A Hump Day Pop Quiz

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DWI law scholars, answer the following question.

Are the results of all breath tests that were administered to the defendant admissible in an implied consent case?

  1.  Yes, if the results from any two consecutively collected breath samples do not differ from each other by more than 0.02.
  2. No, only the two consecutively collected breath samples that do not differ from each other by more than 0.02 may be introduced.
  3. No, only the lower of two consecutively collected breath samples that do not differ from each other by more than 0.02 may be introduced.

The answer?  1.

The relevant authority? G.S. 20-139.1(b3).

This one should have been easy for anyone practicing DWI law. G.S. 20-139.1(b3) was amended effective for offenses committed on or after December 1, 2006 to provide that “[t]he results of the chemical analysis of all breath samples are admissible if the test results from any two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02.” The court of appeals implicitly acknowledged this in State v. Cathcart, 742 S.E.2d 321, 325 (N.C. App. 2013), referring to admissibility of “results.” See also State v. Arrington, __ N.C. App. __, 714 S.E.2d 777, 780 (2011) (noting that the trial evidence included “[t]wo separately administered Intoxilyzer Tests [that] indicated defendant’s blood-alcohol level to be .08”).

Why ask? Despite the straightforward language of G.S. 20-139.1(b3) and its presence on the books for nearly seven years, there still seems to be a fair amount of confusion in the field about the rule. The misunderstanding may stem from a couple of sources.

First, the 2006 rule marked a departure from then-existing procedure, which provided that when a pair of analyses resulted from consecutively administered tests and did not differ by more than .02, “only the lower of the two readings may be used by the State as proof of a person’s alcohol concentration in any court or administrative proceeding.” G.S. 20-139.1(b3)(3) (2005).

Second, current G.S. 20-139.1(b3) goes on to provide that “[o]nly the lower of the two test results of the consecutively administered tests can be used to prove a particular alcohol concentration,” giving rise to an obvious question:  If only one result is probative, why admit the two or more—in the case of multiple samples preceding the two that are within .02 of one another—results?  Like many of the statutory changes enacted in The Motor Vehicle Driver Protection Act of 2006, this change was recommended by the Governor’s Task Force on Driving While Impaired. The recommendation was among the changes listed as part of an effort to “clarify[y]” and “simplif[y]” the “admissibility protocol of chemical analyses.” Arguably, the admission of two results rather than one allows the fact-finder to ascertain that statutory procedures for obtaining a chemical analysis were followed. And, the admission of more than one result may bolster the fact-finder’s view of the reliability of the result upon which she permissibly may rely. See State v. White, 84 N.C. App. 111, 114 (1987) (noting that [t]here are several factors beyond the control of either the accused or the breathalyzer operator which can affect the accuracy of the readings, such as body temperature of the accused, extraneous alcohol in the mouth of the accused, physical exercise or hyperventilation, even the humidity and barometric pressure in the testing room” and that “[r]equiring sequential tests is one way of minimizing the effect these various factors could have on the accuracy of the breathalyzer readings by reducing the time between the two required samples”).

On the other hand, it isn’t unreasonable to suppose that the admission of multiple results might confuse a juror, particularly in a case in which the jury is instructed on the per se theory of impairment. The pattern jury instructions were not amended in 2006 to advise jurors in DWI cases that only the lower of two consecutive qualifying test results can be used to prove a particular alcohol concentration. Thus, a defense lawyer seeking to clarify the probative value of multiple results might wish to request such an instruction.

That’s your Wednesday update. Happy Hump Day to all.

3 comments on “A Hump Day Pop Quiz

  1. If the person administrating the Breath Test don’t like the readings they are getting all they do (commonly) is push the button that says refused. That makes the machine print out a paper stating refused then take that paper before a magistrate and swear out a false affidavit saying his intended victim refused and file that with the State DMV. The false charge WILL FLY like a Rocket. 3 years and counting.

    • The test ticket will show the first reading that the “person administering the test does not like” as well as the refusal. Your assumption on how the instrument works, as well as the ethics of officers, is incorrect. In addition, the defendant is advised they can get their own test if they want, so this should not be an issue.

  2. Excuse me I was there as a witness and watched it and have a copy of the printout. As far as ‘ethics’ it seem your PRESUMPTION is that our LEOs all have them. I can assure that IS not the case. I have volunteered for 3 years to be lie detected and have the LEO tested as well. That WONT happen because he IS a liar.

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