State v. Romano, 369 N.C. 678

On Feb. 17, 2014, police found Joseph Romano highly intoxicated near his SUV; he was arrested for DWI and taken to a hospital where he was medicated and unconscious.
Sergeant Fowler, a Drug Recognition Expert, did not obtain a warrant and did not advise Romano of chemical-test rights before medical staff drew blood for treatment; the nurse drew extra blood and Fowler accepted a portion for law enforcement.
Fowler expressly relied on N.C. Gen. Stat. § 20-16.2(b) (the “unconscious person” implied-consent clause) to justify taking the blood without a warrant; magistrates were available and no exigency was claimed.
Trial court suppressed subsequent testing of the blood under the Fourth Amendment; the Court of Appeals affirmed, holding the statute cannot justify a per se warrant exception under Missouri v. McNeely.
The North Carolina Supreme Court granted review, considered McNeely and Birchfield, and held § 20-16.2(b) unconstitutional as applied to Romano because it allowed a warrantless blood seizure without exigency or proof of voluntary consent.
The Court declined to consider the State’s good-faith, state-action, and independent-source arguments as waived for failure to raise them in the trial court; modified a Court of Appeals statement to confirm probable cause/"reasonable grounds."

Issue	State's Argument	Romano's Argument	Held
Whether § 20-16.2(b) authorized a warrantless blood draw from an unconscious DWI suspect	§ 20-16.2(b) implies consent and permits warrantless sampling of unconscious suspects	The statute functions as a per se warrant exception and violates McNeely and Birchfield; consent must be evaluated under the totality of circumstances	§ 20-16.2(b) unconstitutional as applied: cannot be used as a per se exception; warrant, exigency, or proved voluntary consent required
Whether exigent circumstances justified the warrantless blood draw	(State relied on statute; no exigency claimed)	No exigency; McNeely requires case-by-case totality analysis	No exigency shown; McNeely precludes a per se exigency based solely on alcohol dissipation
Whether implied consent under the statute satisfied Fourth Amendment consent requirement	Statutory implied consent supplies consent for unconscious suspects	Statute alone cannot substitute for voluntary consent under Schneckloth; voluntariness requires totality-based proof	Statute alone insufficient; State failed to prove voluntary consent under the totality of circumstances
Whether State preserved and may invoke good-faith, state-action, or independent-source exceptions	State later urged these doctrines on appeal	Romano: State waived such arguments by not presenting them below	Court held these defenses were not preserved and thus not before the Court (claims waived)

Missouri v. McNeely, 569 U.S. 141 (case-by-case exigency analysis; dissipation of alcohol not a per se exigency)
Birchfield v. North Dakota, 579 U.S. _ (distinguishes breath and blood tests; blood tests not permissible incident-to-arrest and criminalizing refusal to blood test exceeds implied-consent limits)
Schmerber v. California, 384 U.S. 757 (blood draw is a search; exigency can justify warrantless blood draw in narrow circumstances)
Schneckloth v. Bustamonte, 412 U.S. 218 (consent to search must be voluntary under the totality of circumstances; State bears burden to prove voluntariness)
Coolidge v. New Hampshire, 403 U.S. 443 (warrantless searches unreasonable unless they fall within recognized exceptions)
United States v. Leon, 468 U.S. 897 (good-faith exception where officers reasonably rely on a warrant)
Illinois v. Krull, 480 U.S. 340 (good-faith reliance on a statute later declared invalid can trigger Leon-based exception)
Davis v. United States, 564 U.S. 229 (good-faith exception applies where police rely on binding precedent later overruled)