used a needle to draw blood from the Defendant’s arm.

12.              Officer __________ was the chemical analyst in this case.  However; Officer ________ did not testify during the course of the hearing on the Defendant’s motion to suppress.

13.              N.C.G.S. 20-139.1(d)(1) provides as follows:  “If a person refuses to submit to any test or tests pursuant tot his section; any law enforcement officer with probable cause may, without a court order; compel the person to provide a blood or urine samples for analysis if the officer reasonable believes that the delay necessary to obtain a court order; under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine”.

13.              Drawing blood from an individual accused of a crime; constitutes an invasive search of the defendant’s person and is protected by the 4th Amendment to the United States Constitution; made applicable to the States by the 14th Amendment to the United States Constitution.  The Defendant was subjected to a non-consensual search of her person.

14.              There was no evidence offered to this Court that Officer _________ or Officer _______ reasonably believed that a delay in obtaining a court order from a neutral and detached judicial official under the particular circumstances of this case would result in the dissipation of the percentage of alcohol in the defendant’s blood.




1.              These parties are properly before the court.  The Court has both subject matter jurisdiction as well as personal jurisdiction to enter the Order contained herein.

2.              This matter was properly brought on for a pre-trial hearing pursuant to the provisions of N.C.G.S. 20-38.6.

3.              On January 12, 2008; the Defendant was subjected to a non-consensual search of her person by having a needle stuck in her arm for the purpose of obtaining a sample of her blood for testing in connection with her arrest for an implied consent offense.  The blood sample was taken at the direction of Officer F.J. Scism; a chemical analyst employed by the ________ Police Department.  The search was conducted without the benefit of a search warrant issued by a neutral and detached judicial official.  

4.              Based upon the lack of any evidence that a forced blood draw was necessary without first obtaining a search warrant from a neutral and detached judicial official; this Court determines that the Defendant’s blood sample was taken illegally; in violation of her 4th Amendment right to be free from an unreasonable search of her person.


1.              The defendant’s motion to suppress the results of the blood test taken at the _________ Regional Hospital on January 12, 2008 is hereby granted.

2.              Accordingly, all evidence seized as a result of the illegal search of the Defendant’s person is hereby suppressed as “fruit of the poisonous tree”.

IT IS SO ORDERED, this the 16th day of September, 2008.

SIGNED, this the ___ day of __________________, 20________


______________; District Court Judge Presiding