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North Carolina v. Bumgarner3/20/1990
Defendant contends that the charge against him must be dismissed based upon a flagrant violation of his rights to assistance in obtaining additional chemical analysis pursuant to the provisions of N.C. Gen. Stat. § 20-139.1(d) and the due process clause of the fourteenth amendment of the United States Constitution since no officer transported him to a hospital for the purpose of having a blood sample withdrawn. He also asserts a violation of his constitutional right to secure witnesses in his favor pursuant to article I, section 23 of the North Carolina Constitution by reason of the pretrial release restrictions placed upon him by the magistrate.
First we will examine defendant's contention that the law enforcement officers had a duty to transport him to a facility that would perform the additional test. A defendant who submits to chemical analysis is informed that he has a right to "have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer." N.C. Gen. Stat. § 20-16.2(a)(5). In order to make this right a reality, the General Assembly also provided as follows:
Right to Additional Test. -- A person who submits to a chemical analysis may have a qualified person of his own choosing administer an additional chemical test or tests, or have a qualified person withdraw a blood sample for later chemical testing by a qualified person of his own choosing. Any law-enforcement officer having in his charge any person who has submitted to a chemical analysis must assist the person in contacting someone to administer the additional testing or to withdraw blood, and must allow access to the person for that purpose. The failure or inability of the person who submitted to a chemical analysis to obtain any additional test or to withdraw blood does not preclude the admission of evidence relating to the chemical analysis. (Emphasis added).
N.C. Gen. Stat. § 20-139.1(d).
The General Assembly did not specifically delineate the required duties of law enforcement officers once the right to additional tests are asserted. Prior to the effective date of the Safe Roads Act in 1983, we had held the law only required that an arresting officer assist a defendant in contacting someone to administer the test and that providing transportation was not required. {PA}
Page 572} State v. Bunton, 27 N.C. App. 704, 220 S.E.2d 354 (1975). The Bunton decision, however, was based on an older version of N.C. Gen. Stat. § 20-139.1(d) which, in 1975 provided:
The person tested may have a physician, or qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law-enforcement officer. The failure or inability of the person tested to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law-enforcement officer. Any law-enforcement officer having in his charge any person who has submitted to the chemical test under the provisions of G.S. 20-16.2 shall assist such person in contacting a qualified person as set forth above for the purpose of administering such additional test.
Defendant contends that Bunton does not interpret the new version of N.C. Gen. Stat. § 20-139.1(d) and that the General Assembly expanded the rights of a defendant under the newer statute to require
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