State v. Townsend and the Alco-Sensor Test

On Tuesday, the North Carolina Court of Appeals issued an opinion in the case State v. Townsend. Although the court of appeals had originally issued an opinion in the case back in August (discussed here, here and here), that opinion was subsequently withdrawn and replaced with the one issued Tuesday. The content of the opinion discussed in the earlier posts wasn’t changed, but the court did add a section addressing the defendant’s argument that the trial court’s error of introducing the numerical results of his alco-sensor test in a pre-trial hearing entitled him to a new trial. The court of appeals concluded that this error did not prevent the defendant from obtaining a fair and impartial verdict because the numerical results were never introduced before the jury and there was sufficient evidence to establish probable cause without the alco-sensor results.

First, let’s briefly review the facts of the case. In Townsend, the defendant was stopped at a dwi checkpoint. The officer who stopped the defendant noticed an odor of alcohol coming from the defendant and that the defendant had red, bloodshot eyes. The officer administered field sobriety tests and two alco-sensor tests. The defendant showed signs of impairment on the field sobriety tests and the alco-sensor tests both showed positive results for alcohol. The defendant was then arrested for DWI, and taken to a mobile Breath Alcohol Testing unit at the checkpoint where he blew a 0.09 and 0.10.

Part of the officer’s paperwork submitted at a pre-trial hearing to show probable cause included the numerical result of the defendant’s alco-sensor tests. The officer’s arrest affidavit also included how the officer encountered the defendant, the officer’s observations of the defendant and the defendant’s performance on the field sobriety tests administered. The defendant argued that allowing the numerical result of the alco-sensor tests into evidence was error and entitled to him a new trial.

The court of appeals agreed with the defendant that the “admission of the actual numerical results of defendant’s alco-sensor test was error, as only ‘a positive or negative result on an alcohol screen test’ may be admissible in court.” In making this determination, the court looked at North Carolina statute. G.S. 20-16.3(a) governs when an officer may give someone an alco-sensor test. It states that

A law-enforcement officer may require the driver of a vehicle to submit to an alcohol screening test within a relevant time after the driving if the officer has:

(1)    Reasonable grounds to believe that the driver has consumed alcohol and has:

a.     Committed a moving traffic violation; or

b.     Been involved in an accident or collision; or

(2)    An articulable and reasonable suspicion that the driver has committed an implied-consent offense under G.S. 20-16.2, and the driver has been lawfully stopped for a driver's license check or otherwise lawfully stopped or lawfully encountered by the officer in the course of the performance of the officer's duties.

Requiring a driver to submit to an alcohol screening test in accordance with this section does not in itself constitute an arrest.

Under the facts in Townsend, the defendant had not committed a moving traffic violation or been involved in an accident under subsection (1). However, under subsection (2), the defendant had been lawfully stopped at the checkpoint and the officer had reasonable suspicion that the defendant had committed an implied-consent offense of impaired driving because he noticed an odor of alcohol coming from the defendant and that the defendant had red, bloodshot eyes.

Once the officer has administered the alco-sensor test, however, he is limited as to how he uses the results of the test. Subsection (d) of G.S. 20-16.3 states that

The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result, or a driver's refusal to submit may be used by a law-enforcement officer, is admissible in a court, or may also be used by an administrative agency in determining if there are reasonable grounds for believing:

(1)    That the driver has committed an implied-consent offense under G.S. 20-16.2; and

(2)    That the driver had consumed alcohol and that the driver had in his or her body previously consumed alcohol, but not to prove a particular alcohol concentration. Negative results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol.

In Townsend, the arresting officer included the numerical results, not just the positive result, of the defendant’s alco-sensor test in his arrest affidavit which he submitted at the probable cause hearing. The court of appeals deemed this statutory violation as a “technical violation of statute” which did not entitle the defendant to a new trial. The court reasoned that the numerical results were never introduced into evidence before the jury and that even without the results of the alco-sensor test, there was sufficient evidence to establish probable cause. At trial, the arresting officer only mentioned that he administered the alco-sensor tests to the defendant as part of his preliminary investigation. He did not mention the alco-sensor test at all when he testified as to how he formed his opinion that the defendant was impaired, instead stating that he formed his opinion during conversation with the defendant, by making physical observation’s of the defendant and from administering the field sobriety tests.

Yesterday, we discussed the alco-sensor test in the court of appeals case State v. Overocker. In that case, the court held that the arresting officer did not have probable cause to arrest the defendant for DWI when the defendant was involved in a minor accident which was not his fault and had evidence of alcohol consumption, including the defendant’s admission of drinking and a positive alco-sensor result. The reasoning in Overocker and Townsend is consistent in that the alco-sensor test can be used to show that the defendant consumed alcohol but a positive result will not establish probable cause without other evidence of impairment. In Townsend, the other evidence of impairment included signs of impairment on the field sobriety tests, a moderate odor of alcohol coming from the defendant and red, bloodshot eyes, so a positive alco-sensor result contributed to the probable cause. In Overocker, the defendant did not exhibit any signs of impairment on the field sobriety tests and had only a light odor of alcohol. Therefore, a positive result on the alco-sensor was not enough to establish probable cause.

If you have been arrested for DWI, contact an attorney at Rosensteel Fleishman Car Accident & Injury Lawyers (704) 714-1450, to discuss your options.