North Carolina Juvenile Code; Criminal Law and Procedures; Show-up

Subject:

Requested By: Mary Claire McNaught Public Safety Attorney City of Winston-Salem

Questions: If a juvenile under the age of 16 is apprehended operating a motor vehicle while intoxicated, is it permissible to administer a breathalyzer test to the juvenile without a nontestimonial identification order?

 

1.  
2. Is it permissible to have a show-up (one-on-one victim-suspect confrontation) without a nontestimonial identification order when the suspect is a juvenile?

    

Conclusions: Yes.

 

1.  
2. Yes.

    

The 1979 General Assembly enacted the North Carolina Juvenile Code. Chapter 815, 1979 Session Laws. This new code became effective on January 1, 1980. Sections 5, Chapter 815, 1979 Session Laws. Among the many amendments concerning juveniles is a specific prohibition against nontestimonial identification procedures on any juvenile without a court order issued in accordance with the Code. G.S. 7A-550 (to be codified as G.S. 7A-596)

"Nontestimonial identification" is defined to mean identification:

". . . by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or other similar identification procedures required in the presence of a juvenile." G.S. 7A-550 (to be codified G.S. 596).

An order for a nontestimonial identification procedure may be issued by any judge of the district or superior courts upon request of a prosecutor. Id. The request for the order may be made (1) prior to taking a juvenile into custody, and (2) after custody and prior to adjudicatory hearing, or

(3) prior to trial in superior court where a case is transferred to that court. G.S. 7A-551 (to be codified as 7A-597). Any person who willfully violates the provisions of the Code which prohibit conducting nontestimonial identification procedures without an order issued by a judge shall be guilty of a misdemeanor. G.S. 7A-556 (to be codified as G.S. 7A-602).

The Code neither authorizes nor forbids the use of the breathalyzer test on a juvenile. See In Re Vinson, ___ NC ___(Fall Term 1979 No. 30) p. 12 n. 3. Since the statute does not forbid the use of the breathalyzer without a nontestimonial identification order, there appears to be no reason to prohibit it. It must be noted, that there is no authority to force or require a juvenile to submit to a breathalyzer test without an order (Blood specimens are specifically included as a nontestimonial identification procedue and therefore a blood test cannot be substituted in lieu of a breathalyzer test.).

G.S. 20-16.2(a) provides that any person who drives or operates a motor vehicle upon a highway or public vehicular area shall be deemed to have been given consent to a chemical test of his breath for the purpose of determining any alcoholic content if arrested for any offense arising out of acts alleged to have been committed while under the influence of intoxicating liquor. If this statute applies, assuming that the taking into custody of a juvenile is an arrest within the meaning of this statute, then the juvenile may refuse the test. "If the person arrested willfully refuses to submit to the chemical test designated by the arresting officer, none shall be given." G.S. 2016.2(c).

It therefore appears that an officer may take a juvenile into custody and request that the juvenile submit to the breathalyzer test. A voluntary submission to the test would appear to be appropriate and the results probably admissible. The test procedures set forth in G.S. 20-16.2 should be followed. Of course, a person under 16 will not a lose a license to drive which he does not possess. He may, however, lose a learner’s permit or be precluded from obtaining a license for six months if he willfully refuses the test. This is a civil matter within the auspices of the Division of Motor Vehicles. It is independent and separate from any juvenile proceeding. See Joyner v. Garrett, 279 N.C. 226 (1971).

The second question presented is whether a nontestimonial identification order is required of a juvenile prior to a "show-up". A show-up is a one-on-one confrontation between a victim and the suspect. "The practice of showing suspects singly to persons for the purpose of identification, and not a part of a lineup has been widely condemned. However, a claimed violation of due process of law in the conduct of the confrontation depends on the totality of the circumstances surrounding it . . ." Stovall v. Denno, 388 U.S. 293, 302 (1967).

The definition of nontestimonial identification found in G.S. 7A-550 (to be codified as G.S. 7A596) is identical to the definition found in G.S. 15A-271. In fact, the commentary of the Juvenile Code Revision Committee, 1979 Report, p. 185 indicates that the definition derived from G.S. 15A-271. The Supreme Court has previously held that a show-up is not a nontestimonial identification procedure within the meaning of G.S. 15A-271 et seq.

"Construing these statutes so as to achieve a logical relationship and to effectuate apparent legislative intent, we hold that Article 14 of Chapter 15A applies only to suspects and accused persons before arrest, persons formerly charged and arrested, who have been released from custody pending trial. The statute does not apply to an in-custody accused." State v. Irick, 291

N.C. 480, 490, 231 S.E. 2d 833(1977).

While the statutes in Chapter 7A and those in 15A differ to a certain extent, the statutes are sufficiently similar so as to conclude that a court will construe them the same. That is, a show-up is not an nontestimonial identification procedure requiring an order of the court.

G.S. 7A-551 (codified as G.S. 7A-597) provides for the orders to be issued "prior to taking a juvenile into custody, and prior to adjudicatory hearing, or prior to trial in superior court where a case is transferred to that court." This statute is similar to G.S. 15A-272. Both statutes indicate that the order was intended to apply to suspects who are not in custody or persons who have been arrested, posted bond and were released. See 45 N.C.A.C. 60 (1975). This conclusion is buttressed by G.S. 15A-274 which provides that the person named or prescribed in the affidavit or obtaining the order be required to appear at a designated place and time to submit to the nontestimonial identification. G.S. 7A-553 (codified as G.S. 7A-599) states that the judge may issue an order following the same procedures as in the case of adults under G.S. 15A-274. It would be illogical for the court to issue an order directing a juvenile to appear at a designated time and place when the juvenile is in custody and under the control of a law enforcement officer.

The most compelling reason for this conclusion is that the purpose of the Juvenile Code is to provide for juveniles to be rehabilitated and for the system to be sensitive to them. The most compelling reason for allowing a show-up is to ". . . guard against charging one whom the victim might exonerate." State v. Banner, 279 N.C. 595, 598 (1971). To require a juvenile be retained in custody until an order can be issued as opposed to be immediately taken to the victim and released when no identification is made, would appear contrary to the purpose of the Code. The General Assembly, surely, did not intent to preclude the police from using very efective investigatory tool by requiring an order prior to show-up.

It should be noted, however, that all safeguards and procedures for a show-up employed in the adult cases should always be employed for juveniles. The same showing in juvenile court prior to admission of identification testimony must be made. See G.S. 7A-573, rules of evidence codified as G.S. 7A-634). The criticism of the show-up and the safeguards required would also apply to a juvenile. See State v. Baker, 34 N.C. App. 434 (1977); Stoval v. Denno, Supra.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Special Deputy Attorney General