Breath Tests in Charlotte DWI Investigations

Defense #3: DHHS' DWI Breath Test Rules (North Carolina G.S. 20-139.1(b)(1))

In addition to being performed by a LCA, per N.C.G.S. 20-139.1 (b)(1), your DWI breath test must have been performed in accordance with the rules of the DHHS to be admissible during your Charlotte DWI trial. DHHS’s breath alcohol test regulations can be found in Title 10A, Subchapter 41B, Section .0300 of the North Carolina Administrative Code (10A NCAC 41B). Let’s look at some of the specifics of these rules as they apply to the DWI breath testing instruments, the Intoxilyzer 5000 and Intoximeter EC/IR II.

Intoximeter EC/IR II

There are operational procedures that must be followed for your DWI breath test results – your alcohol concentration – to be admitted into evidence during your Charlotte DWI trial. These operational procedures for Charlotte’s DWI breath-testing instruments are set forth in the following statute.

• Intoximeter EC/IR II – 10A NCAC 41B .0322

The two most common issues that arise with the operational procedures of these various DWI testing instruments concern the observation period and sequential breath tests requirements. Each of these will be discussed below.

DWI Observation Period

Of the operational procedures listed in the links above, the most common error the LCA makes during the Charlotte DWI breath test process concerns the observation period. 10A NCAC 41B .0101(6) defines the observation period as the 15-minute period immediately prior to the collection of a breath sample where the LCA observes the person who is to submit to an approved DWI breath-testing instrument. The purpose of the observation period is to ensure that the person to be tested has not

• Ingested alcohol or other fluids
• Regurgitated
• Vomited
• Eaten
• Smoked

The fact that you had a dental device or oral jewelry during your DWI breath test is irrelevant. However, if the LCA fails to continuously observe you for the entire 15-minute observation period, the results of your DWI breath test should not be admitted into evidence during your DWI trial.

Sequential DWI Breath Tests

The DWI breath test operational procedures listed in the links above also indicate that sequential DWI breath tests must be given. This is reinforced in N.C.G.S. 20-139.1(b3). Specifically, this statute states that all breath samples are admissible at your DWI trial 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. If the alcohol concentrations differ by more than 0.02, a third [or fourth] breath sample shall be collected. In any case, only the lower of the test results of the two consecutively administered tests can be used to prove your alcohol concentration.

Basically, this statute requires that two consecutive DWI breath samples be taken. If the alcohol concentration of those DWI breath samples does not differ by more than 0.02, the lower of the two results is admissible in evidence to prove that lower alcohol concentration. Thus, if your first DWI breath sample was 0.15 and your second DWI breath sample was 0.13, the 0.13 DWI breath sample would be allowed into evidence to prove that your alcohol concentration was 0.13. However, if your first DWI breath sample was 0.15 and your second DWI breath sample was 0.12, neither DWI breath sample would be admissible in evidence because there is more than a 0.02 difference in alcohol concentrations; specifically, a 0.03 difference. If this was the case, the LCA would be required to collect a third DWI breath sample. To be admissible, the third DWI sample would need to be within 0.02 of the 0.12 DWI breath sample. If it was, the lower of the second and third DWI breath samples would be admissible to prove that alcohol concentration.

If the LCA fails to collect two consecutive DWI breath samples with alcohol concentrations within 0.02 of each other, the results of your DWI breath test are not admissible in evidence during your Charlotte DWI trial. However, it is important to realize that if you refuse to give a second or subsequent DWI breath sample, this constitutes a refusal under other laws. Such a refusal makes the result of the first DWI sample admissible in evidence at your DWI trial.

Defense #4: Preventive Maintenance (North Carolina G.S. 20-139.1(b2))

Preventive maintenance of the various Charlotte DWI breath-testing instruments, the Intoxilyzer 5000 and Intoximeter EC/IR II, must be performed by the DHHS in accordance with their rules and regulations. Such preventive maintenance is performed to ensure that the DWI breath-testing instruments are functioning properly and accurately. If preventive maintenance is not performed by DHHS as prescribed, the results of your DWI breath test is inadmissible in your DWI trial.

The required preventive maintenance procedures for Charlotte’s DWI breath-testing instruments are set forth in the following statute.

• Intoximeter EC/IR II – 10A NCAC 41B .0323

Whether your DWI breath test was performed on the Intoxilyzer 5000 or the Intoximeter EC/IR II, it is important to ensure that the DHHS performed the preventive maintenance procedures above within the necessary time limits; that being at least once every four months or after 125 Alcoholic Breath Simulator tests, whichever occurs first.

You can use the DHHS’s website to find out if preventive maintenance was performed on your DWI breath-testing instrument within the required time limits. To determine this, you will need information from two documents that you should have received as part of your DWI paperwork when you were arrested for DWI. This includes your:

1. Affidavit and Revocation Report of Law Enforcement Officer/Chemical Analyst
2. DWI Breath Test Ticket [looks like a receipt]

Once you have these documents in hand, follow the instructions below:

1. On your Affidavit and Revocation Report of Law Enforcement Officer/Chemical Analyst, find the date listed in line #11
2. Using this link, click the month and year that you found in step one
3. You will now see a list of preventive maintenance records in alphabetical order by county; if you were charged with DWI in Charlotte, scroll down to the records for Mecklenburg County
4. On your DWI Breath Test Ticket, find the Serial Number associated with your DWI breath-testing instrument
5. In the link you previously opened, use the Serial Number you found on your DWI Breath Test Ticket to find the preventive maintenance record for your DWI breath-testing instrument
6. Towards the bottom on the preventive maintenance record, find out if the date is within four months of when your DWI breath test was administered.

If preventive maintenance was not performed on your DWI breath-testing instrument by DHHS within the required time limits, N.C.G.S. 20-139.1(b2) prohibits the results of your DWI breath test from being admitted in evidence. However, for this to be the case, at your DWI hearing you must

1. Object to the introduction into evidence of the results of your DWI breath test; and
2. Demonstrate that preventive maintenance procedures were not performed on your DWI breath-testing instrument within the time limits prescribed by the DHHS’s rules and regulations.

Defense #5: Denied Access to a Witness (North Carolina G.S. 20-16.2(a)(6))

As mentioned earlier in this article, you must be advised of certain rights before you are required to submit to a Charlotte DWI breath test. One such right is the right to have a witness present to observe the administration of your DWI breath test. Specifically, N.C.G.S. 20-16.2(a)(6) states:

You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes for longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes even if you have not contacted an attorney or your witness has not arrived.

The purpose of this 30-minute delay is to allow you a reasonable, but limited, amount of time to procure the presence of a witness. If you request that a witness observe your DWI breath test, but are denied access to such witness, this constitutes a flagrant violation of your constitutional rights and requires that the DWI charge against you be dismissed. Let’s look at the specific requirements of this statute.

First, after being arrested for DWI in Charlotte, you must choose to have a witness present under N.C.G.S. 20-16.2(a), the law cited above. The police are not required to delay testing unless you explicitly exercise this right.

Second, and related to the first point, the police must generally have knowledge that you wish for a witness to be present to observe your DWI breath test. This can be accomplished by making telephone contact with your selected witness and asking him or her to come witness the administration of your DWI breath test in the presence of the arresting officer. If you do call a witness, this, and the time you did so, should be noted on a form titled “Rights of Person Requested to Submit to a Chemical Analysis to Determine Alcohol Concentration or Presence of an Impairing Substance.”

Third, your witness must arrive within the 30-minute time limit and make reasonable efforts to make his or her presence known. Even if you do exercise your right to have a witness present to observe your DWI breath test, the test does not have to be delayed more than 30 minutes. This means your DWI breath test can, and in all likeliness, will, be administered after 30 minutes regardless of whether your requested witness has arrived or not.