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North Carolina v. Dellinger4/2/1985
hing affirmative defenses on the defendant. State v. Howren, supra. Accordingly, the trial court did not err in refusing to dismiss the driving while impaired charge based on an unconstitutional shift in the burden of proof to defendant.
III
Defendant next assigns as error the trial court's refusal to exclude the testimony of the breathalyzer operator. We find no prejudicial error.
G.S. 20-4.01(3b) defines a chemical analyst as "a person granted a permit by the Department of Human Resources under G.S. 20-139.1 to perform chemical analyses." The breathalyzer operator was granted his permit on 26 October 1982, before the effective date of the Safe Roads Act, by the Division of Health Services, North Carolina Department of Human Resources. Since G.S. 20-139.1 was not in existence when the breathalyzer operator was granted his permit, defendant argues that he was not a person granted a permit by the Department of Human Resources under G.S. 20-139.1. We disagree and note that G.S. 20-4.01, "Definitions.," states that "Unless the context otherwise requires the following words and phrases, for the purpose of this Chapter, shall have the following meanings: . . . ." We hold that in the present case the context requires that "chemical analyst" for purposes of G.S. 20-139.1 include a person who was validly licensed by the Department of Human Resources to perform chemical analyses immediately prior to the enactment of the Safe Roads Act. To hold otherwise would mean that an individual licensed to perform chemical analyses under one statute would automatically lose his license when the testing procedures are merely recodified in another statute. Obviously the legislature did not intend that result. We note the absence of any specific voiding language as to the capacity of chemical analysts to administer tests where those
chemical analysts were licensed prior to the enactment of the Safe Roads Act. Of similar import, the Safe Roads Act imposed no new training or education criteria on breathalyzer operators, but left the licensing power with the Commissioner of Health Services of the Department of Human Resources as it was under the prior law. For these reasons it was not error for the trial court to allow the breathalyzer operator to testify as to the results of the defendant's breathalyzer test.
For the reasons herein stated, we find no error in the trial of this action. Defendant's remaining assignments of error are without merit.
No error.
Disposition
No error.
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