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BLOOD TESTS

ADMISSIBILITY GOVERNING CHEMICAL ANALYSES; ADMISSIBILITY; EVIDENTIARY

PROVISIONS; CONTROLLED DRINKING PROGRAMS

A

1. 20-139.1(c1) ADMISSIBILITY

A. NOTICE AND DEMAND.

1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State when it wants to introduce something into evidence – in this case a blood test result – without producing the witness to testify about it. Specifically, this statute lays out the method for the State to introduce the evidence of a person’s alcohol concentration without the necessity of the chemical analyst being present and testifying. In order to do so, the State must do two things: first, notify the Defendant at least 15 business days before the proceeding at which it intends to introduce the evidence of its intent to introduce the evidence through a report; and, second, provide a copy of the report to the Defendant. If the Defendant fails to object in writing at least five business days before the proceeding, then the State will be permitted to introduce the report into evidence without the chemical analyst’s being required to appear and testify. If the Defendant objects timely before the proceeding, then the State must bring in the chemical analyst to testify (or try to get the evidence in under the rules of evidence – more on that below). The Defendant’s failure to object is a waiver of his confrontation clause rights. And in the case where the Defendant waives his right, the evidence will come in via the chemical analyst’s affidavit.

2. WHEN THE DEFENDANT WANTS THE EVIDENCE INTRODUCED. When the Defendant wants the evidence contained in the report to be introduced into evidence, the Defendant is not bound by the rules in this statute. The Defendant can introduce the report, which fortunately is always an affidavit, into evidence through one of the State’s other witnesses on cross-examination. This is so because the notice and demand statute applies only to the State, and this is so because the State doesn’t have a confrontation clause right. The way to introduce an affidavit into evidence is easy; the foundation is simply that it is an affidavit relating to this case; it is an affidavit of whoever the affiant is; the affidavit is properly notarized or certified.

B. CONCLUSION. The State will generally bring the chemical analyst to court when the Defendant files a timely objection . In the event the State fails to bring the chemical analyst to court, then the Court should, and usually will, suppress the evidence. Obviously, if the Court appears inclined to allow the evidence in when the Defendant has timely objected, it’s time to speak up and steer the Court away from a decision that may prove to be embarrassing later on.

2. 20-139.1(c3). PROCEDURE FOR ESTABLISHING CHAIN OF CUSTODY

WITHOUT CALLING UNNECESSARY WITNESSES.

A. According to this provision of the statute (c3), in order for the State to avoid bringing in all of the chain of custody witnesses, two things must occur: first, the State must comply with the same notice provisions as in (c1); and second, the defendant must fail to object. This rule is identical to the rule in GS. 20-139.1 (c1). Yet, for some reason, the State feels, and Judges accept, that the State need comply with only (c1) but not (c3). Invariably, Defendants file their objections, show up in court, and the State has its chemical analyst but not a single chain of custody witness between the policeman who received the evidence from a nurse, perhaps, and the chemical analyst who received the evidence from someone else. The State has a piece of paper identifying who all the “unnecessary” witnesses are; so the State knows who these people are; they all work for the State government in some capacity; yet, upon the Defendant’s timely objection, the State brings into Court only the witness referred to in (c1) but none of the witnesses referred to in (c3) – even though the rules under (c3) are identical to those under (c1). And, usually, the State gets away with it; the State gets to introduce the evidence without bringing in to court their chain of custody witnesses. If the State knows it can get way with ignoring (c3), why does it even bother bringing in the chemical analyst under (c1)? Why doesn’t the State ignore this rule too?

Here’s why: The “chain-of-custody-goes-to-weight-not-admissibilty” argument. This argument, in the context of 20-139.1(c3) is a total red herring. The statute is unambiguous that the only way in which the State can avoid bringing in the chain of custody witnesses is if it provides the statutory notice and the Defendant fails to object; there is nothing in this statute or anywhere else that provides an exception to this rule. While the argument that chain of custody issues go to weight rather than admissibility has some basis, when a statute like 20-139.1(c3) exists, there can be no argument over weight versus admissibility unless the Defendant has failed to object. This entire statute is about admissibility, hence its name; the legislature has spoken as clearly as we could ask it to: chain of custody witness-statements can come in through a piece of paper only if the state has notified the Defendant of its intent to do so and the Defendant has failed to object.

As to the argument of weight versus admissibility, which should arise only in the event that either the State has failed to notify the Defendant or the Defendant has failed to object when the State has notified the Defendant, the bold assertion that issues of chain of custody go to weight rather than admissibility is simply false; it is a mis-characterization the law: Breaks in the chain of custody go to admissibility; weak links in the chain of custody go to weight. See State v. Pennington, 327 N.C. 89 (1990); State v. Fleming, 350 N.C. 109 (1999); State v. McDonald, 151 N.C. App. 236 (2002); and, crucially, see the two civil cases: Lombroia v. Peek, 107 N.C. App. 745 (1992), and Columbus County, on behalf of Brooks v. Davis, 163 N.C. App. 64 (2004). The civil cases are especially strong for the criminal defendant to argue because civil defendants are not afforded the same constitutional protections as criminal defendants; in particular, civil litigants do not benefit from criminal defendants’ confrontation clause rights.

Further certainty as to the statutory intent of both (c1) and (c3) is the fact that both of these provisions include the following language: “Upon filing a timely objection, the admissibility (my italics) shall be determined and governed by the appropriate rules of evidence.” So, by including this language, the legislature actually emphasizes the only manner in which chain of custody statements come into evidence in the absence of the actual chain of custody witness – that the rules of evidence will then determine and govern the admissibility of the chain of custody statement. What the statute fails to mention (because it obviously need not) is that the evidence will not be admitted if it violates the Defendant’s constitutional rights. And in the case of the State providing notice to the Defendant and the Defendant’s objecting, where admissibility will then be governed by the rules of evidence, if the State is able to find a rule of evidence that would allow the piece of evidence to be introduced, the State must do so without violating the Defendant’s constitutional right to be confronted with and to cross-examine the witness against him. See Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.

3. 20-139.1(b)

A. “The Results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration.

This is the language at issue in the case of State v. Narron, 193 N.C. App. 83 (2008), as well as the source of the per se pattern jury instruction – an instruction that so obviously makes a presumption about whether a fact has been proven or not (which, as we all know, is the function of the jury and the jury’s alone) that the ultimate result in Narron beggars belief. But despite this language (and the Narron Court’s ultimate decision), Narron is actually good for us. Narron makes clear that evidence of a particular breath or blood result (.08 for example) does not actually create the legal presumption that the jury must find that that piece of evidence has been proven; rather, Narron instructs, it is treated as simply some evidence of the fact – to be treated like any other piece of evidence; it is nothing more than prima facie evidence of the fact that must be proven. (Try explaining that to a jury when they’ve just been told by the judge, whose law they’ve all repeatedly promised to follow, that the results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration!).

4. 20-139.19(e1) and (e2)

A. These provisions of the statute allow the State, in District Court, to introduce the chemical analyst’s affidavit without further authentication and without the testimony of the analyst with respect to the five listed matters. Number 5 is interesting in that it seems to disallow the Court from taking judicial notice of the preventive maintenance records that 20-139.1(b2) specifically does allow. Under this provision, the affidavit must contain “the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown (my italics) on the maintenance records for that instrument.” It sounds like, the State, in this scenario, would need to actually produce the preventive maintenance records, and not be allowed to have the Court take judicial notice of them, as is allowed under 20-139.19(b2), discussed above.

B. The method for admitting this affidavit into evidence (e2) is identical to the methods referred to and discussed above in 20-139.1(c1) and (c3) – notice and demand. What this provision glaringly omits is any reference to a test ticket. If the affidavit doesn’t contain the alcohol concentration (which, for some reason, it rarely if ever does), then, because of the absence of any mention of a test ticket or any other piece of paper that might contain the alcohol concentration, the affidavit comes in but the test ticket containing the alcohol concentration does not; only the affidavit comes into evidence. It is well worth noting that the equivalent statute that existed in North Carolina, prior to Crawford v. Washington, allowed the introduction of the chemical analyst’s affidavit and “attached test ticket” to establish the Defendant’s alcohol concentration. So the argument that the legislature obviously intended for the test ticket to be admissible as well as the affidavit is defeated by the fact that the legislature has previously dealt with this issue in the era prior to Crawford overruling the Ohio v. Roberts, 448 U.S. 56 (1980) hearsay reliability standard, and specifically included the “attached test ticket” language.

Just like sections (c1) and (c3), section (e2) calls for the rules of evidence to govern in the event that the State has provided notice and the Defendant has objected. And, of course, the same confrontation clause analysis applies here as it does under (c1) and (c2).

Note the awful language that “the case shall (my italics) be continued until the analyst can be present.” Is this true even if the file has been marked “last for the State”? Does this provision allow for an indefinite continuance? It seems to – which, of course, raises a speedy trial issue. Interestingly, the case can be dismissed if the analyst “willfully fails to appear after being ordered to appear by the court.” I would have thought the remedy would be suppression of the evidence (and the analyst being held in contempt of court), but apparently, it’s dismissal of the case.

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