Whose Burden is it?

The State’s failure to accord a defendant his or her statutory implied consent rights as set forth in G.S. 20-16.2 may render the results of any ensuing breath test inadmissible. When a defendant moves to suppress breath test results based on such a violation, questions frequently arise regarding whether the State bears the burden of demonstrating compliance with implied consent procedures or whether the defendant bears the burden of proving a statutory violation. The answer, as with so many things, depends on the nature of the alleged violation.  Here’s my take on how the burdens play out in various contexts.

Notification of Rights. The State bears the burden of establishing that the defendant was notified of his or her statutory implied consent rights pursuant G.S. 20-16.2. See State v. Shadding, 17 N.C. App. 279 (1973) (holding that State’s failure to establish that the defendant was advised of his statutory rights following defendant’s objection to the admission of his breath test results on the basis that he had not been accorded those rights rendered the results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (failure of State to establish that officer advised defendant of his right to have an additional test administered by a qualified person of his own choosing rendered breath test result inadmissible).

Right to Delay Testing for 30 minutes.  Among the implied consent rights is the right to call an attorney for advice and to select a witness to view the testing procedures. G.S. 20-16.2(a)(6) provides that testing may be delayed for 30 minutes to allow the defendant to exercise these rights. To be entitled to the delay, the defendant must affirmatively indicate his intention to call a lawyer or have a witness present. See McDaniel v. Div. of Motor Vehicles, 96 N.C. App. 495, 497 (1989). A defendant who fails to so affirmatively indicate waives his statutory right to delay the test.  Id.

Case law does not make clear which party bears the burden of establishing that the defendant exercised his intention to contact an attorney or witness in the context of a motion to suppress for denial of that right. Given that the defendant must affirmatively indicate this intention to trigger the delay, perhaps the defendant moving for suppression likewise bears the burden of proving that he or she was entitled to, and not afforded, the delay. On the other hand, given that the defendant has a statutory right to the delay, perhaps the State must prove, in circumstances in which the test was not delayed for 30 minutes, that the defendant was afforded that right and that the defendant did not affirmatively indicate any desire to contact an attorney or witness.

In any event, it appears that the defendant must show that a witness arrived within the 30 minutes to be entitled to suppression of the breath test results for failure to delay testing. 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. Thus, it may not matter much who bears the burden of proving the defendant was entitled to a delay, since the defendant bears the burden of proving prejudice—or at least consequences—resulting from the failure to delay.

Right to Witness. Denial of the defendant’s right to have a witness view the testing requires 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.

A witness who has been selected to observe the testing procedures must arrive within the statutorily allotted 30 minutes and must make reasonable efforts to gain access to the defendant in order to view the test. Hatley, 190 N.C. App. at 642-43 (citing  State v. Ferguson, 90 N.C. App. 513 (1988)). Because these facts are typically in the possession of the defendant, it seems likely that the defendant bears the burden of proving their existence.