State v. German

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Mary Ann German, Appellant.
Appellate Case No. 2018-002090
Appeal from Beaufort County
Brooks P. Goldsmith, Circuit Court Judge
Opinion No. 28149
Heard September 21, 2021 – Filed April 5, 2023
AFFIRMED
Appellate Defender David Alexander, of Columbia, for
Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia; Solicitor Isaac McDuffie Stone, III, of
Bluffton, all for Respondent.
CHIEF JUSTICE BEATTY: Appellant was convicted of felony driving
under the influence ("DUI") resulting in death and sentenced to eleven years'
incarceration. Before trial, Appellant moved to suppress evidence of her blood
alcohol content ("BAC") obtained through a warrantless blood draw, which was
taken pursuant to section 56-5-2946 of the South Carolina Code 1 while she was
hospitalized after an automobile accident. Finding that section 56-5-2946 was
constitutional as applied and unchanged by the holdings of McNeely 2 and
Birchfield,3 the trial court denied the motion to suppress. The court concluded that
law enforcement had probable cause to suspect Appellant of felony DUI and
properly obtained the blood draw pursuant to section 56-5-2946.
Appellant appealed her conviction based on the denial of her motion, and the
court of appeals requested certification pursuant to Rule 204(b), SCACR. We agreed
1
Section 56-5-2946 provides in relevant part:
(A) Notwithstanding any other provision of law, a person must submit
to either one or a combination of chemical tests of his breath, blood, or
urine for the purpose of determining the presence of alcohol, drugs, or
a combination of alcohol and drugs if there is probable cause to believe
that the person violated or is under arrest for a violation of Section 56-
5-2945 [felony DUI].
(B) The tests must be administered at the discretion of a law
enforcement officer. The administration of one test does not preclude
the administration of other tests. The resistance, obstruction, or
opposition to testing pursuant to this section is evidence admissible at
the trial of the offense which precipitated the requirement for testing.
A person who is tested or gives samples for testing may have a qualified
person of his choice conduct additional tests at his expense and must be
notified of that right. A person's request or failure to request additional
blood or urine tests is not admissible against the person in the criminal
trial.
S.C. Code Ann. § 56-5-2946(A)–(B) (2018) (emphasis added).
2
Missouri v. McNeely, 569 U.S. 141 (2013) (holding the natural metabolization of
BAC does not create a per se exigency as an exception to the Fourth Amendment's
warrant requirement).
3
Birchfield v. North Dakota, 579 U.S. 438 (2016) (holding warrantless breath tests,
but not blood tests, are permitted as searches incident to arrest under the Fourth
Amendment).
to consider whether the warrantless blood draw based on section 56-5-2946 violated
Appellant's Fourth Amendment rights or her rights under the South Carolina
Constitution and, in effect, whether section 56-5-2946 is constitutional.
We conclude section 56-5-2946 is facially constitutional but unconstitutional
as applied in Appellant's case. However, we find the trial court did not err in denying
Appellant's motion to suppress because law enforcement acted in good faith based
on existing precedent at the time of the blood draw. We affirm Appellant's
conviction.
I. FACTS
On July 9, 2016, Appellant and her husband were diverted from their vacation
camping plans due to traffic and decided to pull off Highway 21 in Beaufort County.
The couple decided to rest for the evening and have a few drinks at a bar, known
locally as "Archie's." There, patrons offered the couple an all-you-can-drink bracelet
for ten dollars as part of an event being held that night. The bar served "free pouring"
liquor, and Appellant consumed a beer and four to six vodka drinks.
Around 12:30 a.m., Appellant drove their truck off the property. Upon leaving
the parking lot, Appellant entered the road, ran the stop sign before Highway 21, and
drove into the wrong side of the divided highway. Her truck collided with a sedan
head-on, and, tragically, the other driver did not survive the collision.
Paramedics, firefighters, and police officers all responded to the collision.
First responders extracted Appellant and her husband from the vehicle, and a
responding officer noted an alcoholic odor emanating from each of them. The
responding paramedics placed Appellant into an ambulance and noted an ethanol
smell from Appellant. In response to paramedics' questions, Appellant heavily
slurred her speech. One paramedic testified Appellant was intoxicated.
In the early morning hours of July 10, 2016, Appellant arrived at Beaufort
Memorial Hospital by EMS on a backboard, and medical professionals expressed
concern she had a serious head injury. However, Appellant's only ultimate injury
was a laceration on the bottom of her foot. Later, Appellant became belligerent and
agitated. The emergency room physician testified that, based on her medical
opinion, Appellant was intoxicated.
After arriving on the scene of the collision, a state trooper went to the hospital
to obtain a blood draw from Appellant, who was the driver of the truck involved in
the accident. Based on hearing information from other law enforcement officers,
being at the scene himself, and observing Appellant at the hospital, the trooper
suspected Appellant of felony DUI. He placed Appellant under arrest at the hospital
around 2:00 a.m.
The trooper read Appellant her rights pursuant to the implied consent statute.
However, instead of reading the felony DUI advisement of rights form, he read
Appellant the advisement of rights form for misdemeanor DUI because he
inadvertently "grabbed the wrong form." Regardless, Appellant resisted cooperation
and refused to sign the paperwork detailing her rights. The emergency room
physician declined to release Appellant for a breath test within the two-hour window
to take Appellant to a police station for a breath test as required by law. 4 Because
the trooper could not administer a breath test in the hospital, he ordered a blood draw
while Appellant was in a hospital bed.5 Appellant's BAC registered 0.275%.
The trooper was the only officer at the hospital, and neither he nor any other
responding officer sought a warrant to collect the sample of Appellant's blood. He
conceded on cross examination that his office had provided him with a number to
reach a magistrate late at night and he had used the number before. He also admitted
it was "[p]ossible" to obtain a warrant; however, he explained that he did not seek a
warrant because he "was trained . . . when [he] came into law enforcement" that "if
4
See S.C. Code Ann. § 56-5-2950(A) (2018) ("At the direction of the arresting
officer, the person first must be offered a breath test to determine the person's alcohol
concentration. If the person is physically unable to provide an acceptable breath
sample because the person has an injured mouth, is unconscious or dead, or for any
other reason considered acceptable by the licensed medical personnel, the arresting
officer may request a blood sample to be taken . . . . A breath sample taken for
testing must be collected within two hours of the arrest. Any additional test to collect
other samples must be collected within three hours of the arrest." (emphasis added)).
5
Pursuant to section 56-5-2946, if there is probable cause to believe an individual
violated the felony DUI statute or is under arrest for felony DUI, he or she "must
submit to either one or a combination of chemical tests of his breath, blood, or urine
for the purpose of determining the presence of alcohol, drugs, or a combination of
alcohol and drugs." S.C. Code Ann. § 56-5-2946(A) (2018) (emphasis added); see
also State v. Long, 363 S.C. 360, 363, 610 S.E.2d 809, 811 (2005) (holding in a
felony DUI case, an officer need not offer a breath test as the first testing option, nor
must the officer obtain a medical opinion that such a test is not feasible before
ordering a blood test or urine sample).
there's a felony DUI involving death, [he] [did] not need permission." He told
Appellant, "like it or not, we are getting a blood draw."
Three months before trial, the court heard arguments on Appellant's motion
to suppress evidence of the blood draw and its results. Appellant focused her
argument on an as-applied challenge rather than a facial challenge to the
constitutionality of the statute. Specifically, she believed there is a way to read the
statute such that a person, who is suspected upon probable cause of committing
felony DUI, must consent. However, Appellant maintained that, under the facts in
this case, a search warrant was necessary and only a neutral and detached magistrate
could determine probable cause for a search warrant. Conversely, the State argued
that, under section 56-5-2946, the probable cause to arrest Appellant for felony DUI
is sufficient to eliminate the need to obtain a warrant. The State waived its argument
that the officer relied on the exceptions for a search incident to an arrest or exigent
circumstances and, instead, relied solely on the felony DUI statute.
The court, finding the statute constitutional as applied, ultimately adopted the
State's arguments and denied the motion to suppress. Appellant renewed the motion
throughout trial, and this appeal followed.
II. STANDARD OF REVIEW
"[A]ppellate review of a motion to suppress based on the Fourth Amendment
involves a two-step analysis. This dual inquiry means we review the trial court's
factual findings for any evidentiary support, but the ultimate legal conclusion . . . is
a question of law subject to de novo review." State v. Frasier, 437 S.C. 625, 633–
34, 879 S.E.2d 762, 766 (2022).
"This Court has a limited scope of review in cases involving a constitutional
challenge to a statute because all statutes are presumed constitutional and, if
possible, will be construed to render them valid." Curtis v. State, 345 S.C. 557, 569,
549 S.E.2d 591, 597 (2001). "Further, a legislative act will not be declared
unconstitutional unless its repugnance to the Constitution is clear and beyond a
reasonable doubt." Id. at 570, 549 S.E.2d at 597.
III. DISCUSSION
Appellant contends the trial court erred in denying her motion to suppress the
BAC results because the warrantless blood draw violated the Fourth Amendment's
prohibition against unreasonable searches and seizures. Appellant further argues the
warrantless blood draw violated her right against unreasonable invasions of privacy
in South Carolina's Constitution. Additionally, Appellant avers the State waived any
reliance on the exceptions for exigent circumstances and a search incident to an
arrest. Even if preserved, Appellant maintains the State failed to prove an applicable
exception that would justify the warrantless blood draw. Finally, Appellant contends
any error in admitting the BAC results cannot be harmless.
In response, the State claims the trial court correctly denied Appellant's
motion to suppress the BAC results. The State argues the warrantless search was
reasonable because exigent circumstances existed and the search was a permissible
search incident to a lawful arrest. The State further maintains the good-faith
exception applies and, if the trial court erred, the error was harmless.
Initially, we note that our appellate courts have said that an operator of a motor
vehicle in South Carolina is not required to submit to alcohol or drug testing.
Sanders v. S.C. Dep't of Motor Vehicles, 431 S.C. 374, 383, 848 S.E.2d 768, 773
(2020) (citing S.C. Dep't of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d
544, 548 (Ct. App. 2005)). Both Sanders and Nelson involved suspended driver's
licenses due to refusal to submit to an alcohol breath test. However, these cases are
distinguishable from the case now before this Court because they involved civil
penalties, not criminal convictions; they did not address the constitutionality of the
statutes; and the decisions appear to be founded on statutory interpretation.
Nonetheless, it is arguable that our appellate courts have spoken on the issue of
mandatory alcohol and blood testing, even if some may view it as dicta. In any case,
clarity of the law is needed.
A. Constitutionality under the Fourth Amendment to the U.S. Constitution
This Court has recognized that a blood draw is a search and seizure under the
Fourth Amendment in a triad of cases dealing with our implied consent statutes. See
State v. Key, 431 S.C. 336, 344, 848 S.E.2d 315, 318 (2020) (remanding the case for
a determination of exigent circumstances which the State has the burden to
establish); State v. McCall, 429 S.C. 404, 410, 839 S.E.2d 91, 93 (2020) (holding
exigent circumstances justified the warrantless blood draw); Hamrick v. State, 426
S.C. 638, 654, 828 S.E.2d 596, 604 (2019) (declining to address exigent
circumstances where the good-faith exception justified the warrantless blood draw).
Further, the United States Supreme Court has held a blood draw is a search under
the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767 (1966).
Under the Fourth Amendment, people are free from unreasonable searches
and seizures by their government. McCall, 429 S.C. at 409, 839 S.E.2d at 93. A
warrantless search is unreasonable per se, unless it falls within a recognized
exception to the warrant requirement. Riley v. California, 573 U.S. 373, 382 (2014);
see also State v. Weaver, 374 S.C. 313, 319, 649 S.E.2d 479, 482 (2007) (noting a
warrantless search is per se unreasonable). The recognized exceptions to the warrant
requirement are search incident to a lawful arrest, hot pursuit, stop and frisk, the
automobile exception, the plain view doctrine, consent, and abandonment. State v.
Counts, 413 S.C. 153, 163, 776 S.E.2d 59, 65 (2015). Three exceptions to the
warrant requirement are considered here: search incident to a lawful arrest, consent,
and exigent circumstances.
During the pretrial suppression hearing, the State argued that the blood draw
was taken solely pursuant to section 56-5-2946 and expressly waived any reliance
on the search incident to a lawful arrest and exigent circumstances exceptions.
Accordingly, we decline to address these exceptions to the warrant requirement. See
State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003) ("In order for an
issue to be preserved for appellate review, it must have been raised to and ruled upon
by the trial judge."). In our analysis, we depend solely on the consent exception to
the warrant requirement; however, we briefly discuss the other exceptions as they
have developed.
South Carolina's implied consent statute provides in relevant part:
[A] person must submit to either one or a combination of chemical tests
of his breath, blood, or urine for the purpose of determining the
presence of alcohol, drugs, or a combination of alcohol and drugs if
there is probable cause to believe that the person violated or is under
arrest for a violation of Section 56-5-2945 [felony DUI].
S.C. Code Ann. § 56-5-2946(A) (2018) (emphasis added). Although our
jurisprudence already has considered our implied consent statutes, we have not yet
directly addressed their constitutionality. In McCall, we reserved that question for
a future case: "While we leave this question for another day, we do note numerous
courts have cast doubt on the constitutionality of similar implied consent statutes."
429 S.C. at 413 n.3, 839 S.E.2d at 95 n.3. We address that question today.
Over the years, we have seen a jurisprudential movement, in both this Court
and the United States Supreme Court, calling into question the constitutionality of
implied consent statutes. In Schmerber, the United States Supreme Court recognized
that, despite the usual need for a warrant, an officer might have reasonably believed
there was an emergency and a blood draw was an appropriate search incident to an
arrest. 384 U.S. at 770–71 (holding the case specific facts allowed a warrantless
blood draw because the officer might have reasonably believed there was an
emergency). However, years later, the United States Supreme Court held the
dissipation of alcohol in the blood alone does not categorically create an exigent
circumstance. Missouri v. McNeely, 569 U.S. 141, 156 (2013) (holding the
warrantless blood draw of a suspected drunk driver as an exigent circumstance
requires a "case-by-case analysis under the totality of the circumstances"). In
McNeely, the United States Supreme Court justified the previous holding in
Schmerber with its specific facts. Id. at 152, 156.
More recently, in Birchfield v. North Dakota, the United States Supreme
Court held a warrantless blood draw cannot be taken as a search incident to an
arrest. 6 579 U.S. 438, 476 (2016). The Court considered the more intrusive nature
of a blood draw against the less intrusive breath test because a blood draw pierces
the skin, takes a sample from the body, and preserves it indefinitely. Id. at 463–64,
474. Breath tests, the Court said, are permissible as searches incident to arrests
because they have little physical intrusion, the test only reveals the amount of alcohol
in the person's breath, and participation in the test is unlikely to enhance the arrestee's
embarrassment. Id. at 461–63.
In 2019, the United States Supreme Court again revisited the doctrine of
exigent circumstances when considering a challenge to an implied consent statute.
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019). There, the Court refined its holdings
in Schmerber and McNeely to permit an exigent circumstances exception when, "(1)
BAC evidence is dissipating and (2) some other factor creates pressing health, safety,
or law enforcement needs that would take priority over a warrant application." Id.
at 2537. The Court noted, "[B]oth conditions are met when a drunk-driving suspect
is unconscious." Id. Yet, the Court made clear:
We do not rule out the possibility that in an unusual case a defendant
would be able to show that his blood would not have been drawn if
police had not been seeking BAC information, and that police could not
6
At oral argument, the State asked this Court to limit Birchfield to its facts—a
misdemeanor DUI—as part of its argument that the blood draw was a valid search
incident to arrest. In Birchfield, the United States Supreme Court held a breath test,
but not a blood test, may be administered as a search incident to a lawful arrest. 579
U.S. at 476. We, however, decline to apply Birchfield to only misdemeanor DUI
cases because the United States Supreme Court in no way limited its holding in
Birchfield to only misdemeanor cases. In fact, the Court weighed the government's
interest in preventing traffic fatalities with privacy interests in light of the "carnage"
and "slaughter" caused by drunk drivers. Id. at 465. We believe the Court, in its
analysis, considered the government's heightened interest in preventing felony DUIs.
have reasonably judged that a warrant application would interfere with
other pressing needs or duties.
Id. at 2539. However, in Key, we declined to place the burden of proving the absence
of an exigency on the defendant:
We cannot sponsor the notion of requiring a defendant to prove that this
right—a right she already possesses—exists in any given case. We
must therefore part company with the Mitchell Court, as we will not
impose upon a defendant the burden of establishing the absence of
exigent circumstances. We have consistently held the prosecution has
the sole burden of proving the existence of an exception to the warrant
requirement.
431 S.C. at 348, 848 S.E.2d at 321 (internal citations omitted).
Similarly, this Court has seen a gradual movement in our case law governing
South Carolina's implied consent statutes. First, in interpreting section 56-5-2946,
we held an officer need not offer first a breath test before ordering a blood test for a
felony DUI suspect. State v. Long, 363 S.C. 360, 363, 610 S.E.2d 809, 811 (2005).
We then declined to address the constitutionality of our implied consent statute in
Hamrick, where the good-faith exception to the exclusionary rule applied. 426 S.C.
at 655, 828 S.E.2d at 604–05. In McCall, we reserved the question of section 56-5-
2946's constitutionality and held exigent circumstances otherwise justified the
warrantless blood draw. 429 S.C. at 413, 839 S.E.2d at 95. Most recently, in Key,
we ruled, even when the suspect is unconscious, the prosecution has the sole burden
of proving exigent circumstances. 431 S.C. at 348, 848 S.E.2d at 321. Parting ways
with the Mitchell Court, we remanded the case for that determination. Id. at 349,
848 S.E.2d at 321.
Notwithstanding the development in the law, we continue to recognize the
wisdom of implied consent statutes and note their valid, remedial purposes. See
Sanders v. S.C. Dep't of Motor Vehicles, 431 S.C. 374, 848 S.E.2d 768 (2020)
(affirming the suspension of a driver's license where the suspected driver refused to
take a BAC test).7 Drivers in South Carolina do not hold a right to operate motor
vehicles but, instead, have a privilege subject to reasonable regulation. Id. at 382–
7
We also recognize the United States Supreme Court in Birchfield noted the general
validity of implied consent statutes. 579 U.S. at 476–77. The Birchfield Court called
only a warrantless blood draw as a search incident to an arrest into question.
83, 848 S.E.2d at 773. Valid purposes behind regulating conduct with implied
consent statutes include obtaining best evidence of a driver's BAC and promoting
traffic safety by removing dangerous drivers from the roads. Id. at 383, 848 S.E.2d
at 773.
Moreover, the distinction between a categorical exception and a general
exception to the Fourth Amendment informs our judgment. The United States
Supreme Court has recognized a limited class of categorical exceptions to the
warrant requirement. McNeely, 569 U.S. at 150 n.3. The two types are distinguished
by whether or not the exception requires a factually specific inquiry on a case-by-
case basis. Id. Categorical exceptions, including the automobile exception 8 and the
search incident to a lawful arrest exception, 9 do not require "an assessment of
whether the policy justifications underlying the exception . . . are implicated in a
particular case." Id. On the other hand, general exceptions require case-by-case
inquiries and analyses. Id.Consent operates as a general exception because it demands a fact-specific
determination of whether the suspect invoked her consent. See Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973) ("Similar considerations lead us to agree []
that the question whether a consent to a search was in fact 'voluntary' or was the
product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.").
In analyzing the constitutionality of section 56-5-2946, we must also consider
the difference between as-applied and facial constitutional challenges. "The line
between facial and as-applied relief is [a] fluid one, and many constitutional
challenges may occupy an intermediate position on the spectrum between purely as-
applied relief and complete facial invalidation." Doe v. State, 421 S.C. 490, 502,
808 S.E.2d 807, 813 (2017) (quoting 16 C.J.S. Constitutional Law § 153, at 147
8
See, e.g., California v. Acevedo, 500 U.S. 565, 580 (1991) ("We therefore interpret
Carroll [Carroll v. United States, 267 U.S. 132 (1925)] as providing one rule to
govern all automobile searches. The police may search an automobile and the
containers within it where they have probable cause to believe contraband or
evidence is contained.").
9
See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973) ("A custodial arrest
of a suspect based on probable cause is a reasonable intrusion under the Fourth
Amendment; that intrusion being lawful, a search incident to the arrest requires no
additional justification.").
(2015)) (holding petitioner could only make an as-applied challenge because
petitioner did not attack the acts as a whole and this Court has a preference to remedy
constitutional infirmities in the least restrictive way possible). "The distinction is
both instructive and necessary, for it goes to the breadth of the remedy employed by
the Court, not what must be pleaded in a complaint." Citizens United v. Fed.
Election Comm'n, 558 U.S. 310, 331 (2010).
"One asserting a facial challenge claims that the law is 'invalid in toto—and
therefore incapable of any valid application.'" Doe, 421 S.C. at 502, 808 S.E.2d at
813 (quoting Steffel v. Thompson, 415 U.S. 452, 474 (1974)). "A facial challenge is
an attack on a statute itself as opposed to a particular application." City of Los
Angeles, Calif. v. Patel, 576 U.S. 409, 415 (2015). Under a facial challenge, "a
plaintiff must establish that a 'law is unconstitutional in all of its applications.'" Id.
at 418 (quoting Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 449 (2008)). Conversely, "[i]n an 'as-applied' challenge, the party
challenging the constitutionality of the statute claims that the 'application of the
statute in the particular context in which he has acted, or in which he proposes to act,
would be unconstitutional.'" Doe, 421 S.C. at 503, 808 S.E.2d at 813 (citation
omitted).
Returning to the question presented, we recognize an implied consent statute
cannot allow what the Fourth Amendment prohibits. Therefore, to satisfy the
requirements of the United States Constitution, a warrantless blood draw pursuant
to section 56-5-2946 generally must rely on the consent exception10 to the warrant
requirement. 11
The Fourth Amendment requires a finding that consent be given voluntarily
under the totality of the circumstances. Palacio v. State, 333 S.C. 506, 514, 511
S.E.2d 62, 66 (1999) (citing Katz v. United States, 389 U.S. 347 (1967); United
States v. Durades, 929 F.2d 1160 (7th Cir. 1991); United States v. Zapata, 997 F.2d
751 (10th Cir. 1993)); see also Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
(holding consent as an exception to the warrant requirement must be voluntarily
10
But see Mitchell, 139 S. Ct. at 2531 (recognizing exigent circumstances almost
always allows a warrantless blood test).
11
Despite the State's insistence that section 56-5-2946 is constitutional as a search
incident to an arrest, we find, fundamentally, it must rely on consent. As Birchfield
made clear, a blood draw cannot be constitutional as a search incident to an arrest,
and we decline to limit Birchfield to its facts. See supra n.6.
given). We further recognize that a valid finding of consent requires a suspect to be
able to refuse or revoke consent. See State v. Bruce, 412 S.C. 504, 511, 772 S.E.2d
753, 756 (2015) (holding a suspect did not object to an officer picking up keys to
access a car during a search to which the suspect consented); State v. Prado, 960
N.W.2d 869, 879–80 (Wis. 2021) (noting a person has a constitutional right to refuse
a warrantless search). Consequently, implied consent cannot justify a categorical
exception to the general warrant requirement.
Here, the trial court unconstitutionally applied section 56-5-2946 to the
warrantless search of Appellant's blood. Because the statute is not unconstitutional
in all its applications, Appellant brings an as-applied challenge to its
constitutionality. As applied, the trial court should have conducted an inquiry into
Appellant's consent to determine whether her Fourth Amendment rights were
violated. Several cases from other jurisdictions, among others,12 have followed and
applied this reasoning, often recognizing statutes as invalid when they do not fall
within an exception to the warrant requirement.
In Prado, the Supreme Court of Wisconsin found Wisconsin's incapacitated
driver provision unconstitutional beyond a reasonable doubt because it did not fit
within any recognized exceptions to the warrant requirement. 960 N.W.2d at 878.
There, the court distinguished the exigent circumstances exception and the consent
exception to the Fourth Amendment's warrant requirement. Id. at 879. Turning to
consent, the court made the following finding:
In the context of warrantless blood draws, consent "deemed" by statute
is not the same as actual consent, and in the case of an incapacitated
driver the former is incompatible with the Fourth Amendment.
Generally, in determining whether constitutionally sufficient consent is
present, a court will review whether consent was given in fact by words,
gestures, or conduct. This inquiry is fundamentally at odds with the
12
See, e.g., Commonwealth v. Myers, 164 A.3d 1162, 1173 (Pa. 2017) ("In recent
years, a multitude of courts in our sister states have interpreted their respective—and
similar—implied consent provisions and have concluded that the legislative
proclamation that motorists are deemed to have consented to chemical tests is
insufficient to establish the voluntariness of consent that is necessary to serve as an
exception to the warrant requirement."); State v. Wulff, 337 P.3d 575, 581 (Idaho
2014) ("[I]rrevocable implied consent operates as a per se rule that cannot fit under
the consent exception because it does not always analyze the voluntariness of that
consent.").
concept of "deemed" consent in the case of an incapacitated driver
because an unconscious person can exhibit no words, gestures, or
conduct to manifest consent.
Id. (internal citations omitted). The court further recognized that "[t]he concept of a
statutory per se exception to the warrant requirement violates both McNeely and
Birchfield," as we agree today. Id. at 880; supra nn.6 & 7. Although the Wisconsin
court considered the constitutionality of the incapacitated driver provision,
distinguishable from our statute, here, Appellant had the ability to exhibit and
effectuate words, gestures, and conduct to manifest her opposition to the search.
Seeing as the court was concerned about unconscious drivers not having the ability
to evince consent, there exists no greater manifestation than when the suspect is
conscious.
Further, in Williams v. State, the Supreme Court of Georgia reiterated, "[T]his
[c]ourt plainly distinguished compliance with the implied consent statute from the
constitutional question of whether a suspect gave actual consent for the state-
administered testing." 771 S.E.2d 373, 376 (Ga. 2015). There, because the trial
court did not determine whether the defendant gave his consent under the exception,
the Supreme Court of Georgia vacated the judgment and remanded the case to
determine the voluntariness of the consent under the totality of the circumstances.
Id. at 377.
Additionally, in State v. Yong Shik Won, the Supreme Court of Hawaii found,
"[I]n order to legitimize submission to a warrantless BAC test under the consent
exception, consent may not be predetermined by statute, but rather it must be
concluded that, under the totality of the circumstances, consent was in fact freely
and voluntarily given." 372 P.3d 1065, 1080 (Haw. 2015). In considering Hawaii's
implied consent law, the court further found, "[A] person may refuse consent to
submit to a BAC test under the consent exception, and the State must honor that
refusal." Id.Again, analyzing consent, the Supreme Court of Nevada, in Byars v. State,
found the exigent circumstances exception did not justify the warrantless blood
draw. 336 P.3d 939, 944–45 (Nev. 2014). The state, there, argued consent was
implied from the driver's decision to drive on Nevada's roads. Id. However, the
court held consent cannot be irrevocable by electing to drive on Nevada's roads. Id.Further, the implied consent statute allowing for an officer to use force to obtain a
blood sample could not be read constitutionally because it does not allow a driver to
withdraw consent and, thus, is not given voluntarily. Id. at 946.
Turning to the instant case, we conclude Appellant did not consent to the
warrantless blood draw while hospitalized on the night of the accident. First, the
state trooper acknowledged that he could have procured a warrant, yet he decided to
order the blood draw without one. As he testified, he relied solely on what he
thought section 56-5-2946 authorized. Second, Appellant refused to sign the implied
consent form the state trooper presented to her, even though it was the wrong form.
Appellant's signature was marked, "refused to sign." Third, Appellant, by her
actions, did not impliedly consent. She became belligerent and was obstinate with
hospital personnel. Fourth, when ordering the blood draw, the state trooper told
Appellant, "like it or not, we are getting a blood draw." Under the totality of the
circumstances, by her actions, Appellant refused to consent to the warrantless search.
Because the state trooper proceeded anyway and section 56-5-2946 does not exist as
a separate exception to the general warrant requirement, the blood draw was an
unreasonable search and seizure under the Fourth Amendment.
Although we find section 56-5-2946 unconstitutional as applied to Appellant,
we conclude this section is facially constitutional. "Finding a statute or regulation
unconstitutional as applied to a specific case does not affect the facial validity of that
provision." Travelscape v. S.C. Dep't of Revenue, 391 S.C. 89, 109, 705 S.E.2d 28,
39 (2011). Faithful to our standard of review, we recognize that an officer legally
can obtain a warrant or the suspect's consent to request a blood draw, pursuant to the
Fourth Amendment's mandates. Exigent circumstances also justify a warrantless
blood draw in the proper case. Mitchell, 139 S. Ct. at 2531. Additionally, breath
tests do not intrude greatly into the body, they do not reveal more than one piece of
information, and they do not cause more embarrassment than what is inherent in an
arrest. Birchfield, 579 U.S. at 462–63. Accordingly, we recognize the continued
validity of section 56-5-2946, as it authorizes implied consent for breath tests.
B. Constitutionality under the South Carolina Constitution
Appellant maintains the State violated her right against unreasonable
invasions of privacy. We agree.
The South Carolina Constitution provides as follows:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures and unreasonable
invasions of privacy shall not be violated, and no warrants shall issue
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, the person or thing to
be seized, and the information to be obtained.
S.C. Const. art. I, § 10 (emphasis added). We have interpreted South Carolina's
express right against unreasonable invasions of privacy provision to provide
greater—or, a more "heightened"—protection than that provided by the United
States Constitution. State v. Weaver, 374 S.C. 313, 321, 649 S.E.2d 479, 483 (2007)
(holding ultimately the search in question met the automobile exception to the
warrant requirement and did not violate the more expansive right to privacy); see
also State v. Brown, 423 S.C. 519, 533, 815 S.E.2d 761, 769 (2018) (Beatty, C.J.,
dissenting) (noting the heightened protection afforded by the state constitution and
finding it protected petitioner from the warrantless search of his cell phone). "State
courts may afford more expansive rights under state constitutional provisions than
the rights which are conferred by the Federal Constitution." State v. Easler, 327 S.C.
121, 131 n.13, 489 S.E.2d 617, 625 n.13 (1997). "This relationship is often described
as a recognition that the federal Constitution sets the floor for individual rights while
the state constitution establishes the ceiling." State v. Forrester, 343 S.C. 637, 643,
541 S.E.2d 837, 840 (2001). "South Carolina and the other states with a right to
privacy provision imbedded in the search and seizure provision of their constitutions
have held such a provision creates a distinct privacy right that applies both within
and outside the search and seizure context." Id. at 644, 541 S.E.2d at 841.
In the context of medical treatment, we held the State violates the right of
privacy when a prison inmate would be forced to take medication solely for the
purpose of facilitating execution. Singleton v. State, 313 S.C. 75, 89, 437 S.E.2d 53,
61 (1993). Further, we declared, "An inmate in South Carolina has a very limited
privacy interest when weighed against the State's penological interest; however, the
inmate must be free from unwarranted medical intrusions." Id.In Forrester, this Court considered whether the right against unreasonable
invasions of privacy requires informed consent to government searches. Although
we held in Forrester that South Carolina's right against unreasonable invasions of
privacy did not require informed consent on the part of the suspect before
government searches, 13 we noted the drafters of the constitution were concerned with
the emergence of new technology increasing the government's ability to conduct a
search. Id. at 647–48, 541 S.E.2d at 842–43. Specifically, we recognized the special
committee to study the constitution, in drafting the provision, both intended for it to
13
Ultimately, in Forrester, we reversed the court of appeals and found that an officer
exceeded the scope of Forrester's consent when he searched the contents of her
pocketbook beyond a visual inspection in violation of her right against unreasonable
invasions of privacy. Id. at 648, 541 S.E.2d at 843.
cover electronic surveillance and recognized it would have a far greater impact. Id.
at 647, 541 S.E.2d at 842. Later, we explained in Weaver:
The focus in the state constitution is on whether the invasion of privacy
is reasonable, regardless of the person's expectation of privacy to be
searched. Once the officers have probable cause to search a vehicle,
the state constitution's requirement that the invasion of one's privacy be
reasonable will be met.
374 S.C. at 322, 649 S.E.2d at 483.
In State v. Counts, this Court again had an opportunity to expand the analysis
in Forrester and Weaver. In Counts, the petitioner argued the "knock and talk"
technique done without probable cause or reasonable suspicion violated article I,
section 10. 413 S.C. 153, 162, 776 S.E.2d 59, 65 (2015). We looked to other
jurisdictions with similar rights against unreasonable invasions of privacy for
guidance. Id. at 170–71, 776 S.E.2d at 69. However, we did not find a persuasive
basis to require an officer to tell a citizen of his or her right to refuse consent to a
search. Id. at 171, 776 S.E.2d at 69. Continuing the development of the law, we
noted there must be some analysis of the privacy interests involved when a
warrantless search is made: "Because the privacy interests in one's home are the
most sacrosanct, we believe there must be some threshold evidentiary basis for law
enforcement to approach a private residence." Id. at 172, 776 S.E.2d at 69. In
applying the new rule, we upheld the trial court's denial of petitioner's motion to
suppress because the findings of fact established law enforcement's reasonable
suspicion to conduct the "knock and talk." Id. at 173, 776 S.E.2d at 70.
Turning to the instant case, we find the provision in our state constitution is
implicated when law enforcement obtains a warrantless blood draw. As the United
States Supreme Court recognized in Schmerber v. California, there is a
constitutional right to privacy in one's blood. 384 U.S. 757, 767 (1966). Because
blood draws intrude upon an individual's privacy to a much higher degree, the Court
distinguished a blood draw from a breath test in Fourth Amendment jurisprudence
precisely. Birchfield, 579 U.S. at 463–64. Blood tests require piercing the skin and
the extraction of a part of the person's body, and a blood test provides law
enforcement with a preservable sample that contains a person's DNA and other
medical information besides the BAC reading. Id. at 464. The drafters of our
constitutional provision were concerned with the emergence of new technology
enabling more invasive searches, and a blood test's process certainly is one of the
most invasive government searches a suspect may encounter.
Although the state trooper had, at a minimum, a reasonable evidentiary basis
to believe Appellant committed the felony DUI before obtaining the blood draw,
Appellant refused consent to the search. In Counts and Forrester, we held law
enforcement was not required to inform the suspect of the right to refuse consent
prior to a search; however, had Counts or Forrester nevertheless refused consent,
law enforcement would have needed to obtain a warrant to proceed with the search.
Because Appellant clearly refused her consent by refusing to sign the implied
consent form and she acted inconsistently with consent, the state trooper needed to
obtain a warrant to legally proceed with the blood draw under the South Carolina
Constitution. Because he ordered the blood draw despite Appellant's refusal, he
violated Appellant's right to be free from an unreasonable invasion of privacy.
Nevertheless, we still must closely scrutinize "unwarranted medical
intrusions" to effectuate the protection of South Carolina's right against unreasonable
invasions of privacy. Singleton, 313 S.C. at 89, 437 S.E.2d at 61. At bottom, implied
consent, as referred to in the impaired driver statutory scheme, is non-existent
outside of matters involving the civil suspension or revocation of driver's licenses.
There is no constitutionally approved, statutory per se implied consent to a blood
draw. Law enforcement's demand for a warrantless blood test must be founded on
an approved exception to the warrant requirement of the Fourth Amendment. A
mandatory and forced blood draw is patently distinct from other modes of DUI
investigation and, consequently, violates the South Carolina Constitution when
administered without a warrant.
C. Good faith
Even though the warrantless blood draw violated Appellant's rights under the
Fourth Amendment and our state constitution, the State asserts the exclusionary rule
should not apply because law enforcement acted in good faith. We agree.
The exclusionary rule operates as "a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent effect, rather
than a personal constitutional right of the party aggrieved." United States v. Leon,
468 U.S. 897 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
"[T]he sole purpose of the exclusionary rule is to deter misconduct by law
enforcement." Davis v. United States, 564 U.S. 229, 246 (2011). The rule does not
apply "when the police act with an objectively 'reasonable good-faith belief' that
their conduct is lawful." Id. at 238. In Davis, the United States Supreme Court
concluded the officers who conducted the search did not violate Davis's Fourth
Amendment rights "deliberately, recklessly, or with gross negligence." Id. at 240.
Where there is no misconduct and no deterrent purpose to be served, suppression of
the evidence is an unduly harsh sanction." State v. Adams, 409 S.C. 641, 653, 763
S.E.2d 341, 348 (2014).
In Hamrick, we held the good-faith exception to the exclusionary rule applied
and BAC evidence from the blood test was admissible. 426 S.C. at 653, 828 S.E.2d
at 604. The warrantless blood draw occurred on November 14, 2011, two years
before the Supreme Court's ruling in McNeely. Id. at 643, 828 S.E.2d at 598.
Because the law seemed to support the existence of exigent circumstances before the
McNeely ruling, we ruled the officers acted lawfully based on a reasonably good-
faith belief. Id. at 654, 828 S.E.2d at 604.
Here, Appellant's blood was drawn in the early morning hours of July 10, 2016
pursuant to section 56-5-2946, which had not been directly called into question in
this state until McCall, over three years later. 14 At the time, McNeely only declined
to create a categorical exigency in every DUI case. Birchfield, though it most
seriously calls into question the validity of implied consent, was only released three
weeks before the blood draw in this case and dealt only with a blood draw as a search
incident to arrest. When Appellant's blood was drawn, the state trooper reasonably
relied on section 56-5-2946 and did not violate Appellant's rights deliberately,
recklessly, or with gross negligence. At trial, the state trooper testified he was
trained to not seek a warrant before a blood draw in the situation of a felony DUI.
He relied on this training when making the decision to draw Appellant's blood that
night.
Therefore, we hold the good-faith exception applies because of the state
trooper's reasonable reliance on section 56-5-2946 and its uncertain validity at the
time. 15 Although the state trooper violated Appellant's rights under both the Fourth
Amendment and South Carolina's Constitution, exclusion is not warranted. We are
14
McCall was heard on May 30, 2019 and filed on February 5, 2020.
15
Because we find the good-faith exception to the exclusionary rule applies, we do
not need to address the State's harmless error argument. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(declining to address petitioner's remaining issues when the first issue was
dispositive).
confident law enforcement will take care to use section 56-5-2946 in accordance
with what the South Carolina Constitution and the Fourth Amendment require.16
IV. CONCLUSION
The state trooper violated Appellant's rights under the Fourth Amendment and
South Carolina's Constitution when he obtained the blood draw under section 56-5-
2946 without a warrant. However, the state trooper acted in good faith based on the
law existing at the time.
Despite its unconstitutional application here, section 56-5-2946 remains
facially constitutional. We recognize a suspect may consent to chemical testing, and
even revoke consent, as section 56-5-2946 contemplates. Additionally, we
acknowledge the lower privacy interests at stake in breath analyses under the statute.
Our holding today only invalidates the law enforcement practice of obtaining blood
samples for BAC testing when a warrant has not been obtained, no other exceptions
to the warrant requirement justify the search, and the suspect neither consents nor
revokes her consent.
AFFIRMED.
KITTREDGE, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur.
FEW, J., concurring in a separate opinion.
16
"Responsible law enforcement officers will take care to learn 'what is required of
them' under Fourth Amendment precedent and will conform their conduct to these
rules." Davis, 564 U.S. at 241 (quoting Hudson v. Michigan, 547 U.S. 586, 599
(2006)).
JUSTICE FEW: I concur in result. The Court is deciding this case by addressing
the wrong issue. The question before us is not whether the implied consent statute
is unconstitutional, but rather whether the State demonstrated the consent exception
applies to excuse the Fourth Amendment's warrant requirement. German's implied
consent is one circumstance to be considered in answering that question. I believe
the consent exception does apply, and thus, I agree the trial court did not err in
denying German's motion to suppress. I firmly disagree that our implied consent
statute is unconstitutional, even as applied to German.
As I wrote for a unanimous Court in Hamrick v. State, 426 S.C. 638, 828 S.E.2d 596(2019), "pursuant to South Carolina's implied consent statute," a defendant in a
felony driving under the influence case "is deemed by law to have consented to have
his blood drawn by virtue of driving a motor vehicle in South Carolina." 426 S.C.
at 654, 828 S.E.2d at 604. Under our implied consent law—subsections 56-5-
2950(A) and 56-5-2946(A) of the South Carolina Code (2018)—German impliedly
consented to the warrantless blood draw conducted in this case. German's motion to
suppress the results of the blood draw, however, was based on the Fourth
Amendment. Under the Fourth Amendment, the fact the implied consent law
required her to consent before she was allowed to drive does not alone answer the
question of whether the consent exception excused the otherwise applicable
requirement the officer obtain a search warrant. Rather, German's implied consent
is one circumstance a court must consider in determining whether the blood draw
was a reasonable search and seizure under the Fourth Amendment. See State v.
Alston, 422 S.C. 270, 288, 811 S.E.2d 747, 756 (2018) ("The existence of voluntary
consent is determined from the totality of the circumstances." (quoting State v.
Provet, 405 S.C. 101, 113, 747 S.E.2d 453, 460 (2013))). If the consent exception
does not apply, that does not make the implied consent statute unconstitutional; it
simply means the State failed—on the unique facts of this or any case—to
demonstrate the consent exception excused the warrant requirement, and therefore,
the search was unreasonable under the Fourth Amendment. See id. ("When the
defendant disputes the voluntariness of his consent, the burden is on the State to
prove the consent was voluntary." (quoting Provet, 405 S.C. at 113, 747 S.E.2d at
460)); State v. Frasier, 437 S.C. 625, 638, 879 S.E.2d 762, 769 (2022) (stating
warrantless searches are unreasonable under the Fourth Amendment unless an
exception to the warrant requirement applies). Thus, the question before this Court
is a Fourth Amendment question, not a question of the constitutionality of the
implied consent statute.
In this case, the trial court erred by failing to consider the totality of circumstances
affecting whether German consented to a search and seizure without a warrant. The
majority has now done that and concluded the consent exception does not apply. I
would find under the totality of circumstances in this case the consent exception does
apply.
First, I would put great weight on implied consent. See generally Mitchell v.
Wisconsin, 588 U.S. ___, ___,139 S. Ct. 2525, 2532-33, 204 L. Ed. 2d 1040, 1045-
46 (2019) (explaining the Supreme Court's historical approval of "many of the
defining elements" of implied consent statutes). German—like all adults who hold
a driver's license in South Carolina—is an adult. She made a voluntary decision to
accept the privilege of driving in this State in exchange for granting consent to have
her blood drawn under the circumstances of this case.
Second, I would put little weight on the fact German was agitated and drunk in the
emergency room. The officer testified German was "very belligerent, and was
giving the hospital personnel a very hard time." The treating physician testified, "I
remember [German] because she was extremely belligerent and rude to staff." The
physician said German stuck out in her memory "because she was trying to bite
nurses, spitting at us, yelling at us, cursing at us." This disruptive behavior does not
indicate a lack of consent, but rather, is typical of someone who is extremely drunk.
The fact a suspect is agitated, belligerent, and extremely drunk does not affect the
person's capacity to consent to a search. See United States v. Watters, 572 F.3d 479,
483 (8th Cir. 2009) (recognizing intoxication is a circumstance to be considered as
to whether consent is voluntary, "but intoxication alone does not render consent
invalid"); United States v. Rambo, 789 F.2d 1289, 1297 (8th Cir. 1986) (noting "the
mere fact that one has taken drugs, or is intoxicated, or mentally agitated, does not
render consent involuntary"). Importantly, German was not intoxicated when she
voluntarily granted consent under the implied consent law.
Third, the officer read German a form stating, as the officer described it, "she doesn't
have to take the test or give the samples." As the majority explains, the officer read
German the wrong form. Under the Fourth Amendment, however, the error weighs
in favor of a finding of voluntary consent because the "correct" form does not
indicate the suspect may refuse the test. 17 The fact the officer told German she did
17
The "correct" form under the felony DUI statute provides, "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 [or] drugs . . . ." Rec. on Appeal at
349, State v. McCall, 429 S.C. 404, 839 S.E.2d 91 (2020) (No. 2015-001097).
not have to allow the blood draw—which the officer was not required to do under
the Fourth Amendment—is important in the totality of circumstances affecting
whether the consent exception applies. See Frasier, 437 S.C. at 638, 879 S.E.2d at
769 ("Police do not need to tell an individual that he can refuse to consent, but it is
a factor in the overall analysis." (citing Schneckloth v. Bustamonte, 412 U.S. 218,
248, 93 S. Ct. 2041, 2058, 36 L. Ed. 2d 854, 875 (1973); State v. Forrester, 343 S.C.
637, 645, 541 S.E.2d 837, 841 (2001))); Forrester, 343 S.C. at 645, 541 S.E.2d at
841 ("The lack of [a] warning [that a suspect may refuse consent] is only one factor
to be considered in determining the voluntary nature of the consent." (citing State v.
Wallace, 269 S.C. 547, 552, 238 S.E.2d 675, 677 (1977))); Wallace, 269 S.C. at 552,
238 S.E.2d at 677 ("[K]nowledge of the right to refuse consent to search is merely
another factor to be considered in the 'totality of the circumstances' in determining
the voluntariness of the consent to search." (citing Schneckloth, 412 U.S. at 248, 93
S. Ct. at 2058, 36 L. Ed. 2d at 875)).
As to the fact German did not sign the form, there is no evidence she "refused" to
sign it. Rather, the evidence indicates she was too unruly to even realize she was
being asked to sign it. The officer testified "she really didn't want to listen . . . and
there was no way she was going to sign this paperwork." He explained it is his
policy to write "refused to sign" when confronted with such disruptive behavior.
Nobody testified German actually refused to sign. For all we know, she did not sign
the form because she believed doing so was unnecessary in light of the implied
consent law. It is not for this Court to speculate as to her reasons for not signing the
form. In any event, when a suspect actually refuses to sign such a form, the refusal
does not by itself invalidate the implied consent. It is only part of the totality of the
circumstances a court must consider in determining whether the State has
demonstrated voluntary consent under the Fourth Amendment.
Fourth, the phlebotomist who actually drew the blood testified German "was willing
to have the blood drawn." I would put the most weight on this fact, that when the
officer told German "like it or not, we are getting a blood draw," she willingly gave
the sample. At the actual time of the blood draw, therefore, she gave no indication
she refused the test. This compelling fact tips the totality of the circumstances and—
in my view—requires a finding that she voluntarily consented to the blood draw.
In summary, German made a voluntary decision to grant consent for a Fourth
Amendment search and seizure when she accepted a license to drive in this State. In
the emergency room the night of the incident, she was told she did not have to allow
the blood draw, but she willingly did so. There is nothing in this record that indicates
German withdrew or revoked the consent she impliedly gave. Under the totality of
the circumstances, I would find German voluntarily consented to have her blood
drawn and the consent exception excused the warrant requirement.
The majority wrongly focuses on the constitutionality of the implied consent law.
Our implied consent statute should be read to place implied consent into the Fourth
Amendment analysis as one circumstance indicative of voluntary consent. Reading
the statute in this way, we fulfill our obligation to interpret our statutes as
constitutional, if possible. See State v. Ross, 423 S.C. 504, 514-15, 815 S.E.2d 754,
759 (2018) (recognizing we must construe statutes as constitutional if possible and
finding a way to read a subsection of the Sex Offender Registry Act as constitutional
(citing Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d
647, 650 (1999))).