DWI and Sequential Breath Tests

North Carolina statute requires that breath tests in connection with impaired driving offenses be given at least two times and sequentially. The applicable statute, G.S. 20-139.1(b3), provides that

Sequential Breath Tests Required. - The methods governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. The 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. Only the lower of the two test results of the consecutively administered tests can be used to prove a particular alcohol concentration. A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c).

A person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.

The court of appeals has looked at several cases which interpret the sequential breath requirement. In the 2009 case State v. Shockley, an off-duty police officer came upon the defendant’s car stopped at a green light. After seeing that the car did not move for an entire cycle of the traffic light, the officer called other officers to investigate. The on-duty officers found the defendant asleep in his car, with the engine running and the brake lights lit. Before the officers woke the defendant, they put the car in park, turned off the engine and removed the keys from the ignition. There was a strong smell of alcohol coming from the car. The officers were only able to wake the defendant by shaking him and talking to him loudly.

When the defendant exited the car to perform field sobriety tests, he had to balance himself on the car. There was a strong smell of alcohol coming from the defendant’s person as well. The defendant could not produce his license when the officers requested it. As a result of the defendant’s behavior, the officers arrested the defendant for dwi without conducting field sobriety tests.

The officers took the defendant to jail to conduct a breathalyzer test. At 6:05 a.m., the defendant provided his first breath sample which registered 0.16. When the defendant attempted to give his second breath sample, he turned his head to slightly the side and allowed air to escape so that the force of the air was not strong enough for the machine to receive an adequate sample. The defendant claimed that he was unable to give another sample because blowing aggravated an exposed nerve on his tooth.

After fifteen minutes, the officer had the defendant attempt to give another sample. At 6:23 a.m., the defendant provided his third breath sample which registered 0.15. The officer attempted to obtain a fourth breath sample from the defendant, but again the defendant turned his head slightly and the machine did not receive an adequate sample. The officer did not ask the defendant to blow again, instead registering a refusal because he thought that the defendant willfully tried not to provide a sufficient sample on the second and fourth attempts.

At trial, the 0.15 reading was admitted, over the defendant’s objections and the defendant was convicted of DWI. The admissibility of the breath samples was governed by the previous version of G.S. 20-139.1(b3) which provided in part:

(b3) Sequential Breath Tests Required. — By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. Those regulations must provide:

. . .

(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.

(3) That when a pair of analyses meets the requirements of subdivision (2), 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.

A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c).

A person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.

The court relied on a case, State v. White, from 1987, which involved similar facts. In White, the defendant made two unsuccessful attempts to provide breath samples in between the two adequate samples. The two adequate samples were obtained eleven minutes apart. The court in White stated that

Because these readings were taken from "consecutively administered tests" on adequate breath samples given within eleven minutes of one another, and because the readings are within .01 of one another, the statute requiring sequential testing was, in our view, complied with in this case. To hold otherwise would allow an accused to thwart the testing process by deliberately giving insufficient breath samples.

The court of appeals in Shockley rejected the defendant’s argument that the facts of White were distinguishable. Although the time in between the two adequate samples was slightly longer in Shockley than in White, the court refused to “create a distinction (between consecutive and non-consecutive tests) based on nothing more than a difference of six minutes.”

Since Shockley and White were decided, the applicable statute has been revised. However, the outcome of the cases would most likely be the same under the current statute. The current statute requires that “at least duplicate sequential breath samples” be tested and provides 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.” An insufficient breath sample from a driver would not provide a “test result” or alcohol concentration which could be compared.

In fact, in 2013, the court of appeals refused to distinguish the case State v. Cathcart from White and Shockley. In Cathcart, the defendant provided his first sample. On his second attempt, the defendant did not blow hard enough resulting in an insufficient breath sample. His third attempt was eleven minutes after his first and differed by 0.01 from the first test result. The court held that the test results were admissible under the wording of the current statute.

If you have been arrested for DWI, visit www.rflaw.net for legal help.