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State v. Myers4/4/1995
by the conduct of Officer Hester."
During the administration of a breathalyzer test, the person being tested has the right to "call an attorney and select a witness to view for him the testing procedures." N.C.G.S. § 20-16.2(a)(6) (1993). This statutory right may be waived by the defendant, see McDaniel v. Division of Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989) (defendant's failure to indicate desire to have a witness present is waiver), cert. denied, 326 N.C. 364, 389 S.E.2d 815 (1990); State v. Sykes, 285 N.C. 202, 208, 203 S.E.2d 849, 853 (1974) (express statement by defendant that he does not want a witness is waiver), but absent waiver, denial of this right requires suppression of the results of the breathalyzer test. See State v. Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57 (failure to advise defendant of statutory rights requires suppression of test results), cert. denied, 283 N.C. 108, 194 S.E.2d 636 (1973).
In this case the defendant unequivocally asked that his wife be permitted to observe the taking of the breathalyzer test. Hester's statement that "that might not be a good idea" was tantamount to a refusal of that request and Hester had no right to refuse the request. The right to choose a witness is a choice within the sole province of the defendant and unless there is some evidence that the witness would disrupt the taking of the test, the defendant has the right to have the witness of his choice present. In this case, there is no evidence that the defendant's wife would have disrupted the testing procedures. Furthermore, the fact that he later did take the breathalyzer, after he was first refused permission to have his wife witness the test, cannot be construed to be a waiver of his right to have a witness. Thus, the findings and evidence support a Conclusion contrary to that entered by the trial court, as the defendant was denied his right to have his wife witness the breathalyzer.
Accordingly, the trial court erred in admitting the results of the breathalyzer test at trial. Without the breathalyzer test results, the State's case rests solely upon the odor of alcohol Hester detected on defendant and defendant's bloodshot eyes and flushed face. In light of the scarcity of evidence remaining without the breathalyzer test, there is a reasonable possibility that a different result would have been reached without the results. See N.C.G.S. § 15A-1443(a) (1988). Thus, the admission of the results was prejudicial error requiring a new trial.
New trial.
Judges COZORT and LEWIS concur.
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