In impaired driving cases, the results of a breath test of the defendant are admissible at trial when the testing is performed in accordance with statutory requirements and applicable administrative regulations. G.S. 20-139.1(b). When the testing is not carried out as required, however, the results are inadmissible. See State v. Davis, 208 N.C. App. 26, 34 (2010).
Among the testing requirements is that the law enforcement officer carrying out the test observe the defendant to determine that he or she “has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” See 10A NCAC 41B .0101(6) (defining “observation period” and specifying further that “[d]ental devices or oral jewelry need not be removed”); 10A NCAC 41B .0322 (requiring that observation periods be met before breath test is conducted). The purpose of the observation period is to ensure that the test results reflect the concentration of alcohol in a sample of the person’s deep lung breath rather than an alcohol concentration based on alcohol in the person’s mouth.
Last week, the Court of Appeals in State v. Forney, ___ N.C. App. ___, ___ S.E.2d ____ (January 16, 2024), considered whether tests results from a defendant who had chewing gum in his mouth during the observation period were admissible under G.S. 20-139.1(b).
Facts. An Asheville police officer stopped the van Mr. Forney was driving after seeing him run a stop sign. During the stop, the officer smelled alcohol and observed signs of impairment. The officer arrested Mr. Forney for impaired driving and took him to the jail for breath testing.
Another officer, who was certified to conduct breath tests, advised Mr. Forney of his implied consent rights and carried out the testing. After Mr. Forney’s first breath sample, which registered a 0.11 alcohol concentration, the officer noticed that Mr. Forney had chewing gum in his mouth. Mr. Forney removed the gum and submitted a second breath sample, which also registered a 0.11.
Mr. Forney was charged with habitual impaired driving. He moved before trial to exclude the breath test results on the basis that the officer failed to follow the required observation period before requiring him to blow a second time. The trial court denied the motion. Mr. Forney was convicted and appealed.
Issue on appeal. Mr. Forney argued on appeal that the test results were inadmissible because the test was not performed in accordance with statutory and administrative requirements. He contended there was an implicit requirement that foreign objects (other than dental devices and oral jewelry) be removed from the test subject’s mouth before the observation period began. Because Mr. Forney was tested immediately after he removed chewing gum from his mouth, he argued the test was not carried out as required. While the State agreed that test results are only admissible if statutory and administrative rules are followed, it contended there had been no violation. The State urged the Court of Appeals to adopt the trial court’s view that because chewing gum is not “eating,” the act does not trigger a new observation period.
Court’s analysis. Judge Thompson wrote the lead opinion for the panel. She employed the following reasoning: (1) The purpose of the statutory and administrative requirements is to ensure that chemical analysis results are valid; (2) The accuracy of those results could be tainted by the presence of substances in the mouth during testing; (3) Construing the applicable regulation in the literal manner advocated by the State would permit activities such as chewing gum, tobacco, or food, dipping snuff, sucking on a medicated throat lozenge, using an inhaler, or swallowing a pill; and (4) Such a construction would lead to absurd results.
Thus, Judge Thompson interpreted the administrative rules to require that foreign objects generally be removed from the test subject’s mouth during the observation period.
Because the officer failed to conduct a new observation period after the defendant removed the gum, she reasoned that the test was not carried out in accordance with statutory requirements and was therefore inadmissible. Nevertheless, Judge Thompson upheld the conviction. She found that Mr. Forney failed to show that, had the breath tests results been excluded, there was a reasonable possibility that the jury would have returned a verdict of not guilty. Judge Thompson pointed to the number of clues that the arresting officer observed on the standardized field sobriety tests, the officer’s testimony that these results suggested “‘a 91 percent case that’” Mr. Forney was appreciably impaired, and the officer’s testimony about Mr. Forney’s red glassy eyes, his slurred speech and the strong odor of alcohol. (Slip op. at 17).
Judge Arrowwood concurred in the result. Judge Wood concurred in the result, but wrote separately to express her view that the trial court did not err by admitting the breath test results. She reasoned that the plain language of the regulations did not prohibit a person from chewing gum during the observation period, and that chewing gum did not constitute eating, an act that is prohibited.
What is the holding? No opinion garnered a majority. Thus, Forney does not resolve the question of whether an officer’s failure to restart the observation period renders the results inadmissible. Cf. Betts v. North Carolina Dep’t of Health & Hum. Services – Cherry Hospital, 289 N.C. App. 629, 888 S.E.2d 414, 414 (2023) (unpublished) (concluding that because two judges in an earlier court of appeals panel concurred in the result only “on the basis of discretion under Rule 15, the precedential authority of [that earlier case] is limited to its holding that the trial court did not abuse its discretion under Rule 15.”). All Forney holds is that there was no prejudicial error in Mr. Forney’s case. Nevertheless, a cautious officer/analyst in a future case will opt to restart the observation period upon discovering a foreign object in a defendant’s mouth. Indeed, both the testing officer and a supervisor from the North Carolina Forensic Tests for Alcohol Branch who testified for the State at Mr. Forney’s trial acknowledged that the “best practice” would have been to restart the observation period. (Slip op. at 5; Defendant-Appellant’s Brief at 9).
The matter of prejudice. Mr. Forney argued on appeal that the introduction of the breath test results was prejudicial. He pointed out that the jury was instructed on two theories of impairment: the per se theory based on an alcohol concentration of 0.08 or more as well as the theory that he was under the influence of an impaired substance. As for the per se prong, the judge instructed jury, in accordance with the pattern jury instructions and G.S. 20-138.1(a)(2), that “[t]he results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.” Thus, Mr. Forney argued, “once the breath test results were admitted into evidence, the case became a slam-dunk for the State.” (Defendant-Appellant’s Brief at 24). He contended that the State’s case would not have been nearly as compelling had the State been limited to the impairment prong of the statute and cited cases finding the erroneous admission of alcohol concentration results to be prejudicial. (Defendant-Appellant’s Brief at 25 (citing Davis, 208 N.C. App. at 35-40 (erroneous admission of expert testimony that defendant’s BAC was .18 was prejudicial); State v. Gray, 28 N.C. App. 506 (1975) (awarding new trial for State’s failure to lay proper foundation for the admission of breath test results); State v. Warf, 16 N.C. App. 431, 431-32 (1972) (same); State v. Chavis, 15 N.C. App. 566, 567-68 (1972) (erroneous admission of breath test showing .15 BAC “resulted in clear and manifest error prejudicial to defendant” even though the State had sufficient evidence of impairment even without the test result to survive a motion for nonsuit))).
As I’ve already mentioned, the author of the lead Court of Appeals opinion saw it differently, relying on testimony from the arresting officer about Mr. Forney’s performance on field sobriety tests and the likelihood that a defendant who performs in that manner is impaired as well as on the officer’s testimony about Mr. Forney’s red glassy eyes, his slurred speech, and the strong odor of alcohol. These are the types of observations that the appellate courts frequently rely upon as establishing probable cause to arrest in impaired driving cases. In Mr. Forney’s case, however, they satisfied at least one judge that the jury would likely have found Mr. Forney guilty even without the breath test results.