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North Carolina v. Howren12/4/1984
I.
By driving a vehicle on a highway or public vehicular area a person consents to administration of a chemical analysis if he is charged with driving while impaired. N.C.G.S. § 20-16.2(a). A person required to submit to chemical analysis has the right to contact an attorney and select a witness to view the procedures, but the testing may not be delayed for these purposes more than thirty minutes. Id. A chemical analysis that reveals a blood alcohol level of 0.10 or more is sufficient under N.C.G.S. § 20-138.1(a)(2) to support a conviction of the criminal offense of driving while impaired. Because a person required to undergo chemical analysis
must decide whether to take the test and risk conviction on the basis of the result or refuse and have his license revoked for twelve months pursuant to N.C.G.S. § 20-16.2(a)(2), defendant argues that the chemical analysis is a critical stage of the prosecution requiring the police to advise him of his constitutional rights and entitling him to counsel. Based on his argument that a critical stage is involved, defendant contends that allowing him only thirty minutes to obtain counsel is unreasonable and violates his right to counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I § 23 of the North Carolina Constitution. We disagree.
The administration of a chemical analysis to determine if a driver is acting under the influence of an impairing substance is not a critical stage of the prosecution. The cases of State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971) and City of Tacoma v. Heater, 67 Wash. 2d 733, 409 P. 2d 867 (1966) cited by defendant stand only for the proposition that a critical stage of the prosecution has been reached only after a test for sobriety has been administered and the defendant has been charged with an offense. In Sedars v. Powell, 298 N.C. 453, 461-63, 259 S.E.2d 544, 550-51 (1979) this Court reviewed N.C.G.S. § 20-16.2(a) and concluded that there is no constitutional right to have counsel present prior to deciding whether or not to take a breathalyzer test. While the Sedars decision concerned a civil proceeding for the revocation of a driver's license for willful failure to submit to a breathalyzer test, the basic rationale of Sedars is applicable to a criminal charge of driving while impaired. See State v. Martin, 46 N.C. App. 514, 519, 265 S.E.2d 456, 459, cert. den., 301 N.C. 102 (1980), and State v. Sanchez, 110 Ariz. 214, 216-17, 516 P. 2d 1226, 1228-29 (1973). Defendant has no constitutional right to refuse to submit to chemical analysis, Schmerber Schmerber v. California, 384 U.S. 757, 761 (1966) (driver arrested for drunk driving has no constitutional right to refuse a compulsory blood test on advice of counsel), and anyone who accepts the privileges of driving on the highways of this State has consented to the use of chemical analysis. Sedars, 298 N.C. at 462, 259 S.E.2d at 550. The fact that as a matter of grace the legislature has given defendant the right to refuse to submit to chemical analysis, and suffer the consequences for refusing, does not convert this step in the investigation into a critical stage in the prosecution entitling defendant to
more than the 30 minutes provided in the statute to secure a lawyer. Otherwise, defendant would be able to delay the analysis until its results would be of doubtful value. For these
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