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State v. Cothran11/7/1995
1 blood-breath ratio may not accurately represent a particular individual's blood alcohol level." Brayman, 751 P.2d at 297; see Erwin § 21.01 ("A number of physiological factors, that have no effect on a direct blood analysis, can materially affect a breath test."). Because, however, our legislature has adopted a breath alcohol per se offense as an alternative method of committing a driving while impaired offense, it is immaterial whether the defendant is in fact impaired or whether his blood alcohol content is in excess of that permitted in the statutes. Cf. Dixon v. Peters, 63 N.C. App. 592, 601, 306 S.E.2d 477, 483 (1983) (General Assembly may legislate an objective standard where it is a rational way to correct a perceived problem and serves a legitimate State function). Accordingly, Woodford's excluded testimony that the defendant's Intoxilyzer reading did not accurately reflect his blood alcohol level is not admissible and the trial court correctly excluded this evidence. N.C.G.S. § 8C-1, Rules 402, 403 (1992) (only evidence tending to prove a fact in consequence is relevant and admissible). Breath test evidence is not, however, conclusive proof of the per se offense as the State must still establish the foundational requirements of the test, that the machine was in proper working order, that the reading is correct and that the officer is certified and competent to administer the test. The defendant does not contest these issues.
No error.
Chief Judge ARNOLD and Judge SMITH concur.
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