Can I Get a Remedy? Suppression of Chemical Analyses in Implied Consent Cases for Statutory Violations

Dan Defendant is charged with and arrested for driving while impaired. He is taken to a law enforcement center for administration of a chemical analysis. At 2:00 a.m., the chemical analyst informs Dan of his implied consent rights, as set forth in G.S. 20-16.2. Dan indicates that he wishes to call a witness. Dan calls his roommate, who does not answer the phone. Dan leaves a message asking his roommate to come immediately to the law enforcement center to view the test. At 2:27 a.m., the chemical analyst requests that Dan submit to a chemical analysis by blowing into the Intoximeter. Dan complies. The Intoximeter reports a breath alcohol concentration of 0.10. After taking the test, Dan is taken before the magistrate for an initial appearance. Dan’s roommate does not appear at the law enforcement center or magistrate’s office; nor does anyone else appear to see Dan. Dan moves before trial to suppress the Intoximeter results on the basis that the chemical analyst failed to delay the test for thirty minutes to allow the witness time to arrive as required by G.S. 20-16.2(a)(6). How should the judge rule on the motion to suppress?

While G.S. 15A-974(2) requires the suppression of evidence obtained as a result of a substantial violation of Chapter 15A, no statute requires the suppression of evidence obtained in violation of Chapter 20, which contains the provisions governing implied consent. Nevertheless, in opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results based upon statutory violations related to their administration. The line of cases providing this remedy begins with State v. Shadding, 17 N.C. App. 279 (1973), a case decided four years after the legislature’s enactment of the statute requiring that a person be informed of certain implied consent rights before administration of a chemical analysis. In Shadding, the court held that upon objection by a defendant to evidence of the results of a breath test on the grounds that he or she was not notified of the right to call an attorney and select a witness, a trial court must conduct a hearing and find as a fact whether the defendant was so notified. If the trial court finds that a defendant was notified, it must also determine whether the “test was delayed (not to exceed thirty minutes from time defendant was notified of such rights) to give defendant an opportunity to call an attorney and select a witness to view the testing procedures, or whether defendant waived such rights after being advised of them.” Id. at 283. Reasoning that “[s]uch rights of notification, explicitly given by statute, would be meaningless if the breathalyzer results could be introduced into evidence despite non-compliance with the statute,” the court held that the State’s failure to offer evidence regarding whether Shadding was advised of his rights under G.S. 20-16.2(a) rendered results of the breath test inadmissible. Id. at 282-83. Furthermore, the court explained that when a defendant is advised of such rights, and does not waive them, “the results of the test are admissible in evidence only if the testing was delayed (not to exceed thirty minutes) to give defendant an opportunity to exercise such rights.” Id. at 283.

In State v. Fuller, 24 N.C. App. 38 (1974), the court relied upon Shadding in holding that the results of the defendant’s breath test were improperly admitted into evidence. In Fuller, the officer who administered the test testified that he advised the defendant of his right to refuse to take the test, his right to have witnesses and an attorney present, and that he would be afforded thirty minutes to obtain the witness. Fuller alleged, however, that he was not advised of his right to have an additional test administered by a qualified person of his own choosing. Holding that the State’s failure to prove that the defendant was accorded this statutory right rendered the test results inadmissible, the court commented that if the failure to advise of the rights set forth in G.S. 20-16.2 “is not going to preclude the admission in evidence of the test results, the General Assembly must delete the requirement.” Id. at 42.

Not surprisingly, the court of appeals has deemed denial of the rights promised in the notice required by G.S. 20-16.2(a), like denial of notice itself, to require suppression of test results. Thus, in State v. Myers, 118 N.C. App. 452 (1995), the court held that breath test results were improperly admitted as the defendant was denied the right to have his wife witness the breath test. Myers told the officer that he wanted his wife to come into the breath testing room and the officer said “that might not be a good idea because she had been drinking also.” Id. at 453. The court found the officer’s statement “tantamount to a refusal of that request,” which barred admission of the results at trial. Id. at 454. Likewise, in State v. Hatley, 190 N.C. App. 639 (2008), the court held that suppression of the defendant’s breath test results was required as the defendant called a witness who arrived at the sheriff’s office within thirty minutes and told the front desk duty officer that she was there to see the defendant and yet was not admitted to the testing room. Neither Myers nor Hatley demonstrated irregularities in the breath-testing procedures or that having a witness present would have facilitated their defense of the charges. The court of appeals required no such showing, holding that the denial of the right required suppression of the results without any corresponding demonstration of prejudice.

Yet, in a couple of limited instances, the court of appeals has required that the defendant demonstrate prejudice–or at least consequences–resulting from a statutory violation to be entitled to relief. In State v. Buckner, 34 N.C. App. 447 (1977), the defendant argued that it was error for the court to admit the result of his breath test, which was administered after the arresting officer observed him for only twenty minutes, rather than the thirty minutes provided by statute. The defendant, who made a phone call after being advised of his implied consent rights, argued that the State was required to demonstrate that he waived the right to have an attorney or witness present to introduce the result of the test. The court rejected the defendant’s argument, pointing to the defendant’s failure to contend that a witness or lawyer was “on the way to the scene of the test” or “that an additional 10 minutes would have resulted in any change of status.” Id. at 450. The court held that a delay of less than thirty minutes was permissible as there was no evidence “that a lawyer or witness would have arrived to witness the proceeding had the operator delayed the test an additional 10 minutes.” Id. at 451. In so holding, the court effectively elevated the showing required of a defendant in such a case to include the demonstration that being afforded the right would have enabled its exercise.

The court imposed a similar requirement in State v. Green, 27 N.C. App. 491 (1975). In that case, the officer “garbled” the notice of the defendant’s right to have an independent test performed, implying that the defendant could call a qualified person to administer the initial chemical analysis rather than informing him that he could have a subsequent independent test. Id. at 495. The court held that this irregularity did not require suppression of the breath test results, concluding that “had defendant availed himself of the right given, even as given, the officer would have gotten the person requested and would have undoubtedly known that the purpose was to have an additional test administered.” Id. The court further commented:  “We cannot see how the defendant could possibly have been prejudiced.” Id.

What distinguishes Buckner from Myers and Hatley? Green from Shadding and Fuller? Certainly, they represent different degrees of violation. In Myers and Hatley, live witnesses were turned away or denied admittance, while in Buckner the defendant merely was denied the full thirty minutes afforded him by statute to procure a potential witness’s appearance. And in Shadding and Fuller, notice was all together lacking, not just garbled as it was in Green. Other than differential treatment based upon severity of the violation, I’m at a loss for why the court looked for harm or, at least a changed status, resulting from the violations in Buckner and Green but not in the other cases. Readers, if you can identify a more principled basis for the distinction, please share it.

So let’s return to the scenario described at the beginning of the post. Dan Defendant’s statutory rights arguably were violated as the officer failed to afford Dan thirty minutes in which to exercise the right to contact an attorney or obtain a witness before taking the test. The question is whether Dan must demonstrate something more to warrant relief. Buckner indicates that he must. Given that no one appeared to witness Dan’s test within the thirty minutes for which it could have been delayed, Dan cannot demonstrate that the failure to postpone the test an additional three minutes resulted in his inability to have a person witness the test. Thus, denial of Dan’s motion to suppress is the appropriate ruling.

3 thoughts on “Can I Get a Remedy? Suppression of Chemical Analyses in Implied Consent Cases for Statutory Violations”

  1. Consider State v. Lloyd 33 NCApp 370

    “General Statute 20-16.2(a) states and Shadding so holds that the breathalyzer test will be delayed a maximum of thirty minutes from the time defendant is notified of his rights. The statute gives the defendant the right to have a lawyer, doctor, nurse, or witness present at the testing. The purpose of the delay is to allow the defendant, who exercises his rights, a reasonable but limited amount of time to procure their presence. The effect of the statute then is to require a defendant to exercise his rights in a timely manner. Even if he does exercise his rights within thirty minutes of notification, the test can and will be administered after the lapse of thirty minutes regardless of whether the requested persons have arrived.

    Beyond the delay described above, there is no statutorily prescribed delay. In the present case there was a period of twenty-five minutes after notification during which defendant made no effort to exercise his rights. At the time the test was administered, defendant made no effort to exercise his rights. The police are not required to delay testing unless the defendant exercises his rights. Thus there was no error in the testing procedures nor in the admission of the test results.”

    Lloyd stands for the proposition that if a defendant exercises his right, the test must be delayed a maximum of 30 minutes. Lloyd is consistent with Shadding(COA), Fuller(NCSC), Myers(COA), and Hatley(COA)

    So how do you reconcile these opinions and Buckner(COA) and Green(COA). You cannot do so because they do not reflect a consistent application of the law. If you consider and follow the statutory rules of construction, the express language of the statute in question, and accept who has the BOP, Shadding, Fuller, Myers, and Hatley, support the conclusion reached in Lloyd. Consider the following:

    1. G.S. 20-16.2(a) is a penalty statute and should be construed strictly. Price v. DMV 36 NCApp 245; Seders v. Powell 298 NC 453;
    2. G.S. 20-16.2(a)(6) is clear and unabgiuous in its language. It gives a defendant 2 rights, and a 30 minute delay to exercise those rights for the stated purposes. IT DOES NOT place any burden on a defendant other than advisement to the CA to exercise the rights. When the GA intended to place a BOP on a defendant, it expressly so stated(e.g. preventative maintenance)
    3. The Buckner and Green courts were not able to cite any rule of construction or case law to support their conclusions, and failed to discuss or explain how such a requirement was derive from the express language of the statute.

    I would submit that the courts were engaging in judicial activism in a case involving a crime that is politically unpopular and publicly unacceptable. When courts engage in such action, it creates opinions that cannot be logically reconciled with decisions that followed the law.

    Of the opinions cite, the majority 5, including a case from the NCSC, followed a strict application of the statute while the minority 2 did otherwise. If an opinion is to be taken objectively, we should follow what a majority of the appellate courts have reasoned rather than a minority position which is lacking in a thorough legal analysis. The defendant’s motion should be granted


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