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. Continue reading
Tag Archives: chemical analysis
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?
- Yes, if the results from any two consecutively collected breath samples do not differ from each other by more than 0.02.
- No, only the two consecutively collected breath samples that do not differ from each other by more than 0.02 may be introduced.
- 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.
A six-year battle in Minnesota regarding the reliability of breath test results in impaired driving cases in light of alleged defects in the testing instrument’s source code ended last summer. The State mostly won, though the Minnesota Supreme Court determined that machine-generated reports of a deficient breath sample were unreliable absent corroborating evidence. The case is In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525 (Minn. 2012), and here is the backstory:
In 2006, a driver charged with DWI in Minnesota filed a motion for discovery of the source code for the instrument used to test his breath, the Intoxilyzer 5000EN. (The breath testing instrument currently used in North Carolina is the Intoximeter, Model Intox EC/IR II.) After his motion was granted and the state’s challenges were rejected on appeal, discovery of Intoxilyzer source code became standard litigation strategy in criminal DWI and implied consent proceedings in Minnesota. (Discovery of source code has not been so liberally granted in other jurisdictions, as Jeff noted in this earlier post.) In light of the numerous discovery requests, Minnesota sought to have assigned to a single judge or panel of judges all pending and future implied consent cases, both civil and criminal, challenging the reliability of the Intoxilyzer 5000EN based on allegedly defective source code. The Minnesota supreme court assigned the cases to a single district court judge.
Obtaining the source code was, of course, only the first step toward challenging the breath tests. Defendants and other petitioners (hereinafter “petititioners”) retained experts to study the source code. Those experts identified several deficiencies. Chief among them were criticisms that (1) the instrument did not conduct self-testing to determine if, for example, it was unplugged or if there was a change in voltage, (2) the instrument did not adequately detect radio frequency interference from cell phones, (3) the instrument’s failure to report the margin of error rendered the results unreliable, and (4) the range for breath volume required for an accurate reading was too narrow, resulting in reports of a “deficient sample” for breath samples that were, in fact, adequate.
Petitioners moved to exclude all test results in their trials or hearings, arguing that the defective code affected the reliability of both the instruments that reported a breath test result and instruments that reported a deficient breath sample. In the alternative, the petitioners moved for a pretrial order allowing them to present expert testimony in their individual trials or hearings that the alleged defects in the source code affected the precision of the test results.
After a two-week long evidentiary hearing, the district court denied both requests. The court determined that the alleged defects did not affect the reliability of numerical breath test results. The court determined that the self-tests were not necessary because the machine was operated by a person, the possibility of radio frequency interference caused by cell phones was remote, and that any requirement for reporting of a margin of error with every breath test result was beyond the scope of the issue before the court and was instead in the realm of policy decision making. As to machine-generated reports of deficient samples, however, the court determined that shortcomings in the source code did affect the reliability of these reports. Thus, the court ruled such results inadmissible absent other evidence that supported the sample being deficient.
The petitioners appealed, arguing, among other things, that the trial court’s ruling precluding them from introducing evidence of problems with the source code violated their right to due process. A majority of the supreme court disagreed on the grounds that the petitioners had been afforded a hearing on the issue and the source code defects the petitioners had identified were not relevant to the validity of the test results. Indeed, the petitioners’ primary expert had concluded the Intoxilyzer 5000EN provided valid breath alcohol measurements, a fact that, in the words of the district court, cast “‘a large shadow over the hearing.’” Three justices dissented, expressing the view that the source code would be probative of accuracy in certain cases and that the rulings deprived defendants of the opportunity to cross-examine officers about the reasons why certain procedures must be followed in administering a test, such as ensuring that a cell phone is kept sufficiently far from a testing device.
In North Carolina, a chemical analysis of a person’s breath administered pursuant to the implied-c0nsent law is, by statute, admissible in any court or administrative proceeding. See G.S. 20-139.1(b). I’m sure defendants regularly challenge the reliability of those results. I don’t know whether any have successfully obtained the source code or mounted a challenge on that ground. My sense is that while the battle in Minnesota may be over, the North Carolina skirmish has not yet begun in earnest. And, to complete the metaphor, I suspect the war over the accuracy of chemical testing will rage on.
The usual way for the State to establish that a person drove while impaired under the per se prong of G.S. 20-138.1 is to introduce the results of a chemical analysis demonstrating that the person had an alcohol concentration of 0.08 or more at any relevant time after the driving. Not only are the results of a chemical analysis “deemed sufficient evidence to prove a person’s alcohol concentration,” but they also may be admitted at trial without the foundation required for similar types of scientific evidence. G.S. 20-139.1. Not just any test of a person’s breath, blood or bodily fluid, however, constitutes a “chemical analysis.” G.S. 20-4.01(3a). To qualify, the test must be performed in accordance with G.S. 20-139.1.
A breath test “administered pursuant to the implied-consent law,” and performed in accordance with rules of the Department of Health and Human Services (DHHS) by a person with a current DHHS permit for the type of instrument employed is an admissible chemical analysis. G.S. 20-139.1(b). A blood or urine test likewise is deemed an admissible chemical analysis if: (1) a law enforcement officer or chemical analyst requested a blood and/or urine sample from the person charged; and (2) a chemical analysis of the person’s blood was performed by a chemical analyst possessing a DHHS permit for the type of analysis performed. G.S. 20-139.1(c4). Before it was amended by the Forensic Sciences Act of 2011, G.S. 20-139.1(c2) required that a test of blood or urine be performed in accordance with rules or procedures adopted by the State Bureau of Investigation, or by another laboratory accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). For offenses committed on or after March 31, 2011, such tests must be performed by a laboratory that is accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement for Testing.
The State is not limited, however, to proving a defendant’s alcohol concentration by means of a chemical analysis performed in accordance with G.S. 20-139.1. Instead, the State also may prove a defendant’s alcohol concentration by introducing the results of other reliable tests showing the presence of a controlled substance. G.S. 20-139.1(a). One circumstance in which the State might rely upon a test that is not a chemical analysis occurs when a defendant is hospitalized after an incident of suspected impaired driving and his or her blood or urine is analyzed for purposes of medical treatment. In such a case, testing is performed pursuant to hospital laboratory procedures rather than the procedures required by G.S. 20-139.1. In State v. Drdak, 330 N.C. 587 (1992), the state supreme court determined that the trial court did not err by denying the defendant’s motion to suppress blood test results from a hospital laboratory proffered by the State at defendant’s trial on impaired driving charges to prove his alcohol concentration. The court characterized the defendant’s contention that the blood test results were inadmissible because the test was not performed in accordance with the procedures set forth in G.S. 20-16.2 and G.S. 20-139.1 as “fl[ying] squarely in the face of the plain reading of [G.S.20-139.1(a)],” id. at 592, which states that “[t]his section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests,” G.S. 20-139.1(a).
Of course, results of tests performed outside the scope of implied consent laws are not afforded the presumptive admissibility of chemical analyses satisfying the requirements of G.S. 20-139.1. Instead, the State must provide a proper foundation for the introduction of such results, including demonstrating their reliability.
The Drdak court determined that the State established a proper foundation for introduction of hospital blood test results by showing, among other facts, that “the hospital’s blood test was performed less than an hour after the defendant’s car crashed into the tree, that an experienced phlebotomist withdrew the blood sample under routine procedure pursuant to the doctor’s orders, and that a trained laboratory technician analyzed the blood sample using a Dupont Automatic Clinical Analyzer which was capable of testing either whole blood or serum.” Id. at 607. The court of appeals in State v. Mac Cardwell, 133 N.C. App. 496 (1999), likewise concluded that the trial court, in denying defendant’s motion to suppress evidence of hospital blood test results in an impaired driving trial, did not abuse its discretion in determining that the Dupont ACA Star Analyzer (“Analyzer”) used by the hospital to measure the defendant’s alcohol concentration was a “reliable scientific method of proof.” Id. at 506. The Mac Cardwell court further noted that the trial court properly allowed the defendant to present evidence to the jury attacking the reliability of the Analyzer and defendant’s results. Id. at 507.
Hospital laboratories sometimes calculate a patient’s plasma-alcohol concentration rather than the alcohol concentration in whole blood. To prove a specific alcohol concentration based on such results, the State must provide testimony from an expert capable of converting the results to grams of alcohol per 100 milliliters of blood in order to prove that the defendant had a specific alcohol concentration. See G.S. 20-4.01(1b) (requiring that the concentration of alcohol be expressed either as: “a. Grams of alcohol per 100 milliliters of blood; or b. Grams of alcohol per 210 liters of breath.”). The Mac Cardwell court held that the trial court did not abuse its discretion in finding the conversion ratio of 1 to 1.18 utilized by a forensic chemist at the SBI laboratory reliable. 133 N.C. App. at 506-07. As it had with respect to the test results, the court noted the propriety of permitting the defendant to present evidence attacking the conversion ratio used by the State. Id. at 507.
Have you litigated a case involving the introduction of hospital blood test results? Was there a battle of the experts? Did the court adopt the 1 to 1.18 ratio or some other formula? Please share your thoughts on these and any other issues related to this post.
Stan Speedy is charged with impaired driving. He has filed a motion to suppress evidence of blood test results based on a violation of his Fourth Amendment and his statutory rights under Chapter 20. At the suppression hearing, a sheriff’s deputy testifies to the following facts:
At 10 p.m. on the evening of May 1, 2010, I responded to a report of a single-car accident on Highway 411 about 2 miles outside of the Tarheel town limits. Another driver called 911 when he came upon the scene of the accident. By the time I arrived, EMTs had placed defendant on a gurney and were putting him in the back of an ambulance. They took defendant to Tarheel Regional Medical Center. I talked to the driver who had called 911 and I examined the scene. I saw an open bottle of brown liquor on the floorboard of the car. When another deputy arrived on the scene, I left for the hospital. I spoke to Speedy there while he still was strapped to a gurney. He smelled strongly of alcohol. I read Speedy the notice of implied consent rights and placed a copy of the rights on his chest. I told him I was going to charge him with impaired driving. I asked Speedy to let me draw blood and he responded, in pretty slurred speech: “Whatever.” I asked a nurse to withdraw Speedy’s blood. She did so, and I sent it off to the SBI the next day. The next morning I went to Speedy’s home to serve him with the citation I prepared after I left the hospital. Speedy did not answer the door, so I left a note asking him to come to the sheriff’s department between 3 and 4 p.m. He came by the sheriff’s department around 4 p.m., and I handed him the citation charging him with impaired driving.
How should the judge rule on the motion to suppress?
While the withdrawal of Speedy’s blood at the law enforcement officer’s direction was a search within the meaning of the Fourth Amendment, the resulting search appears to satisfy the exigency exception and reasonableness requirements of this constitutional provision. The officer had probable cause to arrest Speedy and charge him with driving while impaired. See, e.g., Steinkrause v. Tatum, 689 S.E.2d 379, 382 (2009) (finding probable cause based upon one-car accident and the driver’s odor of alcohol). And the exigency created by the dissipation of alcohol excuses the need for a warrant on facts such as these where the defendant already has been transported to the hospital for treatment. See Schmerber v. California, 384 U.S. 757 (1956). Moreover, the search is reasonable as the blood was drawn by trained medical personnel in a hospital environment. Id. at 771. The remaining question is whether the blood draw complied with the implied consent procedures set forth in Chapter 20, and, if not, whether suppression is the appropriate remedy.
G.S. 20-16.2 authorizes the obtaining of a chemical analysis from a person who is “charged with an implied-consent offense,” which occurs when a person is arrested for such an offense or criminal process has been issued, after such a person is informed of his or her implied consent rights, including the right to refuse testing. Though Speedy was informed of his implied consent rights, he had not been arrested or charged at the time the deputy requested that he consent to the test and ordered that his blood be drawn.
Notably, the requirement that a person be charged, notified of his implied consent rights, and requested to submit to a chemical analysis does not apply if the defendant is unconscious or otherwise in a condition that makes the person incapable of refusing so long as the law enforcement officer has reasonable grounds to believe the person has committed an implied-consent offense. See G.S. 20-16.2(b). In considering the constitutionality of this exception for unconscious defendants, the court in State v. Hollingsworth, 77 N.C. App. 36 (1985), noted that “[t]he formality of arrest helps insure that the police will not arbitrarily invade an individual’s privacy, it sharply delineates the moment at which probable cause is determined, and it triggers certain responsibilities of the arresting officer and certain rights of the accused, e.g., Miranda rights.” Id. at 43. Hollingsworth held that this argument lost force when applied to the “delirious defendant,” who could not appreciate the seriousness of the action. Id. at 43-44. Thus, Hollingsworth held that a blood alcohol test performed on blood seized from unconscious defendant at the direction of a law enforcement officer who had probable cause to believe that the defendant had committed an implied-consent offense did not violate the defendant’s Fourth Amendment rights.
In considering whether the version of G.S. 20-16.2 then in effect required an arrest before testing of an unconscious defendant, Hollingsworth found “strong support . . . for the proposition that the Legislature’s intended focus was upon an officer’s having ‘reasonable grounds’ to suspect commission of an ‘implied consent’ offense,” rather than that the unconscious person be arrested. Hollingsworth relied in part on State v. Eubanks, 283 N.C. 556 (1973), a case in which the state supreme court held that the exclusion of the defendant’s breath test results was not required on the basis that the test was performed pursuant to an arrest that was constitutionally valid but illegal for the officer’s failure to first obtain an arrest warrant.
North Carolina’s appellate courts have not considered whether the failure to arrest the defendant before administration of a chemical analysis requires suppression of the results. One could argue that under the rationale employed by courts to deal with other statutory violations related to administration of a chemical analysis (discussed in this post), suppression of the test results is the appropriate remedy. A contrary argument is that the failure to arrest the defendant is not a basis for suppression as the officer’s articulated probable cause to support the arrest functions as a proxy for a formalized arrest.
If you’ve litigated this issue, let us know the outcome in your case.
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.