Amendments to Notice and Demand Provisions for DWI Cases

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No legislative session would be complete without amendments to the state’s DWI laws. The 2016 short session upholds this tradition by amending the procedures that govern the admissibility of chemical analyses in impaired driving trials in district and superior court.

Background. G.S. 20-139.1(a) provides that evidence of a person’s alcohol concentration or the presence of any other impairing substance in the person’s body as shown by a chemical analysis is admissible at a trial for any implied consent offense. Chemical analysis is a term of art. It means a test “of the breath, blood, or other bodily fluid or substance of a person to determine the person’s alcohol concentration or the presence of an impairing substance” that is “performed in accordance with G.S. 20-139.1.” G.S. 20-4.01(3a).

G.S. 20-139.1 requires that breath tests be (1) performed by a person with a DHHS permit on a breath-testing instrument that has been properly maintained, (2) that duplicate sequential breath samples be tested, and (3) that the results from those samples not differ by more than 0.02. Blood or urine withdrawn from a defendant in an implied consent case must be analyzed by an approved laboratory for the results to be admissible under G.S. 20-139.1.

Admitting the analysis without the analyst. Two subsections of G.S. 20-139.1 permit the results of a chemical analysis or a chemical analyst’s affidavit to be admitted into evidence without testimony from the analyst. A third permits the introduction of chain of custody statements without their signatories. These provisions often are referred to as notice and demand provisions pursuant to which a defendant’s right to confront witnesses for the State is deemed to be waived if not timely asserted.

Notice and demand for analysis of blood or urine. G.S. 20-139.1(c1) states that the certified results of a chemical analysis of a person’s blood or urine may be admitted in district or superior court if the State notifies the defendant at least 15 business days before the proceeding at which the evidence will be used that it intends to introduce the report and provides a copy of the report to the defendant. The defendant may object to introduction of the report without testimony from the certifying analyst by filing a written objection with the court, with a copy to the State, at least five business days before the proceeding. If the defendant fails to file a written objection, the objection is deemed waived and the report is admissible without the testimony of the analyst.

Statements regarding the chain of custody for blood or urine may be admitted under a similar rule. G.S. 20-139.1(c3)(3) permits the State to notify the defendant at least 15 business days before the proceeding at which a chain of custody statement would be used of its intent to introduce it. The State must provide the defendant with a copy of the statement at this time.  If the defendant does not file a written objection at least five business days before the proceeding, with a copy to the State, the defendant’s objection is deemed waived.

Notice and demand for breath test results. G.S. 20-139.1(e2) states that an affidavit from a chemical analyst—the document on which breath test results are reported–may be admitted in district court if the State notifies the defendant at least 15 business days before the proceeding at which the affidavit would be used of its intent to introduce the affidavit and provides a copy of the affidavit to the defendant. The defendant may object to the introduction of the affidavit without testimony from its author by filing a written objection with the court, with a copy to the State, at least five business days before the proceeding. If the defendant fails to file a written objection, the objection is deemed waived, and the affidavit is admissible without testimony from the affiant.

What’s new. S.L. 2016-10 (H 357) amends G.S. 20-139.1 in two significant respects.  First, it requires that the State provide the laboratory analysis of blood or urine to the defendant within 15 business days of receiving the report in order to avail itself of the notice and demand procedures in G.S. 20-139.1(c1). It likewise requires the State to provide the chain of custody statement to the defendant within 15 business days of receiving it to utilize G.S. 20-139.1(c3)(3) and the chemical analyst’s affidavit to the defendant within 15 business days of receipt to rely on the notice and demand procedures in G.S. 20-139.1(e2).

Second, the session law amends G.S. 20-139.1 to provide that the written objection filed by the defendant under (c1), (c3)(3), or (e2) or the defendant’s failure to file a written objection under those provisions remains effective at any subsequent calendaring of the proceeding. Thus, under the amended provisions, a defendant may not demand the appearance of an analyst or custodian for a new trial date if he or she did not demand the witness’s appearance within five business days of the first proceeding for which the State provided notice.

S.L. 2016-10 is effective October 1, 2016 and applies to trials commencing on or after that date.

5 comments on “Amendments to Notice and Demand Provisions for DWI Cases

  1. Notice and Demand procedures are bad enough. To write a new statute specifically stating that failure to demand is forfeiture of the right EVEN WHEN THE dang hearing hasn’t happened yet, is absurd. I would say if one were ever in the unfortunate position of having not filed the demand within the statute and then the hearing/trial does not occur on the date calendared, it would be advisable to then go ahead and file the demand before the next calendared date for the case to be heard. There are other issues, potentially including the reason for the continuance and constitutional implications that supersede this poorly-thought out attempt to further limit the confrontation rights of defendants in North Carolina by this legislature.

  2. So what does it mean when it says to provide these documents to the Defendant. Is the State only required to serve the Defendant or are they required to serve the documents on counsel who has already made an appearance in the case. It often happens that if the state furnishes anything that the defendant won’t know or will forget or otherwise not pass information along to the attorney who is already in the case. I see problems if there is not a specific duty to furnish to the defense attorney.

  3. The biggest change will be the US Supreme Court’s ruling that breath testing no longer has to rely on implied consent and can be conducted without a warrant categorically under the search incident to arrest standard. I hope that North Carolina moves expeditiously to criminalize breath test refusals. North Carolina will need to make several changes in order to take advantage of our Supreme Court finally giving the teeth needed for the states to fight drunk driving on our roads.

    • Move back to the Eastern Bloc.

  4. So today’s edition in the continuing saga of “DWI Defendants Don’t Get Constitutional Rights,” we get assaults on both the Confrontation Clause AND Speedy Trial rights! I don’t know where to begin with this mess. First off, in subsection (e2) of the law we get this gem: “The case shall be continued until the analyst can be present. The criminal case shall not be dismissed due to to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.” That is code for: We know getting the analysts from the Pennsylvania lab is going to be a pain, but lets go ahead and chisel away at a defendant’s speedy trial rights some more and remove judicial discretion in interpreting the Sixth Amendment because, you know, its the Almighty Capital Misdemeanor, the DWI, and we can bend the rules.
    Then we get incredibly unclear language about the notice and demand provisions. I’ve seen prosecutors serve a notice on defendants at first appearances that they intend to use a chemical analyst affidavit in the future. Is it 5 days before the first court date after first appearances that a defendant must object or waive their Confrontation Clause rights forever? Before a client can hire an attorney or meet with a court appointed lawyer? Or is it five days before the first court date that the case is set for trial? What about blood cases? Is it five days from when the blood report is returned? Who knows? To be fair to prosecutors, how is the State supposed to serve the results of a report within 15 days of receiving it? Court dates can be more than 15 days apart. I guess the Assembly figures they will just let the people who actually practice law sort that stuff out.
    When the ability to exercise a Constitutional right is narrowed enough, it becomes useless. This is the functional equivalent of passing a law that says that if you don’t wear a green shirt on Mondays, you hereby waive your right to refuse a consent search during a traffic stop? Why would that law be unconstitutional? You still have the right available to you. If you are mad about your ability to exercise your right being limited, make sure you wear that green shirt. Its ridiculous that the Assembly thinks they can narrow everyone’s Confrontation Clause rights by imposing stringent 5 day requirements on people who may not have had the ability to consult an attorney. They get away with it because everyone knows that DWIs get treated differently.

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