In North Carolina, when a defendant is suspected of Driving While Intoxicated and is being asked to submit to an intoxilyzer, or some other blood alcohol content exam, they have a statutory right to have a witness come and observe their test; with one caveat: the witness has to get there within 30 minutes. N.C.G.S.A. §20-16.2 (a)(6)(2011).
Since checkpoints see their most action at odd hours, the majority of defendants are unable to get a witness to the scene quickly, so oftentimes the “30 minute right” goes unasserted. I was recently involved in a case that tested the parameters of the 30 minute right when a client called me at 12:30 a.m. to come serve as his witness after he was stopped at a checkpoint near my home. I was a witness in the case and elected not to serve as counsel; but there were a few nuances to the 30 minute right that became important, and I thought they were worth sharing.
The right to have a witness present is not the same as the right to have an attorney present. Courts have found that this is not a “critical stage of the prosecution” under the 6th Amendment; so regardless of whether the defendant calls their attorney, or their buddy down the street, the right applies the same. See Sedars v. Powell, 298 N.C. 453, 461-63 (1979); U.S. Const. amend. VI.
The 30 minute timer begins as soon as the defendant makes their first phone call, regardless of whether or not somebody picks up. After 30 minutes, the officer will begin the exam regardless of whether a witness is a mile away, or right outside the door. See N.C.G.S.A. §20-16.2 (a)(6) (2011).
Once the witness arrives, the police can delay them from accessing the defendant so long as the delay is “reasonable”. See State v. Hatley, 190 N.C. App. 639, 641-43 (2008). So, for example, a witness who arrives at a checkpoint without their license, or with an expired vehicle registration, can be made to wait while an officer runs their information and writes them a ticket; all the while those 30 minutes continue to tick away. Even a properly licensed and registered witness will likely have to pass through the checkpoint, which could cost the defendant critical time.
The defendant’s right to a witness includes the setup of the intoxilyzer machine, as well as the administration of the test. So a timely witness should have the opportunity to watch the machine calibrated, and then make sure that the defendant’s two tests are given within five minutes of each other, and that the results of those tests are within .02 of each other (the standard for a breathalyzer test to be admitted as prima facie evidence of intoxication). See N.C.G.S.A §20-139.1 (b3) (2011). The witness may also be questioned as to the defendant’s appearance and apparent intoxication, so it is important for the witness to talk and interact with the defendant as
much as possible. The witness may be needed to give critical testimony about things like the defendant’s speech, ability to stand and whether their eyes are droopy or glossy.
If the court finds that the defendant was denied their 30 minute right, or that the test was improperly administered thanks to the witness’ testimony, the remedy is exclusion of the test results, leaving the State with little evidence and making it difficult for them to win a conviction. See State v. Ferguson, 90 N.C. App. 513, 519 (1988); State v. Buckheit, 735 S.E.2d 345, 347-48 (N.C. App. 2012); State v. Myers, 188 N.C. App. 452, 494-55 (1995).
For more information about defense of DWI’s, contact Corey V. Parton at Parton & Associates, PLLC.
This article is intended for informational purposes only. Each case is different and must be analyzed on it’s own facts and merits, so nothing in this article should be construed as or relied upon as legal advice.
Written by Attorney Corey V. Parton.
Researched by Megan White, Second Year Law Student.
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The law applies differently in each situation. Nothing on this page should be construed as or be relied upon as legal advice.