State v. Tew

Sep 19, 1989

No. 888SC1324

Reporters:: , ,
Before:: Arnold

Lead Opinion

ARNOLD, Judge.

Thе procedures governing the admissibility and performance оf a breath test are contained in N.C.G.S. § 20-139.1. The relevant portion of this statute provides:

(b) . . . A chemical analysis, tо be valid, must be performed in accordance with the provisions of this section. The chemical analysis must be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Human Resources for that type of chemiсal analysis. The Commission for Health Services is authorized to аdopt regulations approving satisfactory methods or techniques for performing chemical analyses ....

In addition, subsection (b3) provides:

By January 1, 1985, the rеgulations of the Commission for Health Services governing the administration of chemical analyses ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the breath must require the tеsting of at least duplicate sequential breath samples. Those regulations must provide:

‡ ‡ ‡ H*

(2) That the test results may only be used to prove a person’s particular alcohol concentration if:

a. The pair of readings employed are from consecutively administered tests; and

b. The readings do not differ from each other by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an alcohol concentration greater than 0.02.

N.C.G.S. § 20-139.10)3).

The Commission for Health Services has published operating procedures for conducting breathalyzer tests рursuant to N.C.G.S. § 20-139.1(b). Regulation 7B.0354 provides in part:

(a) When performing chemical analyses of breаth under the authority of G.S. 20-139.1 and the provisions of these rules, chemiсal analysts shall report alcohol concentrations on the basis of grams of alcohol per 210 liters of breath. All rеsults *636shall be reported to hundredths. Any result between hundredths ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍shall be reрorted to the next lower hundredth.

N.C. Admin. Code tit. 10, r. 7B.0354 (eff. Feb. 1987).

Following the regulations of the Cоmmission for Health Services, Trooper Booth rounded the first tеst results down to .22. He then recorded the two readings as .22 and .20 (by rounding down the first reading, the two results were within .02 of each other which is requirеd by N.C.G.S. § 20-139.1(b3)).

The readings from defendant’s two breath tests differed from eaсh other by an alcohol concentration greater thаn 0.02. Defendant’s motion to suppress the test results should have been granted.

Reversed.

Judge BECTON concurs. Judge COZORT dissents.

Dissenting Opinion

Judge COZORT

dissenting.

I do not disagree with the majority’s literal interpretation of the specific statute at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍issue here. Nonetheless, I bеlieve that, when this specific statute is considered in pari materia with the rest of the statutes on procedures governing chemical analyses, the General Assembly did not intend for the evidence of breаthalyzer readings to be suppressed when the “rounded down” readings are within .02. Cf. Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771 (1989).

N.C. Gen. Stat. § 20-139.1 permits the admission in evidence of the lower reading of a pair of consecutively administered tests. The purpose underlying the requirement of at least two tests is to assure thе accuracy of the readings. State v. White, 84 N.C. App. 111, 114, 351 S.E.2d 828, 830, appeal dismissed, 319 N.C. 409, 354 S.E.2d 887 (1987). I believe that purpose is fulfilled when the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“rounded down” readings are within .02 of each other.

In thе case below, the first reading was between .22 and .23 and the second was .20.1 do not believe those readings demonstrate unreliability of the machine. I also take judicial notice that thesе readings indicate an excessive consumption of alсohol. A purely technical reading of the statute works to suppress evidence of this excessive consumption. I vote to affirm the trial court’s ruling denying the motion to suppress.