Observation Period Prior to DWI Breath Test

Yesterday’s post examined the gross impairment discussion in the North Carolina Court of Appeals’ opinion State v. Roberts, issued Tuesday. However, this was not the only argument raised by the defendant in Roberts. Today, we will look at the argument the defendant made regarding the failure of the trooper to meet the observation period requirement prior to administering the defendant’s breath test.

In Roberts, the defendant was arrested for dwi after being stopped for twice crossing the fog line and running a red light. He was then taken to the jail for chemical testing. The trooper advised the defendant of his rights relating to the testing at 9:22 p.m. and then began the observation period required by statute to make sure that the defendant “did not put anything in his mouth, regurgitate, vomit, smoke, eat, or drink.” At 9:33 p.m., the defendant requested that he be able to call someone to try to obtain a witness for the chemical testing, which was his right under North Carolina statute. A little after that, the trooper left the room with the defendant so the defendant could use the restroom. After the trooper and the defendant returned to the testing room, the defendant was handcuffed because he put his fingers in his mouth. This act also caused a new observation period to begin at 9:52 p.m.

The defendant and the trooper left the testing room at 10:06 p.m. to see if the defendant’s witness had arrived. During this time, the defendant twice wiped his mouth on his jacket. When the trooper and defendant returned to the testing room, the defendant submitted to three breath tests, which showed he had a BAC of 0.19.

At trial, the defendant was found guilty of impaired driving. The jury also found the existence of the gross impairment aggravating factor (a BAC of 0.15 or greater), which enhanced the defendant’s sentence.

On appeal, the defendant argued that the breath test results should not be admissible because the trooper did not comply with the fifteen minute “observation period” required by statute. G.S. 20-139.1(b)(1) requires that breath testing be “performed in accordance with the rules of the Department of Health and Human Services” in order to be admissible. 10A N.C.A.C. 41B.0322(2) governs breath testing and requires that the analyst ensure that the applicable “observation period requirements have been met.” The “observation period” is defined by 10 N.C.A.C. 41B.0101(6) as

a period during which a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen. The chemical analyst may observe while conducting the operational procedures in using a breath-testing instrument. Dental devices or oral jewelry need not be removed.

The court acknowledged that North Carolina case law requires the State to prove that it complied with this observation period requirement. The defendant argued that the trooper did not meet the requirement because he twice left the defendant alone, failed to observe the defendant wipe his mouth on his jacket and focused on unrelated activities during the period.

The court failed to find support for the defendant’s argument based on the facts found by the trial court. There was no evidence showing that the trooper twice left the defendant alone. The trooper “did acknowledge that there were ‘split second[s]’ when his eyes were not trained directly on Defendant and that there were times during which his ‘attention [was both] on [Defendant] and where [he was] going.’” Also, when the trooper left the testing room at 10:06 p.m. to check whether the defendant’s witness had arrived, he allowed the defendant to walk behind him and therefore did not see the defendant wipe his mouth on his jacket.

The defendant argued that the word “observe” should be defined as in the dictionary: “to watch carefully[,] especially with attention to details or behavior for the purpose of arriving at a judgment.” However, the court noted that the purpose of the observation period was important as well. The purpose of the observation period under the applicable regulations is to make sure that “a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” Therefore,

since the analyst is supposed to focus his or her observations on the extent, if any, to which any event that might affect the accuracy of the test has occurred, nothing in the relevant regulatory language requires the analyst to stare at the person to be tested in an unwavering manner for a fifteen minute period prior to the administration of the test.

The court found it particularly persuasive that the regulations had been amended in 2001 to allow one officer to observe multiple subjects at the same time. The court reasoned that if the defendant’s definition of “observe” were to be used, it would be impossible for one officer to observe more than one person at a time.

The court summarized the relevant evidence as follows: (1) the officer observed the defendant during a 21 minute period, (2) during this time the defendant did not “ingest[] alcohol or other fluids, regurgitate[], vomit[], eat[], or smoke[],” and (3) the trooper lost “direct sight” of the defendant for only “very brief intervals” to make sure that his rights to a witness were protected. Therefore, the court concluded that the trooper met the observation period requirement and the breath test results were admissible.

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