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North Carolina v. Garvick6/5/1990
Defendant brings forward five assignments of error. In his first assignment of error, defendant contends that the trial court erred by denying his motion to suppress the results of the breathalyzer test. Defendant's second assignment of error is that the trial court erred in denying expert status to defendant's witness, Jonathan Pharr. Defendant's third assignment of error is that the trial court erred by requiring defendant's counsel to reveal the purpose of his cross-examination in the presence of the State's witness. In his fourth assignment of error, defendant argues that the trial court erred by instructing the jury on the offense of driving while impaired and in failing to provide the jury with defendant's requested two-pronged verdict. Defendant's fifth assignment of error is that the trial court erred in denying his requested jury instructions.
Defendant first argues that his motion to suppress the results of the breathalyzer test should have been granted because the testing regulations adopted by the Commission are both invalid and unconstitutional. In support of this argument, defendant contends that the requirement for duplicate sequential breath samples in G.S. 20-139.1(b3) and the time requirement for the second and subsequent samples in G.S. 20-139.1(b3)(1) have not been satisfied in the regulations.
General Statutes Chapter 20, Article 3, provides as follows:
Sequential Breath Tests Required. -- By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. Those regulations must provide:
(1) A specification as to the minimum observation period before collection of the first breath sample and the time requirements as to collection of second and subsequent samples.
G.S. 20-139.1(b3)(1). With regard to duplicate sequential breath samples, the Commission adopted ten requirements "to be followed in using the Breathalyzer, Models 900 and 900A." N.C. Admin. Code tit. 10, r. 7B.0336 (herein "Regulation .0336"). Requirement (1), steps (a) through (k), provides for the verification of instrumental calibration and the replacement and testing of the ampul used in the breathalyzer. Requirements (2) through (10) set out the procedure for the remainder of the test. The guidelines for determining when to perform each requirement read as follows: "If the alcohol concentration is 0.19 or less, repeat steps (2) through (10) as soon as feasible. If the alcohol concentration is 0.20 or more, repeat steps (1) through (10) as soon as feasible."
Defendant argues that the tests required by the regulations do not give a person in his position with a test result of 0.19 or less the benefit of a duplicate test because under Regulation .0336, the first test is a complete test, requiring the breathalyzer operator to follow requirements (1) through (10), whereas the second test requires only requirements (2) through (10), and is, therefore, not a complete test.
Defendant contends that requirement (1), which provides for verifying the calibration of the instrument and testing the ampul, is the primary safeguard to insure that the instrument is working properly and that the legislature intended this dual protection to guard against human or mechanical error. Defendant argues that if the operator makes a mistake in performing requirement (1) on the first test, and is not required to repeat requirement (1) on the second test, the mistake would affect both tests; and neither the operato
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