October 12, 1977
Subject:
Pre-Arrest Chemical Blood Alcohol Test; G.S. 20-16.2(i)
Requested By:
Chief P. L. McIver Garner Police Department 900 Seventh Avenue Garner, North Carolina
Question:
Must a driving while under the influence suspect who requests a pre-arrest chemical test pursuant to G.S. 20-16.2(i) be permitted to drive his own vehicle to the test site?
Conclusion:
No. When a driver requests the administration of a pre-arrest chemical test he impliedly agrees to peacefully accompany the officer to the place where the test can be administered. If the driver refuses to peacefully accompany the officer to the test site the officer should then place the driver under arrest.
Chapter 812 of the 1977 session laws fails to consider explicitly the situation where a suspect refuses to accompany the officer, but instead insists upon driving his own vehicle to a chemical test location. The plain language would seem to preclude an arrest once the suspect has requested a chemical test. Such a literal reading would result in persons reasonably believed to be under the influence of intoxicating liquor operating motor vehicles under the authority of North Carolina General Statutes Chapter 20 and with the implied permission of a law enforcement officer. It is a cardinal principal of North Carolina statutory construction that "the language of the statute willl be interpreted to avoid absurd consequences." Person v. Garrett, 280 N.C. 163, 166 (1971). A particular statute must be read in pari materia unless the legislature indicated a clear intent to repeal other provisions. Cab Co. v. Charlotte, 234 N.C. 572 (1951).
G.S. 20-138 is a safety statute designed to protect state highway system users from the dangers of persons operating motor vehicles while under the influence of intoxicating liquor. G.S. 20-16, et seq., establishes an enforcement scheme in conjunction with 20-138. These statutes provide for the administration of chemical blood alcohol tests to DUI suspects, with suspension of driving privileges as a penalty for test refusals. Read in pari materia, G.S. 20-16, 20-138, and other sections are safety statutes with enforcement provisions. It becomes a law enforcement officer’s duty to stop persons suspected of operating vehicles while under the influence of intoxicating liquor, and to arrest those whom he reasonably believes are in violation of G.S. 20-138.
Chapter 812 was written into this overall statutory scheme as a narrow, conditional, and temporary exception to a law enforcement officer’s power of immediate arrest. As an exception to a criminal law, it is narrowly construed and considered with the remaining statutory provisions. Chapter 812 was enacted to permit a suspect, prior to arrest for driving while under the influence, to request a chemical blood alcohol test. The statute was intended to avoid a situation in which an officer arrests a suspect, administers the test, and obtains a reading insufficient to support a conviction. Such a suspect thus acquired an arrest record, with the usual publicity, and may have had to post bond. The legislature attempted to provide a scheme to avoid this situation. It did not intend to authorize driving while under the influence of intoxicating liquor.
It is our considered opinion that Chapter 812, when construed in pari materia, requires the cooperation of a suspect who exercises his rights under G.S. 20-16.2(i). A suspect who requests a pre-arrest chemical test impliedly agrees to peacefully accompany the officer to the test site. A suspect’s insistence upon operating his own vehicle to the test location would constitute a waiver of his pre-arrest test rights. Such a view is consistent with G.S. 20-138 and the remaining portions of 20-16. This statutory interpretation preserves a suspect’s prearrest test right, as expressed by the legislature. It also protects other highway users from the dangers of an intoxicated driver. Officers confronted with a suspect who insists upon operating his own vehicle to the test site should clearly inform the suspect that such an action constitutes a waiver of pre-arrest test rights under G.S. 20-16.2(i). A suspect who thereafter refuses to accompany the officer should be placed under immediate arrest and carried before a magistrate.
Rufus L. Edmisten Attorney General
David Roy Blackwell Associate Attorney