If a North Carolina city or town officer arrests someone (often for DWI) but the local magistrate or chemical analyst isn't available, can the officer drive the arrestee outside the officer's territorial jurisdiction to find one?

Plain-English summary

This North Carolina Attorney General opinion concluded that when a magistrate or chemical analyst is unavailable within an officer's territorial jurisdiction, the officer has a necessary duty to take an arrestee outside that jurisdiction. G.S. § 15A-501 required the officer to bring an arrested person before a judicial official without unnecessary delay. The opinion said the officer retains authority over an arrestee under the officer's control while carrying out that duty beyond the jurisdictional boundary.

The opinion also discussed G.S. § 15A-402(c), which authorized statewide transport of a person in custody to or from criminal court proceedings and gave an officer a limited arrest power for offenses connected with that transport. It separately described § 15A-402(d), concerning immediate and continuous flight from the officer's jurisdiction. Neither provision was presented as a general statewide arrest power during a trip to find a magistrate or analyst.

For an impaired-driving arrest, the opinion described taking the person to an authorized chemical analyst and then to a magistrate without unnecessary delay. It cited earlier opinions about company police officers' authority to transport an arrestee to a judicial official. It did not decide the outcome of any defendant's challenge to a particular arrest or transport.

Currency note

This opinion applied the statutes and procedures discussed in 1996. Check current arrest, transport, and implied-consent law for a present situation.

Common questions

May an officer cross a jurisdictional boundary to find an available magistrate or chemical analyst?

The opinion said yes when neither required official is available within the officer's jurisdiction. It treated that trip as a necessary part of bringing an arrestee before a judicial official without unnecessary delay.

Does the opinion grant general statewide arrest power during that trip?

No. It described a limited arrest power under G.S. § 15A-402(c) for offenses connected with transport to or from criminal court proceedings. It did not extend that provision to unrelated offenses during magistrate or analyst transport.

Did the opinion decide a sheriff's statewide authority or a defendant's suppression claim?

No. It addressed an officer's duty and authority to transport an existing arrestee when a magistrate or chemical analyst was unavailable locally.

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-officer-to-transport-arrestee-outside-jurisdiction/

Citations

• G.S. § 15A-402
• G.S. § 15A-501
• G.S. § 15A-511
• G.S. § 20-16.2
• Chapter 74A (former)
• 41 NCAG 775 (1972)
• 50 NCAG 911 (1981)

Original opinion text

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