Amendments to Notice and Demand Provisions for DWI Cases

No legislative session would be complete without amendments to the state’s DWI laws. The 2016 short session upholds this tradition by amending the procedures that govern the admissibility of chemical analyses in impaired driving trials in district and superior court.

Background. G.S. 20-139.1(a) provides that evidence of a person’s alcohol concentration or the presence of any other impairing substance in the person’s body as shown by a chemical analysis is admissible at a trial for any implied consent offense. Chemical analysis is a term of art. It means a test “of the breath, blood, or other bodily fluid or substance of a person to determine the person’s alcohol concentration or the presence of an impairing substance” that is “performed in accordance with G.S. 20-139.1.” G.S. 20-4.01(3a).

G.S. 20-139.1 requires that breath tests be (1) performed by a person with a DHHS permit on a breath-testing instrument that has been properly maintained, (2) that duplicate sequential breath samples be tested, and (3) that the results from those samples not differ by more than 0.02. Blood or urine withdrawn from a defendant in an implied consent case must be analyzed by an approved laboratory for the results to be admissible under G.S. 20-139.1.

Admitting the analysis without the analyst. Two subsections of G.S. 20-139.1 permit the results of a chemical analysis or a chemical analyst’s affidavit to be admitted into evidence without testimony from the analyst. A third permits the introduction of chain of custody statements without their signatories. These provisions often are referred to as notice and demand provisions pursuant to which a defendant’s right to confront witnesses for the State is deemed to be waived if not timely asserted.

Notice and demand for analysis of blood or urine. G.S. 20-139.1(c1) states that the certified results of a chemical analysis of a person’s blood or urine may be admitted in district or superior court if the State notifies the defendant at least 15 business days before the proceeding at which the evidence will be used that it intends to introduce the report and provides a copy of the report to the defendant. The defendant may object to introduction of the report without testimony from the certifying analyst by filing a written objection with the court, with a copy to the State, at least five business days before the proceeding. If the defendant fails to file a written objection, the objection is deemed waived and the report is admissible without the testimony of the analyst.

Statements regarding the chain of custody for blood or urine may be admitted under a similar rule. G.S. 20-139.1(c3)(3) permits the State to notify the defendant at least 15 business days before the proceeding at which a chain of custody statement would be used of its intent to introduce it. The State must provide the defendant with a copy of the statement at this time.  If the defendant does not file a written objection at least five business days before the proceeding, with a copy to the State, the defendant’s objection is deemed waived.

Notice and demand for breath test results. G.S. 20-139.1(e2) states that an affidavit from a chemical analyst—the document on which breath test results are reported–may be admitted in district court if the State notifies the defendant at least 15 business days before the proceeding at which the affidavit would be used of its intent to introduce the affidavit and provides a copy of the affidavit to the defendant. The defendant may object to the introduction of the affidavit without testimony from its author by filing a written objection with the court, with a copy to the State, at least five business days before the proceeding. If the defendant fails to file a written objection, the objection is deemed waived, and the affidavit is admissible without testimony from the affiant.

What’s new. S.L. 2016-10 (H 357) amends G.S. 20-139.1 in two significant respects.  First, it requires that the State provide the laboratory analysis of blood or urine to the defendant within 15 business days of receiving the report in order to avail itself of the notice and demand procedures in G.S. 20-139.1(c1). It likewise requires the State to provide the chain of custody statement to the defendant within 15 business days of receiving it to utilize G.S. 20-139.1(c3)(3) and the chemical analyst’s affidavit to the defendant within 15 business days of receipt to rely on the notice and demand procedures in G.S. 20-139.1(e2).

Second, the session law amends G.S. 20-139.1 to provide that the written objection filed by the defendant under (c1), (c3)(3), or (e2) or the defendant’s failure to file a written objection under those provisions remains effective at any subsequent calendaring of the proceeding. Thus, under the amended provisions, a defendant may not demand the appearance of an analyst or custodian for a new trial date if he or she did not demand the witness’s appearance within five business days of the first proceeding for which the State provided notice.

S.L. 2016-10 is effective October 1, 2016 and applies to trials commencing on or after that date.

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