November 6, 1996
Chief O. Karl Clark Weldon Police Department Post Office Box 551 Weldon, North Carolina 27890
Re: Advisory Opinion: Authority of Municipal Law Enforcement Officer to Transport Arrestee Outside Territorial Jurisdiction; G.S. § 15A-501.1, G.S. § 20-16.2.
Dear Chief Clark:
This letter is in response to your request for an opinion regarding the authority of a municipal officer to transport an arrestee outside the officer’s territorial jurisdiction for the purpose of having an intoxilyzer test administered. It is my understanding that the Town of Weldon has neither a magistrate nor any type of alcohol breath testing instrument within the city limits. The nearest magistrate and an Intoxilyzer is located in the City of Roanoke Rapids.
The general powers and authority of municipal law enforcement officers are found in two separate sections of the General Statutes. Pursuant to G.S. § 160A-285, a municipal officer has, within the corporate limits of the city or town, "all the powers invested in law enforcement officers by statute or common law." In addition to their authority within the corporate limits of the town, municipal officers have these same powers within one mile of the corporate limits of the city or town, and on all property owned by or leased by the city wherever located. G.S. § 160A-286.
The arrest powers, generally, of municipal officers are set forth in G.S. § 15A-402. Pursuant to subsection(b) of this statute, law enforcement officers of cities and towns may arrest persons within their particular municipality and on any property and right-of-way owned by the municipality outside its limits. The one mile extraterritorial jurisdiction granted by G.S. § 160A286 is also reflected in this statute. G.S. § 15A-402(c). Additionally, the legislature amended
- G.S.
- § 15A-402(c), effective December 1, 1995, to allow municipal officers to transport a person in custody to or from any place within the state for purposes of that person attending criminal court proceedings. An officer engaged in such transportation has the power of arrest at any place within the state for offenses occurring in connection with an incident to the transportation of persons in custody. Further, G.S. § 15A-402(d) provides that municipal officers may arrest persons outside the above territorial jurisdiction when the person has committed a criminal offense within the officer’s territorial jurisdiction for which the officer could have arrested and the arrest is made during such person’s immediate and continuous flight from that territory. The duties of an officer upon arrest of a person are set forth in Article 23 of Chapter 15A of the General Statutes. More particularly, G.S. § 15A-501 provides that upon the arrest of a person the officer "must … take the person arrested before a judicial official without unnecessary delay."
- G.S.
- § 15A-501(5). Driving while impaired is an implied-consent offense. G.S. § 20-16.2. That is, a person who drives a vehicle on a street, highway or public vehicular area thereby gives consent to a chemical analysis to be administered when the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense. It is a magistrate’s duty to determine whether probable cause exists to believe that a crime has been committed. G.S.
§ 15A-511(a) and (c). To determine whether or not probable cause exists to charge a person with driving while impaired, an officer must take the person arrested before a chemical analyst authorized to administer a test of a person’s breath, G.S. § 20-16.2(a), and, in turn, take the person before a magistrate without unnecessary delay.
It is the opinion of this Office that in any instance where a magistrate, a chemical analyst, or both, are not available within a law enforcement officer’s jurisdiction, it is a necessary duty of the officer to take the arrestee outside the officer’s territorial jurisdiction. A contrary opinion would thwart the efforts of law enforcement officers in carrying out their statutorily mandated duty to bring an arrestee before a judicial official without unnecessary delay. As an arrestee under the control of the officer, the officer has authority over the arrestee at all times, even when outside his territorial jurisdiction when performing a necessary duty of his office.
This opinion is consistent with previous opinions of this Office on a similar question. See, 41 NCAG 775 (1972) and 50 NCAG 911 (1981) (company police officers, whose territorial jurisdiction is statutorily limited, by necessity have authority and jurisdiction to transport a person to a judicial official pursuant to G.S. § 15A-501; based on former Chapter 74A).
Andrew A. Vanore, Jr. Chief Deputy Attorney General
Jeffrey P. Gray
Assistant Attorney General Law Enforcement Liaison Section