NC: The right to have counsel present during a breathalyzer test doesn’t apply to blood draws under a search warrant

The right to have counsel present during a breathalyzer test doesn’t apply to blood draws under a search warrant. State v. Shepley, 2014 N.C. App. LEXIS 1124 (November 4, 2014):

“During the administration of a breathalyzer test, the person being tested has the right to ‘call an attorney and select a witness to view for him the testing procedures.’ This statutory right may be waived by the defendant, but absent waiver, denial of this right requires suppression of the results of the breathalyzer test.” State v. Myers 118 N.C. App. 452, 454, 455 S.E.2d 492, 493 (1995) (quoting N.C.G.S. § 20-16.2(a)(6), and citing McDaniel v. Division of Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989), and State v. Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57 (1973) (other citation omitted). However, as stated above, if a defendant refuses to submit to the test designated by the law enforcement officer, no blood alcohol tests “may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.” The plain language of the statute limits its application to situations in which a defendant consents to take a breathalyzer or other test designated by the officer.