The Alcosensor phoenix dui lawyer

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					                           Blood, Breath & Beyond
                                         Bill Powers
                                Law Office of Bush & Powers
                          A Partnership of Professional Associations
                          Law Office of Tom Bush, P.A. & F. William Powers, P.A.
                              500 East Morehead Street, Suite 101
                                Charlotte, North Carolina 28202
                                     (704) 342-4357 Office
                                  bowties@mindspring.com




          Introduction

I’m guessing if you’re reading these materials you’re an DWI litigator. . .a good one at that.
You’re concerned about this new law and you’re afraid clients are going to get dogged in
court. Hopefully you’ll come to recognize one central fact: Experienced, prepared and
creative lawyers will still win DWI cases.

Defense lawyers cannot sit back and poke holes in cases. They need to become teachers and
educate others. They need to know more than anyone else in the courtroom. They need to
be experts in a fairly technical scientific field. They should be willing to defend a sometimes
less than worthy cause and they must be reasonable.

I’ve heard there are a fair number of defense lawyers who “dabble” in the field of Impaired
Driving. I simply prefer to think that speculation and rumor. Hopefully everyone wants to
be a respected trial lawyer, to understand the law / science and to zealously defend their
client.

I’ve heard horror stories of how some defense lawyers appear in court, look at the shuck and
maybe talk with the officer in chambers. Thereafter they decide a plea is appropriate, get a
continuance and mention something to the client about cutting losses. If you’re a member
of the North Carolina Academy of Trial Lawyers, clearly that’s nothing more than urban
legend.

We all make mistakes; yet, there is a difference between an error and a fundamental
unwillingness to evolve professionally. There is a difference between providing sound legal
advice that results in a guilty plea and a trial based upon purely speculative legal, factual and
scientific grounds.

Sir Winston Churchill once quipped, “Men occasionally stumble over the truth, but most of
them pick themselves up and hurry off as if nothing ever happened.” The truth is, we all
could further educate ourselves to help promote justice in District and Superior Courts of
North Carolina.


                                                    1
The Rules of Professional Conduct state, “A lawyer shall not handle a legal matter that the
lawyer knows or should know he or she is not competent to handle without associating with
a lawyer who is competent to handle the matter. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.” It’s Rule Number 1.1.

If you are going to accept Impaired Driving matters for representation, you need to accept
as true three things: They take preparation. They take knowledge. They take judicious
application of preparation and knowledge.

Churchill also wrote, “Success is the ability to go from one failure to another with no loss of
enthusiasm.” You are going to plead out a fair number of DWI cases. The political climate
regarding the area of law is not defendant friendly. No one feels sorry for drunk drivers. It’s
a third-rail issue for judges and prosecutors. No one wants to appear to “soft on crime.”

M.A.D.D. Mothers and newspapers are keeping score. They report conviction rates and the
number of cases handled. They sit in courtrooms with notebooks. They pressure, they
intimidate and they offer no apologies.

Past seminars have focused on the minutia of scientific evidence. In reality, there are a few
other areas to consider like the Facts, Law, Odds, Time & Money. In past seminars I have
consistently hammered on educating lawyers on the science of impaired driving. It is
monumentally important to understand the basic operations of breath screening devices.

If you want to read more regarding breath testing, call me. There are wide arrays of
resources available for those interested.



           The Facts

Putting modesty aside, I have occasionally come across fellow defense lawyers using
previous CLE materials in court. Although that is encouraging, one cannot help but feel
immediate need to blurt out: This is a good case, right? You’re not trying to argue
good science with bad facts? Please don’t poison the well.

Wow, that is pretty strong language. At the same time, it’s true.

There is an old saying among lawyers. “If you have good facts, pound on the facts. If you have good
law, pound on the law. And if you don’t have good facts or good law, pound on the table.”

Arguing the nuances of highly technical scientific evidence with terrible facts is like Wiley
Coyote strapping on an Acme Rocket whilst on roller skates. Somehow he always ends up
looking and sounding like an accordion. Not good.

Going to court and “taking a look at the shuck” is not enough. For whatever reason, it
sometimes works out that way. There are instances where there just isn’t anything to review.
Accident cases normally are the most thin and to some extent that can be good. Yet in the
vast majority of cases, substantial pre-trial preparation will make a difference.
                                                  2
          The Law


Since the series of articles published statewide regarding Impaired Driving, the methodology
of trials themselves has changed. Judges, despite some of the negative criticisms they have
endured in the hallways of justice, still believe in the precepts of “innocent until proven
guilty” and “the state’s burden of proof.”

From a purely political perspective, and granted this is merely speculative because I am not a
judge and therefore cannot speak with authority in the area, it is increasingly difficult to
justify a Not Guilty verdict based solely on a relatively low Intoxilyzer reading and good field
tests.

There are too many armchair quarterbacks who are not interested in the other circumstances
or relevant facts of the case. As such, the best way to win an D.W.I. case is to prevent the
admission of the Intoxilyzer results.

Please make no mistake, it is not an easy thing to suppress Intoxilyzer tests. Yet if one
thinks creatively, there is another option: Win the Fight in First Round. Knock the case out
before the introduction of the Intoxilyzer.

Clearly the standards for Reasonable Suspicion and Probable Cause have eroded during the
last two decades. At the same time, they still do exist.

I recently discovered something to my great dismay. Headnotes for cases, whether espoused
by certain folks in Chapel Hill or the mega-publishers themselves, are NOT always accurate.
Like the Bible, different folks read things from different perspectives. For years I assumed
cases were bad based on perfunctory reading of cases or advance sheets. That was a
mistake.

If you really get into the cases, you will find one thing for certain. Not all the caselaw is bad.
In fact, you will be surprised that if you know the cases, you know the fact patterns and you
actually can argue them in court, Reasonable Suspicion and Probable Cause are effective
tools.



           The New Law: Alcohol Screening Devices

PART V. ALCOHOL SCREENING DEVICES
        SECTION 7.

N.C.G.S. §20-16.3 reads as rewritten:




                                                3
§ 20-16.3. Alcohol screening tests required of certain drivers; approval of test devices
             and manner of use by Commission for Health Services; Department of
             Health and Human Services; use of test results or refusal.
     (a)      When Alcohol Screening Test May Be Required; Not an Arrest. – A
law-enforcement officer may require the driver of a vehicle to submit to an alcohol screening
test within a relevant time after the driving if the officer has:
             (1)     Reasonable grounds to believe that the driver has consumed alcohol and
                      has:
                      a.      Committed a moving traffic violation; or
                      b.      Been involved in an accident or collision; or
             (2)     An articulable and reasonable suspicion that the driver has committed an
                      implied-consent offense under G.S. 20-16.2, and the driver has been
                      lawfully stopped for a driver's license check or otherwise lawfully stopped
                      or lawfully encountered by the officer in the course of the performance
                      of the officer's duties.
Requiring a driver to submit to an alcohol screening test in accordance with this section does
not in itself constitute an arrest.
     (b)      Approval of Screening Devices and Manner of Use. – The Commission for
 Health ServicesDepartment of Health and Human Services is directed to examine and
approve devices suitable for use by law-enforcement officers in making on-the-scene tests of
drivers for alcohol concentration. For each alcohol screening device or class of devices
approved, the Commission Department must adopt regulations governing the manner of
use of the device. For any alcohol screening device that tests the breath of a driver, the
Commission Department is directed to specify in its regulations the shortest feasible
minimum waiting period that does not produce an unacceptably high number of false
positive test results.
     (c)     Tests Must Be Made with Approved Devices and in Approved Manner. – No
screening test for alcohol concentration is a valid one under this section unless the device
used is one approved by the Commission for Health Services Department and the screening
test is conducted in accordance with the applicable regulations of the Commission
 Department as to the manner of its use.
     (d)     Use of Screening Test Results or Refusal by Officer. – The results of anfact that a
driver showed a positive or negative result on an alcohol screening test, but not the actual
alcohol concentration result, or a driver's refusal to submit may be used by a
law-enforcement officer, is admissible in a court, or may also be used by an administrative
agency in determining if there are reasonable grounds for believingbelieving:
             (1)      thatThat the driver has committed an implied-consent offense under
                      G.S. 20-16.2. G.S. 20-16.2; and
             (2)     That the driver had consumed alcohol and that the driver had in his or
                      her body previously consumed alcohol, but not to prove a particular
                      alcohol concentration. Negative or low results on the alcohol screening
                      test may be used in factually appropriate cases by the officer, a court, or
                      an administrative agency in determining whether a person's alleged
                      impairment is caused by an impairing substance other than alcohol.
                      Except as provided in this subsection, the results of an alcohol screening
                      test may not be admitted in evidence in any court or administrative
                      proceeding."



                                               4
Modifications to the “Alcohol Screening Device” instructions under §20-16.3 are relatively

minimal. Most of the same defenses regarding probable cause and suppression of the

AlcoSensor remain viable.

       One cannot effectively attack the veracity of the AlcoSensor results without referring

directly to the Administrative Code. Presently, it does not appear the Administrative Code

has been modified to reflect changes in the statute. . .which is frankly odd. One would be

remiss in failing to recognize the fact that the Code must be amended to reflect changes in

§20-16.3.

       For example, reference to the “Commission for Health Services,” as amended to the

Department of Health and Human Services in §20-16.3, have not been corrected in the

Code. The big unknown factor is the oddly written subsection (d) in §20-16.3:

    (d)    Use of Screening Test Results or Refusal by Officer. – The results of anfact that a
driver showed a positive or negative result on an alcohol screening test, but not the actual
alcohol concentration result, or a driver's refusal to submit may be used by a
law-enforcement officer, is admissible in a court, or may also be used by an administrative
agency in determining if there are reasonable grounds for believingbelieving:
           (1)     thatThat the driver has committed an implied-consent offense under
                   G.S. 20-16.2. G.S. 20-16.2; and
           (2)    That the driver had consumed alcohol and that the driver had in his or
                   her body previously consumed alcohol, but not to prove a particular
                   alcohol concentration. Negative or low results on the alcohol screening
                   test may be used in factually appropriate cases by the officer, a court, or
                   an administrative agency in determining whether a person's alleged
                   impairment is caused by an impairing substance other than alcohol.
                   Except as provided in this subsection, the results of an alcohol screening
                   test may not be admitted in evidence in any court or administrative
                   proceeding."

       With all due candor, this author has no idea what a “positive or negative result”
means. It seems likely the Legislature intended allow, for limited purposes, admission as
substantive evidence that alcohol may or may not have been present. That argument is
further bolstered by the additional language, “but not the actual concentration result.”
Clearly a negative inference can be drawn when the State is seeking to prove impairment
through some substance other than ethanol. Furthermore, the Defendant’s refusal to submit
                                           5
to the AlcoSensor appears to trigger a negative inference that probable cause existed for an
implied consent offense.
        One could argue that in attempting to enlarge the basis for admitting AlcoSensor
results, specifically for administrative hearings and provisional licensee violations under §20-
138.3, the Legislature completely banned specific numerical values by writing “but not to
prove a particular concentration.”
        A plain reading of the statute and therefore the most logical conclusion regarding
their acceptance at trial is that a specific numerical value is not admissible as substantive
evidence regarding impairment. . .which has always been the case; yet, the results may be
taken into consideration in cases whereby the accused refuses to provide a breath sample.
        The import of that point cannot be ignored. As previously written in CLE materials,
the single most effective area to attack is probable cause. The protocol for establishing
probable cause has traditionally been that AlcoSensor results were not admissible, unless
probable cause was challenged. That does not seem to have changed to the detriment of the
defendant. In fact, because of the poorly written statute, one could creatively argue the
officer could only testify to a result being positive or negative for the existence of Ethyl
Alcohol, but not the exact number. Read: “but not the actual concentration results.”
        Under the re-write, the Legislature may have sought to admit “positive” or
“negative” for alcohol without a specific reading even if probable cause is not challenged.
Frankly, that is a bit of overkill, in that what arrest for DWI does NOT have a “strong odor
associated with alcohol?” So what if on the issue of probable cause, the AlcoSensor results
show “positive” for ethanol? Confirming there was alcohol is no stronger evidence of guilt
or for establishment of probable cause than when an officer testified s/he smelled it on the
defendant’s breath or person. Somewhere there has evolved an assumption that the stronger
the odor, the more impaired the person might be. There is absolutely no scientific basis for
that line of reasoning; in fact, the odor of alcohol, at best, may show a more recent ingestion
of ethanol. Nothing more, nothing less.
        Practitioners should continue to argue against admissibility of AlcoSensor results,
regardless of the numerical reading or “positive / negative” issue. There remain substantial
hurdles in admission, specifically as they pertain to compliance with training and
manufacturer standards. That position is emboldened by other language within the new
DWI statute, which requires appropriate training for the admission of the Horizontal Gaze
Nystagmus (HGN) and Drug Recognition Expert issues.
                                                6
        Intoximeters, Inc., manufacturer of the AlcoSensor devices, has consistently hoped
to avoid admission of test results to an “evidentiary standard.” In personally speaking with
the owner of the company and chief engineer, he has roughly stated, “it could be used as
evidence in the case in chief, but that’s not how we prefer it.”
        Of interest to any Academy member handling personal injury cases, the statute was
changed to allow admissibility in civil actions. One could reasonably infer the language
regarding the “positive / negative” results was tailored for that purpose, with an attempt to
limit a numerical value in civil cases. Ergo, the curious language utilized in “clarifying” the
admissibility of breath screening devices, which for all practical purposes still remain only
those manufactured by Intoximeters, Inc., (AlcoSensor, AlcoSensor III & AlcoSensor IV)
will help Plaintiffs Lawyers and in an odd way, possibly DWI Lawyers.
        Frankly, the Legislature’s statutory language is more confusing than helpful to
prosecutors. It gives experienced, knowledgeable trial counsel ample ammunition to seek
suppression of a numerical reading in DWI trials. At the same time the Legislature allows
AlcoSensor evidence for the purpose of showing alcohol was proximately related to an
accident. Do the major carriers know about this yet?


           The Code

        The North Carolina Administrative Code (N.C.A.C.) sets forth the procedural and

technical requirements for “Alcohol Screening Test Devices” in 15A N.C.A.C. §19B.0501

through §19B.0503. Perhaps the biggest lapse in accuracy regarding this area of law, rather

than from the technology itself, is from practitioners’ assumption their 1976 copy of the

relevant Administrative Code is good law. Because of the level of importance, the statutes

are provided in their entirety as follows. Again, as of the date of this paper, the Code had

not been amended to reflect changes in the new DWI statutes.




 15A N.C.A.C. 19B.0500


                                                7
 § .0500. ALCOHOL SCREENING TEST DEVICES
 § .0501 SCREENING TESTS FOR ALCOHOL CONCENTRATION

 (a) This Section governs the requirement of G.S. 20-16.3 that the commission examine
 devices suitable for use by law enforcement officers in making on-the-scene tests of
 drivers for alcohol concentration and that the commission approve these devices and their
 manner of use. In examining devices for making chemical analyses, the commission finds
 that at present only screening devices for testing the breath of drivers are suitable for on-
 the- scene use by law enforcement officers.
 (b) This Section does not address or in any way restrict the use of screening tests for
 impairment other than those based on chemical analyses, including various psychophysical
 tests for impairment.

HISTORY NOTE
Statutory Authority G.S. 20-16.3; 20-16.3A;
First Effective February 1, 1976;
Readopted Effective December 5, 1977;
Amended Effective 10/1/1993; 10/1/1983; 1/1/1982.

 § .0502 APPROVAL: ALCOHOL SCREENING TEST DEVICES: USE

(a) Alcohol screening test devices that measure alcohol concentration through testing the
breath of individuals are approved on the basis of results of evaluations by the Forensic
Tests for Alcohol Branch. Devices shall meet the minimum requirements as set forth in the
current state purchase and contract bid specifications for Alcohol Screening Test Devices.
Evaluations are not limited in scope and may include any factors deemed appropriate to
insure the accuracy, reliability, stability, cost, and ease of operation and durability of the
device being evaluated. On the basis of evaluations to date, approved devices are listed in
15A NCAC 19B .0503 of this Section.


(b) When the validity of an alcohol screening test of the breath of a driver administered by
a law enforcement officer depends upon approval by the Commission of the test device
and its manner of use, the test shall be administered as follows:

(1) The officer shall determine that the driver has removed all food, drink, tobacco
products, chewing gum and other substances and objects from his mouth. Dental devices
or oral jewelry need not be removed.

(2) Unless the driver volunteers the information that he has consumed an alcoholic
beverage within the previous 15 minutes, the officer shall administer a screening test as
soon as feasible. If a test made without observing a waiting period results in an alcohol
concentration reading of .08 or more, the officer shall wait five minutes and administer an
additional test. If the results of the additional test show an alcohol concentration reading
more than .02 under the first reading, the officer shall disregard the first reading.

(3) The officer may request that the driver submit to one or more additional screening tests.


                                               8
(4) In administering any screening test, the officer shall use an alcohol screening test device
approved under 15A NCAC 19B .0503 of this Section in accordance with the operational
instructions supplied with or listed on the device, except that the waiting periods set out in
this Rule supersede any period specified by the manufacturer of the device.

HISTORY NOTE
Authority G.S. 20-16.3;
First Effective February 1, 1976;
Readopted Effective December 5, 1977;
Amended Effective 4/1/2001; 9/1/1990; 1/1/1990; 10/1/1983


§.0503 APPROVED ALCOHOL SCREENING TEST DEVICES: CALIBRATION

(a) The following breath alcohol screening test devices are approved as to type and make:
(1) ALCO-SENSOR (with two-digit display), made by Intoximeters, Inc.
(2) ALCO-SENSOR III (with three-digit display), made by Intoximeters, Inc.
(3) ALCO-SENSOR IV, manufactured by Intoximeters, Inc.
(4) SD-2, manufactured by CMI, Inc.
(b) The agency or operator shall verify instrument calibration of each alcohol screening test
device at least once during each 30 day period of use. The verification shall be performed
by employment of an alcoholic breath simulator using simulator solution in accordance
with these Rules or an ethanol gas canister.
(1) Alcoholic breath simulators used exclusively to verify instrument calibration of alcohol
screening test devices shall have the solution changed every 30 days or after 25 calibration
tests, whichever occurs first.
(2) Ethanol gas canisters used exclusively to verify instrument calibration of alcohol
screening test devices shall not be utilized beyond the expiration date on the canister.
(3) Requirements of Paragraph (b) and Subparagraph (b)(1) and (b)(2) of this Rule shall be
recorded on an alcoholic breath simulator log or an ethanol gas canister log designed by the
Forensic Tests for Alcohol Branch and maintained by the user agency.

HISTORY NOTE
Authority G.S. 20-16.3;
First Effective February 1, 1976;
Readopted Effective December 5, 1977;
Amended Effective 4/1/2001; 1/1/1995; 1/4/1994; 1/1/1993; 1/4/1994.




          AlcoSensor Logic

Question #1: Did the Officer have the legal right to ask for a sample?

What to Look For:       Did the Officer have the legal authority to get a sample?

The standard is bifurcated. Officers have two ways to “require” an alcohol screening test,

                                               9
which remain the same:

1.      Consume Alcohol AND Committed a MOVING violation or accident. Inspection
        Sticker? Not a moving violation. Registration? Not a moving violation. No
        Insurance? Moving violation.

-or-

2.      Have reasonable, articulable suspicion has committed an implied-consent offense
        AND basically anything the officer has some legitimate legal basis to stop or
        “encounter.” That encounter is something used in Mecklenburg County and is
        often referred to as a “voluntary contact.”

 That logic may sound perfunctory; yet, it is not. It is assumed all too often that the
two prongs of the standard under §20-16.3 have merged. Educate your judges. Also
be VERY careful of the oddly written / inconsistent language in the new §20-16.3A.

Even if the stop is legitimate, the officer still must have reasonable, articulable suspicion of
an implied-consent offense. Is odor of alcohol enough? What about red glassy eyes or
slurred speech? The state often argues the “totality of the circumstances” test, which is
espoused in some recent caselaw.

At the same time, checkpoint cases are prone to attack. Commonly there is no bad driving.
At most there may be an odor of alcohol. In Charlotte, certain “DWI Checkpoint Plans”
state: If there is an odor of alcohol about the vehicle or person, the reporting officer must
remove the person from the vehicle and administer an alcohol breath screening device.”

As such, there is no reasonable, articulable suspicion other than the odor of alcohol.

*Cautionary Tip: Make sure to balance §20-16.3A with 20-16.3. Also, don’t get
suckered by the “high drug area” or the “high DWI incidence zone” or other such
hearsay. Also recognize the new “Checking Station” statute is clearly out-of-line
with the Rose decision and other U.S. Supreme Court 4th Amendment cases.

The United States Supreme Court has some pretty good language out there in Crawford.
How does a lawyer cross-examine that assumption based upon hearsay?

Why is it relevant to the Court’s consideration of the facts? Or is it merely an attempt to
sour the finder of fact and law? If people are poor and live around drug dealers, do they
forfeit their 4th Amendment rights? If people work third shift and drive on public streets or
highways, are they no less secure in the right to simply drive home?

Argue against that hearsay statement. It does not go to the Officer’s state of mind. It’s an
end-run around the facts and it is a self-perpetuating, self-bolstering, circular argument.
Read North Carolina v. Roberson and Judge Bryant’s opinion:

        The fact that [the officer’s] observation of defendant gave rise to no more
        than an ‘unparticularized suspicion or hunch’ cannot be rehabilitated by
        adding to the mix of considerations the general statistics advocated by the


                                               10
       state on the time, location and special events from which a law enforcement
       officer would draw his inferences based on his training and experience.”

Yes, you read that right. Roberson is all about reasonable suspicion and the High
Point Furniture Market; yet, it also stands for an important precept. Our appellate
courts are not going to allow “unparticularized suspicions” or “hunches.”

Therefore, before you try to attack whether the AlcoSensor was properly maintained
or administered, first ask: Did the Officer have a legal basis to require submission to
the AlcoSensor? You might be surprised and win a case or two on that point.

Question #2: Did the Officer “Use” the Alcohol Screening Device According to the
Administrative Code?

What to Look For:     Number 4 in the program, Number 1 in your heart. Or B-4
you accept Probable Cause, see if he followed the manufacturer’s specifications.

*Cautionary Tip: There is a Treasure Trove of helpful information in the
AlcoSensor Manual. Get yourself a copy of it right away. Read it. Learn it. Love it.

The single most important Administrative Code provision is Subsection (b)(4) of § .0502.

       (4) In administering any screening test, the officer shall use an alcohol
       screening test device approved under 15A NCAC 19B .0503 of this
       Section in accordance with the operational instructions supplied
       with or listed on the device, except that the waiting periods set out
       in this Rule supersede any period specified by the manufacturer of
       the device.

“. . .in accordance with the operational instructions supplied with or listed on the device.”
Here’s a clue: Most officers do not have a copy of operational instructions. They do not
know what the operational instructions say. And their defense commonly is, “I perform the
test according to my training.”

I love this argument, because it belies the truth and runs contrary to the law. How an officer
was trained and/or his good faith efforts is completely irrelevant. Standard protocols
established by the department, regardless of how earnest in their efforts, simply do not pass
muster.

The North Carolina General Assembly did not want to mess with the science of the
gadgetry. Once you read the Administrative Code, it doesn’t take a huge leap to recognize
the fact that is the very reason for the North Carolina Department of Health and Human
Services (DHHS), Forensic Test for Alcohol Branch.

The Legislature left it up to the DHHS to help pick “approved screening devices” and to
establish the methods of deployment, calibration, maintenance and the like. Other than
waiving the recommended waiting period as established by Intoximeters, Inc. the Legislature
threw a Hail Mary to Intoximeters.



                                              11
*Cautionary Tip: The Waiting Period as directed in the Manual is different from the
Administrative Code. It recommends “generally 15 to 20 minutes.”

The Admin Code states: “. . .the officer shall administer a screening test as soon as feasible.
If a test made without observing a waiting period results in an alcohol concentration reading
of .08 or more, the officer shall wait five minutes and administer an additional test. If the
results of the additional test show an alcohol concentration reading more than .02 under the
first reading, the officer shall disregard the first reading.”

The Admin Code also states, “For any alcohol screening device that tests the breath of a
driver, the Commission is directed to specify in its regulations the shortest feasible minimum
waiting period that does not produce an unacceptably high number of false positive test
results.”

Go figure. On every other aspect of the AlcoSensor, they say, “follow what the expert
engineers say.” On the waiting period they say, “Well, we disagree, even if you say that hurts
the test results and gives false highs. We want FAST readings. So your science is wrong
there. But in everything else, you must absolutely follow what Intoximeters says about their
device.”

Think on it. Have you ever seen AlcoSensor readings that were “disregarded” by the
charging officer? Do they even keep track of that? For the record, what is an “acceptable
level of false high results?”

Question #3: Where is the Ethanol Gas Canister Log?


What to Look For: See the Attached Log. They do exist!

*Cautionary Tip: The purpose of the Canister Log is to comply with §.0503
APPROVED ALCOHOL SCREENING TEST DEVICES: CALIBRATION. The
problem is, very police agencies use the form, have it as proof or even know it exists.

        (b) The agency or operator shall verify instrument calibration of each alcohol

screening test device at least once during each 30 day period of use. The verification shall be

performed by employment of an alcoholic breath simulator using simulator solution in

accordance with these Rules or an ethanol gas canister.

(1) Alcoholic breath simulators used exclusively to verify instrument calibration of alcohol

screening test devices shall have the solution changed every 30 days or after 25 calibration

tests, whichever occurs first.

(2) Ethanol gas canisters used exclusively to verify instrument calibration of alcohol

screening test devices shall not be utilized beyond the expiration date on the canister.
                                              12
(3) Requirements of Paragraph (b) and Subparagraph (b)(1) and (b)(2) of this Rule shall be

recorded on an alcoholic breath simulator log or an ethanol gas canister log designed by the

Forensic Tests for Alcohol Branch and maintained by the user agency.

The truth is, only State Troopers know what the heck you are talking about when discussing
the Canister Log. Realize too there is a difference between an “alcoholic breath simulator”
and an “ethanol gas canister.”



          Section 8: “Clarification of Impaired Driving Offenses”

        Frankly, Section 8 should not present many additional problems to DWI
practitioners. The statute merely clarifies a longstanding line of cases that have set forth
what a “public vehicular area” may be.
        One interesting amendment is the new “beaches” definition, which now means
drunk fisherman could get arrested on the outer banks.


§ 20-4.01. Definitions.
   Unless the context requires otherwise, the following definitions apply throughout this
Chapter to the defined words and phrases and their cognates:
           …
           (32) Public Vehicular Area. – Any area within the State of North Carolina that
                   meets one or more of the following requirements:
                   a.     The area is generally open to and used by the public for vehicular
                          traffic, traffic at any time, including by way of illustration and not
                          limitation any drive, driveway, road, roadway, street, alley, or
                          parking lot upon the grounds and premises of any of the
                          following:
                          1.        Any public or private hospital, college, university, school,
                                    orphanage, church, or any of the institutions, parks or
                                    other facilities maintained and supported by the State of
                                    North Carolina or any of its subdivisions.
                          2.        Any service station, drive-in theater, supermarket, store,
                                    restaurant, or office building, or any other business,
                                    residential, or municipal establishment providing parking
                                    space for customers, patrons, or the public. whether the
                                    business or establishment is open or closed.
                          3.        Any property owned by the United States and subject to
                                    the jurisdiction of the State of North Carolina. (The
                                    inclusion of property owned by the United States in this
                                    definition shall not limit assimilation of North Carolina
                                    law when applicable under the provisions of Title 18,
                                    United States Code, section 13).
                                               13
                    b.      The area is a beach area used by the public for vehicular traffic.
                    c.      The area is a road opened to used by vehicular traffic within or
                            leading to a subdivision for use by subdivision residents, their
                            guests, and members of the public, subdivision, whether or not
                            the subdivision roads have been offered for dedication to the
                            public.
                    d.      The area is a portion of private property used for by vehicular
                            traffic and designated by the private property owner as a public
                            vehicular area in accordance with G.S. 20-219.4.
                   …
            (45)   State. – A state, territory, or possession of the United States, District of
                   Columbia, Commonwealth of Puerto Rico, or a province of Canada.a
                   province of Canada, or the Sovereign Nation of the Eastern Band of the
                   Cherokee Indians with tribal lands, as defined in 18 U.S.C. § 1151,
                   located within the boundaries of the State of North Carolina.

§20-219.4 is an odd little statute entitled “Public Vehicular Area Designated” that appears to
run somewhat contrary with the intent of the DWI rewrite. §20-219.4 defines an PVA as,

“(a) Any area of private property used for vehicular traffic may be designated by the property
owner as a public vehicular area by registering the area with the Department of
Transportation and by erecting signs identifying the area as a public vehicular area in
conformity with rules adopted by the Department of Transportation.”

        Put simply, private property owners can register their land with DOT at “a fee not to
exceed five hundred dollars ($500.00) per registration request authorized by this section.”
As a DWI lawyer, it is hard to imagine why someone would want to do that.
        The DWI rewrite clearly intends to capture about every possible area where
motorists can drive, even if the area of operation or access to the general public is limited.
In addition to businesses, roadways and the like, the argument against arresting a tailgater
parked in someone’s front yard is now “clarified.” The unexpected area of concern would
be people partying before a sporting event, drinking and listening to music. . .with keys in
the ignition.
        Another arguably technical fact scenario: a bicyclist on the beach. So much for the
summer convention.




           Part VI Section 8: Clarification of Impaired Driving Offenses
                                             14
        Quick, what five words perfectly set forth the intent of the Legislature? Answer:
“Shall be deemed sufficient evidence.” Frankly, it was pure genius on the part of the authors
of the bill. The lynchpin upon which the statute stands will be the word “Shall.”
        No other logical explanation can be provided for the use of “shall,” other than the
very strong desire to establish a Per Se standard for impairment. In fact, the Legislature
accepted nothing less than a “damn the torpedoes” standard for Schedule I substances. The
question will be, “Will the Supreme Court allow its language in other cases regarding the
sufficiency of evidence be read to establish the Per Se DWI trial?”

N.C.G.S. §20-138.1 was amended such that there are six (6) important areas to review:

        1.      The .08 “deemed sufficient evidence” to prove impairment; and,
        2.      Expansion of “impairment” through proof of “driving with any Schedule I
                controlled substance or its metabolites in blood or urine;” and,
        3.      Blood tests may rebut Intoxilyzer results; and,
        4.      Allows exclusion of Intoxilyzer results if preventative maintenance not
                properly performed; and,
        5.      Bicycles and Lawnmowers are motor vehicles; and,
        6.      Elimination of the “Period of Non-operation” in lieu of Community Service.

§ 20-138.1. Impaired driving.
     (a)    Offense. – A person commits the offense of impaired driving if he drives any
vehicle upon any highway, any street, or any public vehicular area within this State:
             (1)    While under the influence of an impairing substance; or
             (2)    After having consumed sufficient alcohol that he has, at any relevant time
                     after the driving, an alcohol concentration of 0.08 or more. The results of
                     a chemical analysis shall be deemed sufficient evidence to prove a
                     person's alcohol concentration; or
             (3)    With any amount of a Schedule I controlled substance, as listed in
                     G.S. 90-89, or its metabolites in his blood or urine.
     (a1) A person who has submitted to a chemical analysis of a blood sample, pursuant
to G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have,
at a relevant time after driving, an alcohol concentration of 0.08 or more.
     (b)     Defense Precluded. – The fact that a person charged with violating this section is
or has been legally entitled to use alcohol or a drug is not a defense to a charge under this
section.
     (b1) Defense Allowed. – Nothing in this section shall preclude a person from
asserting that a chemical analysis result is inadmissible pursuant to G.S. 20-139.1(b2).
     (c)    Pleading. – In any prosecution for impaired driving, the pleading is sufficient if it
states the time and place of the alleged offense in the usual form and charges that the
defendant drove a vehicle on a highway or public vehicular area while subject to an
impairing substance.
     (d)     Sentencing Hearing and Punishment. – Impaired driving as defined in this section
is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge
                                               15
must shall hold a sentencing hearing and impose punishment in accordance with
G.S. 20-179.
    (e)     Exception. – Notwithstanding the definition of "vehicle" pursuant to
G.S. 20-4.01(49), for purposes of this section the word "vehicle" does not include a horse,
bicycle, or lawnmower.horse."

        Experienced defense lawyers recognize the fact that .08 has always been the standard
of proof, in addition to the other have of the bifurcated language in the Pattern Jury
Instructions.
        Thus far it does not appear the Pattern Jury Instructions have been amended to
recognize the “clarification.” One would be foolhardy to assume prosecutors will not ask
for an amended instruction.

Black’s Law Dictionary defines shall:

          As used in statutes, contracts, or the like, this word is generally imperative or
mandatory. In common or ordinary parlance, and in its ordinary signification, the term
‘shall’ is a word of command, and one which has always or which must be given a
compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is
generally imperative or mandatory. It has the invariable significance of excluding the idea of
discretion, and has the significance of operating to impose a duty which may be enforced,
particularly if a public policy is in favor of this meaning, or when addressed to public
officials, or where a public interest is involved, or where the public or persons have rights
which ought to be exercised or enforced, unless a contrary intent appears.
          But it may be construed as merely permissive or directory (as equivalent to ‘may’), to
carry out the legislative intention and in cases where no right or benefit to any one depends
on its being taken in the imperative sense, and where no public or private right is impaired
by its interpretation in the other sense.”

        What? Does 2 + 2 always = 4? Is that equation an absolute truth or is it subject to
moral relativism? Moral relativism takes the position that moral or ethical propositions do
not reflect absolute and universal moral truths, but instead make claims relative to social,
cultural, historical or personal circumstances. Moral relativists hold that no universal
standard exists by which to assess an ethical proposition's truth. Relativistic positions often
see moral values as applicable only within certain cultural boundaries or in the context of
individual preferences.
        As such, does “shall” mean the Courts and juries of North Carolina are bound to
find guilt on a Per Se standard? If there is evidence of an .08, is guilt “imperative” or
“mandatory?” Is the finder of fact “obliged” to find guilt? Is it “preempted” from
exercising “discretion?” Must a Court “impose a duty” to find guilt?
        Or is the finder of fact merely given the opportunity to exercise its discretion, in that
it “may” find guilt? What was the legislative intention? Let’s not be coy. The purpose and
intent of the “shall be deemed” language was to find more people guilty of Driving While
                                            16
Impaired, at any cost to society. North Carolina seeks to establish the DWI Exception,
where the only Rule to follow is to find guilt.
        The Legislature, seeking to “get tough on crime” has removed the singularly most
important, fundamental principle of American Jurisprudence: a trial by jury. It is taken jury
out of the equation. It has usurped the very sovereignty of the Judiciary and upset the
balance of power between the Legislative, Judicial & Executive branches of government.
Make no mistake, N.C.G.S. §20-138.1 is a massive grab for unchecked power. It vitiates the
role of the Judiciary, making the need for a finder-of-fact superflous. It removes any form
of discretion, directing, if not establishing a moral imperative to find people guilty based on
the findings of a falible piece of machinery.
        The writers of the amended §20-138.1 were monumentally clever. It established a
Per Se standard for Driving While Impaired, removing any chance that the finder-of-fact
could find the operator of the motor vehicle indeed was NOT impaired in reviewing his
actions, mannerisms and dexterities. It says: We don’t care if he was actually impaired. We
only care that the machine reads .08 or higher. We also don’t care if the drugs weren’t
effecting him. We only care that meatbolites from some materials were still in his system at
the time of the blood or urine test.
        Counsel should fight §20-138.1 with resolve and moral fortitude. Good lawyering
will eventually prevail. The Courts, despite the tremendous political pressures, must see the
problems with a Per Se standard. Someone wearing a black robe must stand up against the
Legislature.


          North Carolina v. Fuller
        In February 2006, the North Carolina Court of Appeals published a striking case
entitled North Carolina v. Fuller, 2006 N.C. App. 4003 (2006). In addition to calling into
question at least in part the methods and testimony of the State’s chief expert for all things
“impairment,” (Mr. Paul Glover), the Court reaffirmed the standard of proof for Impaired
Driving cases, citing North Carolina v. Gregory, 154 N.C. App. 718, 721, 572 S.E.2nd 838,
840 (2002):
        “The opinion of a law enforcement officer. . .has consistently been held sufficient
evidence (emphasis added) of impairment.” “An officer’s opinion that a defendant is
appreciably impaired is competent testimony and admissible evidence when it is based on


                                                  17
the officer’s personal observation of an odor of alcohol and faulty driving or other evidence
of impairment.”
        The Court did not say Officer testimony is always right. It did not say juries must
find the defendant guilty based on the Officer’s perceptions. It did not Order the Superior
Court Judge to instruct a particular verdict. It said one and only one thing: A jury may find
guilt on officer opinion alone. That evidence was sufficient to submit to a jury. The Court
did not abuse its discretion in submitting the question to the jury and a jury could proceed
utilizing their common sense, based on life-long experiences and perceptions.
        The Court did not establish the veracity of retrograde extrapolation, but did
comment that such evidence had been properly admitted in the past. It said only that the
Superior Court Judge did not abuse its discretion in admitting such evidence.
        “An abuse of discretion occurs ‘where the court’s ruling is manifestly unsupported
by reason or is so arbitrary that it could not have been the result of reasoned decision. State
v. Hennis, 323 N.C. 279, 285 (1996).”
        In an almost comical “cleaning up” of evidence that may have been improperly
admitted the Court took special effort to note: “Additionally, immediately after Corporal
Flood’s testimony regarding his reliance on the Alco-Sensor results the trial court instructed
the jury to dismiss that statement from their minds and not consider it in deliberations. The
trial court then asked jurors to each raise their hand if they could follow the trial court’s
instruction. All jurors raised their hand in response. Accordingly, this assignment of error
is overruled.”
        One can easily confuse the issue and/or difference between sufficiency of evidence,
to the standard of submitting it to a jury and that of directing a particular verdict. The
standard for submission is relatively minimal.
        In ruling on a motion to dismiss for insufficient evidence, the trial court must
examine whether substantial evidence exists to support the essential elements of the charged
offense. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988).
        “The court must examine the evidence in the light most favorable to the State, giving
the State the benefit of “every reasonable inference and intendment that can be drawn
therefrom.” State v. Barrett, 343 N.C. 164, 173, 469 S.E.2d 888, 893 (1996) (citation omitted).
The court must not grant the motion based on contradictions and discrepancies; “they are
                                                 18
for the jury to resolve.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982)
(citation omitted).
        "If there is substantial evidence--whether direct, circumstantial, or both--to support a
finding that the offense charged has been committed and that the defendant committed it,
the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322
N.C. 349, 358, 368 S.E.2d 377, 383 (1988) (citation omitted).
        The correlation between Fuller and the amended §20-138.1 cannot be missed. The
Legislature borrowed the very language for sufficiency of evidence. It crossed the line
though with the “shall be deemed” addition. This is not a matter of semantics. It is not a
subtle exercise in pedantic thought. The Legislature sent a very clear message to the Courts:
Find people guilty of impaired driving. If not, why then the “shall” language?
        The Legislature knows the training of lawyers, which is in effect the Courts. Every
first year law student recognizes the import of the word “shall.” The definition as taught
removes any question of meaning. It is the strongest legal word out there. Shall is akin to
“Thus sayeth the Lord.” Shall be deemed sufficient = Y’all start finding these people guilty
and stop worrying about if they’re actually mentally or physically impaired.
        The interesting question will be: Are prosecutors going to actually argue we now
have a Per Se standard? Is anyone going to be able to keep a straight face and argue the §20-
138.1 was merely “clarified?” Didn’t we already have a bifurcated standard? Couldn’t the
jury previously find the defendant guilty on the reading alone?
        Another interesting question is: What will the Pattern Jury Instruction be?




          The Pattern Jury Instructions
        A strong argument against changing the Pattern Jury Instructions should be made. If
only a “clarification,” primarily to District Court Judges, why would there need to be a
substantive change to the jury instruction? They may already find a person guilty on reading
alone. There exists no confusion on that point. Is the Legislature telling the jury, “you must
find that person guilty and not consider impairment?”
        Furthermore, are Courts going to remove the language, “you may believe some of
the evidence, none of the evidence or any part of the evidence” for DWI cases alone? Will it
disturb anyone that for DWI cases, the province of the jury will be removed? “You are the
sole judges of the weight to be given any evidence. By this I mean if you decide that certain
                                              19
evidence is believable you must then determine the importance of that evidence in light of all
other believable evidence in the case.”
        “On appeal, this Court reviews jury instructions contextually and in their entirety.”
State v. Crowe, __ N.C. App. __, __, 623S.E.2d 68, 73 (2005). Thus, “[i]f the instructions
'present[] the law of the case in such [a] manner as to leave no reasonable cause to believe
the jury was misled or misinformed,' then they will be held to be sufficient.” Id. (quoting
Jones v. Development Co., 16 N.C. App. 80, 86-87, 191 S.E.2d 435, 440 (1972)). Further, “[t]he
appealing party must demonstrate that the error in the instructions was likely to mislead the
jury.” Id. (emphasis added). “'In a criminal trial the judge has the duty to instruct the jury on
the law arising from all the evidence presented.'” State v. Smith, __ N.C. __, __, 626 S.E.2d
258, 261 (2006) (quoting State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 253 (1985)).
“A trial court must give a requested instruction if it is a correct statement of the law and is
supported by the evidence.” State v. Haywood, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45
(2001) (emphasis added).
        The following two proposed amendments to the Pattern Instruction have been
prepared by the Academy of Trial Lawyers. Frankly, most Courts likely will not accept the
language and it would be better not to change the instruction at all.


Modification to N.C.P.J.I. – Crim. 270.20 and to N.C.P.J.I. Crim. – 270.25.

To be inserted after paragraph (B) under the “And Third” element in each instruction:

(if the evidence tends to show that a chemical test of the defendant’s [breath] [blood] yielded
a result showing an alcohol concentration of .08 or more grams of alcohol per [210 liters of
breath] [100 milliliters of blood] you may find that this evidence, by itself, is sufficient to
establish that the defendant’s actual alcohol concentration was .08 or more grams of alcohol
per [210 liters of breath] [100 milliliters of blood] but you are not required to do so. You
should consider all of the evidence, including the results of any chemical test, in determining
whether the defendant had consumed sufficient alcohol that at any relevant time after the
driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol [per
210 liters of breath] [per 100 milliliters of blood].)

******************************************************************************
Modification to N.C.P.J.I. – Crim. 270.21

To be inserted after paragraph (B) under the “And Third” element:

(if the evidence tends to show that a chemical test of the defendant’s [breath] [blood] yielded
a result showing an alcohol concentration of .04 or more grams of alcohol per [210 liters of
breath] [100 milliliters of blood] you may find that this evidence, by itself, is sufficient to
                                                  20
establish that the defendant’s actual alcohol concentration was .04 or more grams of alcohol
per [210 liters of breath] [100 milliliters of blood] but you are not required to do so. You
should consider all of the evidence, including the results of any chemical test, in determining
whether the defendant had consumed sufficient alcohol that at any relevant time after the
driving the defendant had an alcohol concentration of 0.04 or more grams of alcohol [per
210 liters of breath] [per 100 milliliters of blood].)


          The Schedule I Per Se Standard
§ 90-89. Schedule I controlled substances.
    This schedule includes the controlled substances listed or to be listed by whatever
official name, common or usual name, chemical name, or trade name designated. In
determining that a substance comes within this schedule, the Commission shall find: a high
potential for abuse, no currently accepted medical use in the United States, or a lack of
accepted safety for use in treatment under medical supervision. The following controlled
substances are included in this schedule:
            (1)    Any of the following opiates, including the isomers, esters, ethers, salts
                    and salts of isomers, esters, and ethers, unless specifically excepted, or
                    listed in another schedule, whenever the existence of such isomers,
                    esters, ethers, and salts is possible within the specific chemical
                    designation:
                    a.      Acetyl-alpha-methylfentanyl (N[1-(1-methyl-2-phenethyl)-4-
                             piperidinyl]-N-phenylacetamide).
                    b.       Acetylmethadol.
                    c.       Repealed by Session Laws 1987, c. 412, s. 2.
                    d.      Alpha-methylthiofentanyl
                             (N-[1-methyl-2-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanam
                             ide).
                    e.       Allylprodine.
                    f.       Alphacetylmethadol.
                    g.       Alphameprodine.
                    h.       Alphamethadol.
                    i.       Alpha-methylfentanyl (N-(1-(alpha-methyl-beta-phenyl)
                             ethyl-4-piperidyl)propionalilide;
                             1(1-methyl-2-phenyl-ethyl)-4-(N-propanilido) piperidine).
                    j.       Benzethidine.
                    k.       Betacetylmethadol.
                    l.       Beta-hydroxfentanyl
                             (N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N-phenylpropanami
                             de).
                    m.      Beta-hydroxy-3-methylfentanyl
                             (N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenyl
                             propanamide).
                    n.       Betameprodine.
                    o.       Betamethadol.
                    p.       Betaprodine.
                    q.       Clonitazene.
                    r.       Dextromoramide.
                    s.       Diampromide.
                                                 21
      t.       Diethylthiambutene.
      u.       Difenoxin.
      v.       Dimenoxadol.
      w.       Dimepheptanol.
      x.       Dimethylthiambutene.
      y.       Dioxaphetyl butyrate.
      z.       Dipipanone.
      aa.      Ethylmethylthiambutene.
      bb.      Etonitazene.
      cc.     Etoxeridine.
      dd.      Furethidine.
      ee.     Hydroxypethidine.
      ff.      Ketobemidone.
      gg.     Levomoramide.
      hh.      Levophenacylmorphan.
      ii.      1-methyl-4-phenyl-4-propionox ypiperidine (MPPP).
      jj.     3-Methylfentanyl
               (N-[3-methyl-1-(2-Phenylethyl)-4-Pi-peridyl]-N-Phenylpropanami
               de).
      kk.     3-Methylthiofentanyl
               (N-[(3-methyl-1-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropa
               namide).
      lo .     Morpheridine.
      mm. Noracymethadol.
      nn.      Norlevorphanol.
      oo.      Normethadone.
      pp.      Norpipanone.
      qq. Para-fluorofentanyl
               (N-(4-fluorophenyl)-N-[1-(2-phen-ethyl)-4-piperidinyl]-propanam
               ide.
      rr.      Phenadoxone.
      ss.      Phenampromide.
      tt.      1-(2-phenethyl)-4-phenyl-4-ac etoxypiperidine (PEPAP).
      uu.      Phenomorphan.
      vv.       Phenoperidine.
      ww. Piritramide.
      xx.      Proheptazine.
      yy.     Properidine.
      zz.      Propiram.
      aaa. Racemoramide.
      bbb. Thiofentanyl
               (N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-propanamide.
      ccc. Tilidine.
      ddd. Trimeperidine.
(2)   Any of the following opium derivatives, including their salts, isomers, and
      salts of isomers, unless specifically excepted, or listed in another
      schedule, whenever the existence of such salts, isomers, and salts of
      isomers is possible within the specific chemical designation:
      a.       Acetorphine.
                                22
      b.      Acetyldihydrocodeine.
      c.     Benzylmorphine.
      d.      Codeine methylbromide.
      e.     Codeine-N-Oxide.
      f.      Cyprenorphine.
      g.     Desomorphine.
      h.      Dihydromorphine.
      i.      Etorphine (except hydrochloride salt).
      j.      Heroin.
      k.      Hydromorphinol.
      l.      Methyldesorphine.
      m.      Methyldihydromorphine.
      n.      Morphine methylbromide.
      o.      Morphine methylsulfonate.
      p.      Morphine-N-Oxide.
      q.      Myrophine.
      r.      Nicocodeine.
      s.     Nicomorphine.
      t.      Normorphine.
      u.      Pholcodine.
      v.      Thebacon.
      w.     Drotebanol.
(3)   Any material, compound, mixture, or preparation which contains any
      quantity of the following hallucinogenic substances, including their salts,
      isomers, and salts of isomers, unless specifically excepted, or listed in
      another schedule, whenever the existence of such salts, isomers, and salts
      of isomers is possible within the specific chemical designation:
      a.     3, 4-methylenedioxyamphetamine.
      b.      5-methoxy-3, 4-methylenedioxyamphetamine.
      c.     3, 4-Methylenedioxymethamphetamine (MDMA).
      d.      3,4-methylenedioxy-N-ethylamphetamine (also known as
              N-ethyl-alpha-methyl-3,4-(methylenedioxy)phenethylamine,
              N-ethyl MDA, MDE, and MDEA).
      e.     N-hydroxy-3,4-methylenedioxyamphetamine (also known as
              N-hydroxy-alpha-methyl-3,4-(methylenedioxy)phenethylamine,
              and N-hydroxy MDA).
      f.      3, 4, 5-trimethoxyamphetamine.
      g.     Alpha-ethyltryptamine. Some trade or other names: etryptamine,
              Monase, alpha-ethyl-1H-indole-3- ethanamine, 3-(2-aminobutyl)
              indole, alpha-ET, and AET.
      h.      Bufotenine.
      i.      Diethyltryptamine.
      j.      Dimethyltryptamine.
      k.      4-methyl-2, 5-dimethoxyamphetamine.
      l.      Ibogaine.
      m.      Lysergic acid diethylamide.
      n.      Mescaline.
      o.      Peyote, meaning all parts of the plant presently classified
              botanically as Lophophora Williamsii Lemaire, whether growing
                                23
               or not; the seeds thereof; any extract from any part of such plant;
               and every compound, manufacture, salt, derivative, mixture or
               preparation of such plant, its seed or extracts.
       p.      N-ethyl-3-piperidyl benzilate.
       q.      N-methyl-3-piperidyl benzilate.
       r.       Psilocybin.
       s.      Psilocin.
       t.      2, 5-dimethoxyamphetamine.
       u.      2, 5-dimethoxy-4-ethylamphetamin e. Some trade or other names:
               DOET.
       v.      4-bromo-2, 5-dimethoxyamphetamine.
       w.      4-methoxyamphetamine.
       x.      Ethylamine analog of phencyclidine. Some trade or other names:
               N-ethyl-1-phenylcyclohexylamine, (1- phenylcyclohexyl)
               ethylamine, N-(1-phenylcyclohexyl) ethylamine, cyclohexamine,
               PCE.
       y.      Pyrrolidine analog of phencyclidine. Some trade or other names:
               1-(1-phenylcyclohexyl)-pyrrol idine, PCPy, PHP.
       z.      Thiophene analog of phencyclidine. Some trade or other names:
               1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2- thienyl analog of
               phencyclidine, TPCP, TCP.
       aa.     1-[1-(2-thienyl)cyclohexyl]pyrrolidine; Some other names: TCPy.
       bb.     Parahexyl.
       cc.     4-Bromo-2, 5-Dimethoxyphenethylamine.
(4)    Any material compound, mixture, or preparation which contains any
       quantity of the following substances having a depressant effect on the
       central nervous system, including its salts, isomers, and salts of isomers
       whenever the existence of such salts, isomers, and salts of isomers is
       possible within the specific chemical designation, unless specifically
       excepted or unless listed in another schedule:
       a.      Mecloqualone.
       b.      Methaqualone.
       c.      Gamma hydroxybutyric acid; Some other names: GHB,
               gamma-hydroxybutyrate, 4-hydroxybutyrate, 4-hydroxybutanoic
               acid; sodium oxybate; sodium oxybutyrate.
(5)   Stimulants. – Unless specifically excepted or unless listed in another
       schedule, any material, compound, mixture, or preparation that contains
       any quantity of the following substances having a stimulant effect on the
       central nervous system, including its salts, isomers, and salts of isomers:
       a.     Aminorex. Some trade or other names: aminoxaphen;
               2-amino-5-phenyl-2-oxazoline; or 4,5-dihydro-5-
               phenly-2-oxazolamine.
       b.      Cathinone. Some trade or other names:
               2-amino-1-phenyl-1-propanone, alpha-aminopropiophenone,
               2-aminopropiophenone, and norephedrone.
       c.     Fenethylline.
       d.     Methcathinone. Some trade or other names:
               2-(methylamino)propiophenone,
               alpha-(methylamino)propiophenone, 2- (methylamino)-1-
                                 24
                                   phenylpropan-1-one, alpha-N-methylaminopropiophenone,
                                   monomethylproprion, ephedrone, N-methylcathinone,
                                   methylcathinone, AL- 464, AL-422, AL-463, and UR1432.
                           e.     (+/-)cis-4-methylaminorex |(+/-)cis-4,5-dihydro-4-
                                   methyl-5-phenyl-2-oxazolamine_ (also known as
                                   2-amino-4-methyl-5-phenyl-2-o xazoline).
                           f.      N,N-dimethylamphetamine. Some other names:
                                   N,N,alpha-trimethylbenzeneethaneamine;
                                   N,N,alpha-trimethylphenethyla mine.
                           g.     N-ethylamphetamine. (1971, c. 919, s. 1; 1973, c. 476, s. 128; c.
                                   844; c. 1358, ss. 4, 5, 15; 1975, c. 443, s. 1; c. 790; 1977, c. 667, s.
                                   3; c. 891, s. 1; 1979, c. 434, s. 1; 1981, c. 51, s. 9; 1983, c. 695, s. 1;
                                   1985, c. 172, ss. 1-3; 1987, c. 412, ss. 1-5; 1989 (Reg. Sess., 1990),
                                   c. 1040, s. 1; 1993, c. 319, ss. 1, 2; 1995, c. 186, ss. 1-3; c. 509, s.
                                   135.1(c); 1997-456, ss. 12, 27; 1999-165, s. 1; 2000-140, s. 92.2(a).)

         Schedule I substances are roughly correlated with those enumerated by the United
States government, primarily through the Drug Enforcement Agency. To be fair, the nature
of the substances can at times be deemed “designer.” The specific chemistry of any
particular impairing substance can be simply modified, with an exhaustive number of
permutations from the base substances. As such, base levels of substances and their
corresponding “salts” have are enumerated to capture anything new the creative drug
chemists devise.
         The United States Code defines “(a) Schedule I shall consist of the drugs and other
substances, by whatever official name, common or usual name, chemical name, or brand
name designated, listed in this section. Each drug or substance has been assigned the DEA
Controlled Substances Code Number set forth opposite it.”
         Schedule I drugs are primarily:
                      1.        Opiates
                      2.        Opium Derivatives
                      3.        Hallucinogenic Substances
                      4.        Depressants
                      5.        Stimulants
         Clearly the Legislature recognized the danger of Schedule I substances; yet, what
remains to be seen is whether the Courts are going to hold people responsible under the
Schedule I Per Se standard.
(3)     With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in
his blood or urine.
                                                       25
          The problem is, in addition to some very toxic, dangerous substances, a substantial
percentage of the population may be legally prescribed the medications and/or have ingested
the substances through over-the-counter preparations or even through consuming certain
foods.
(b)      Defense Precluded. – The fact that a person charged with violating this section is or has been legally
entitled to use alcohol or a drug is not a defense to a charge under this section.
          One would be hard pressed to argue against operating a motor vehicle while subject
to MDA / MDMA or LSD. At the same time, would lemon poppy seed cake show as a
derivative of opiates? Are patients who have been legally prescribed minimal doses of
morphine or hydrocodone breaking the law, simply for having something in their system
upon arrest? The answer is: Yes. That is the very problem with the Per Se standard. It does
not distinguish between those impaired by certain substances and those who have
extraordinarily minimal amounts in their system.
                   Under §20-138.1 as presently written any amount, whether virulent or trace,
directs the finder of fact to verdict. That verdict is Per Se and that verdict is most certainly is
“guilty.”




             Rebutting Evidence
(a1)     A person who has submitted to a chemical analysis of a blood sample, pursuant to
G.S. 20-139.1(d), may use the result in rebuttal as evidence that the person did not have, at a relevant time
after driving, an alcohol concentration of 0.08 or more.
(b1)     Defense Allowed. – Nothing in this section shall preclude a person from asserting that a chemical
analysis result is inadmissible pursuant to G.S. 20-139.1(b2).
          At some point in the legislative process, someone must have recognized some of the
problems associated with establishing a Per Se standard. Although almost entirely a legal
fiction if not practical impossibility, defendants can seek to prove their innocence by
presenting rebuttal evidence.
          Black’s Law Dictionary defines “rebut” as “In pleading and evidence, to defeat,
refute, or take away the effect of something.” For what other purpose would a Defendant
present rebuttal evidence, other than to attack the presumption of his guilt? If the State
argues §20-138.1 is merely a clarification, how does it justify the fact that the presumption is


                                                        26
of Defendant’s guilt. . .which he must rebut through the admission of proper evidence or be
found guilty.
         As stated, sections (a1) and (b1) are pedantical. In the real world, no one obtains
blood tests after arrest. The State very well knows this and argues with great effect that any
test taken so longer after operation is irrelevant.
         Defendant's statutory right under pre-December 1, 2006 N.C.G.S. § 20-16.2(a)(5)
and N.C.G.S. § 20-139.1(d) to assistance in obtaining a blood test after his submission to a
chemical analysis was not violated in a driving while impaired case, because: (1) an officer's
duty goes no further than allowing a defendant access to a telephone and allowing medical
personnel access to a driver held in custody. State v. Bumgarner, 97 N.C. App. 567, 573, 389
S.E.2d 425, 429, disc. review denied, 326 N.C. 599, 393 S.E.2d 873 (1990).




            PART IX. ADMISSIBILITY OF CHEMICAL ANALYSES
             SECTION 16.

G.S. 20-139.1 reads as rewritten:

"§ 20-139.1. Procedures governing chemical analyses; admissibility; evidentiary
           provisions; controlled-drinking programs.

          (b5) Subsequent Tests Allowed. – A person may be requested, pursuant to G.S. 20-16.2, to
submit to a chemical analysis of the person's blood or other bodily fluid or substance in addition to or in lieu
of a chemical analysis of the breath, in the discretion of the charging a law enforcement officer. If a subsequent
chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied
consent rights in accordance with G.S. 20-16.2(a). A person's willful refusal to submit to a chemical analysis
of the blood or other bodily fluid or substance is a willful refusal under G.S. 20-16.2.

           (c)     Withdrawal of Blood and Urine for Chemical Analysis. – Notwithstanding any other
provision of law, When when a blood or urine test is specified as the type of chemical analysis by the charging
a law enforcement officer, only a physician, registered nurse, emergency medical technician, or other qualified
person may shall withdraw the blood sample. sample and obtain the urine sample, and no further
authorization or approval is required. If the person withdrawing the blood or collecting the urine requests
written confirmation of the charging law enforcement officer's request for the withdrawal of blood, blood or
collecting the urine, the officer shall furnish it before blood is withdrawn. withdrawn or urine collected. When
blood is withdrawn or urine collected pursuant to a charging law enforcement officer's request, neither the
person withdrawing the blood nor any hospital, laboratory, or other institution, person, firm, or corporation
employing that person, or contracting for the service of withdrawing blood, may be held criminally or civilly
liable by reason of withdrawing that blood, except that there is no immunity from liability for negligent acts or
omissions.


                                                       27
        (d)     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 shall assist the person in contacting someone to
administer the additional testing or to withdraw blood, and shall allow access to the person
for that purpose. Nothing in this section shall be construed to prohibit a person from
obtaining or attempting to obtain an additional chemical analysis. If the person is not
released from custody after the initial appearance, the agency having custody of the person
shall make reasonable efforts in a timely manner to assist the person in obtaining access to a
telephone to arrange for any additional test and allow access to the person in accordance
with the agreed procedure in G.S. 20-38.4. 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.

    (d1) Right to Require Additional Tests. – If a person refuses to submit to any test or
tests pursuant to this section, any law enforcement officer with probable cause may, without
a court order, compel the person to provide blood or urine samples for analysis if the officer
reasonably believes that the delay necessary to obtain a court order, under the circumstances,
would result in the dissipation of the percentage of alcohol in the person's blood or urine.
    (d2) Notwithstanding any other provision of law, when a blood or urine sample is
requested under subsection (d1) of this section by a law enforcement officer, a physician,
registered nurse, emergency medical technician, or other qualified person shall withdraw the
blood and obtain the urine sample, and no further authorization or approval is required. If
the person withdrawing the blood or collecting the urine requests written confirmation of
the charging officer's request for the withdrawal of blood or obtaining urine, the officer shall
furnish it before blood is withdrawn or urine obtained.
    (d3) When blood is withdrawn or urine collected pursuant to a law enforcement
officer's request, neither the person withdrawing the blood nor any hospital, laboratory, or
other institution, person, firm, or corporation employing that person, or contracting for the
service of withdrawing blood, may be held criminally or civilly liable by reason of
withdrawing that blood, except that there is no immunity from liability for negligent acts or
omissions. The results of the analysis of blood or urine under this subsection shall be
admissible if performed by the State Bureau of Investigation Laboratory or any other
hospital or qualified laboratory.




          BIG BROTHER / BRAVE NEW WORLD

PART X. IMPROVED ACCESS TO MEDICAL RECORDS IN IMPAIRED
DRIVING CASES – ACCIDENTS

CHAPTER 90 OF THE GENERAL STATUTES IS AMENDED BY ADDING A
NEW SECTION TO READ:
"§ 90-21.20B. Access to medical information for law enforcement purposes.
                                              28
    (a)      Notwithstanding any other provision of law, if a person is involved in a vehicle
crash:
             (1)    Any health care provider who is providing medical treatment to the
                     person shall, upon request, disclose to any law enforcement officer
                     investigating the crash the following information about the person: name,
                     current location, and whether the person appears to be impaired by
                     alcohol, drugs, or another substance.
            (2)     Law enforcement officers shall be provided access to visit and interview
                     the person upon request, except when the health care provider requests
                     temporary privacy for medical reasons.
            (3)     A health care provider shall disclose a certified copy of all identifiable
                     health information related to that person as specified in a search warrant
                     or an order issued by a judicial official.
    (b)     A prosecutor or law enforcement officer receiving identifiable health information
under this section shall not disclose this information to others except as necessary to the
investigation or otherwise allowed by law.
    (c)     A certified copy of identifiable health information, if relevant, shall be admissible
in any hearing or trial without further authentication.
    (d)     As used in this section, "health care provider" has the same meaning as in
G.S. 90-21.11."
            SECTION 18. G.S. 8-53.1 reads as rewritten:
"§ 8-53.1. Physician-patient and nurse privilege waived in child abuse.abuse;
            disclosure of information in impaired driving accident cases.
    (a)     Notwithstanding the provisions of G.S. 8-53 and G.S. 8-53.13, the
physician-patient or nurse privilege shall not be a ground for excluding evidence regarding
the abuse or neglect of a child under the age of 16 years or regarding an illness of or injuries
to such child or the cause thereof in any judicial proceeding related to a report pursuant to
the North Carolina Juvenile Code, Chapter 7B of the General Statutes of North Carolina.
    (b)     Nothing in this Article shall preclude a health care provider, as defined in
G.S. 90-21.11, from disclosing information to a law enforcement agency investigating a
vehicle crash under the provisions of G.S. 90-21.20B."

    There is not much to discuss on that point. There are two types of cases where the
centuries old, common law maxim of Physician / Patient privilege is specifically excluded:
Child Sex / Rape & DWI’s involving an accident.




            TODAY’S SERMON: WHY WE NEED A GOLD STANDARD

          The following “conclusion” was originally printed in 2003 on a seminar involving the

Intoxilyzer 5000. It is all the more true today.



                                               29
        The primary problem with all DWI evidence, whether collected by individuals or

through technical gadgetry, is inconsistency. Presently the State of North Carolina uses a

hodgepodge of different testing procedures that are based, in part, on faulty or antiquated

assumptions. The NHTSA has become a pariah of sorts with defense counsel because of its

apparent bias and conflicted interests. To be sure, there are problems with the NHTSA and

its “scientifically verified testing” techniques.

        At the same time, the NHTSA is the only formalized agency that is at least trying to

understand the science of impaired driving and there from promulgate rules of consistency.

This paper, together with the one entitled “Hop-Hop, Fib-Fib, Oh What a Relief It Is” has

relied extensively on the Officer Training and Instruction Manuals as published by the

NHTSA. There is a reason for that, to wit: The State of North Carolina has for all practical

purposes abdicated its responsibility to recognize advances in technology and/or otherwise

ensure fairness in accusing others of impaired driving. There is no other Gold Standard or

centralized authority in North Carolina that is actually doing anything.

        Judges, Prosecutors and Defense Counsel are relegated to ignorance and gut instincts

in practicing DWI law. As faulted as the NHTSA methodologies might be, they are

established; they are consistent; they are not subject to interpretation; they cannot be

modified; and they are at least in part based on logic and scientific data.

        The NHTSA is the closest thing we have to a Gold Standard. The NCAC leaves

much to be desired. N.C.G.S. §20-138.1 and §16.3 are convoluted and inconsistent.

Presently the laws are written to appease politicians, not to promote justice or prevent

discrepancies. Our judiciary has done its utmost to fix the system; yet, recent opinions

border on bench legislation. If we as a state cannot or will not make the effort to effectuate

objectivity, then we should rely on the NHTSA. . .to start.



                                                    30
          SOURCES OF INFORMATION

        These materials were prepared for Continuing Legal Education, in an attempt to

provide a nuts and bolts understanding of Alcohol Screening & Testing methodologies.

Numerous reference sources were utilized, with either direct or partial portions of

information placed directly into the text. Personally, I started with HowStuffWorks.com to

develop a basic knowledge of the GC/MS, Blood Testing, Urine Testing, Respiration,

Metabolism, et al. Many thanks are given to Dr. Stefan Rose, M.D., who has taken the time

to both research and explain the science and methodology of forensic toxicology.

        I am a lawyer, not a credentialed scientist. At the same time, no attorney (prosecutor

or defense counsel) practicing in this area of law should be ignorant of the impact of science.

If we as attorneys rely on technology to determine the fate of lives, we should make a

concerted effort to understand the machinery and confirm its reliability. In an organized

Democracy, we should demand no less of the government.

        DWI’s carry very real consequences, penalties and stigmas. We owe it to the people

of North Carolina to make sound, thoughtful decisions based upon the information

presently available. We should not be afraid to say, “this technology is out-of-date.” Justice

is blind; she shows no favor or preference. It is not our duty to tip the scales of justice to

assuage newspaper writers or editorial columns.

        This paper is not intended as a formalized publication necessitating footnotes. If you

have additional questions, I encourage you to search out the following sources and then

make up your mind:

1.      Caldwell, J. P. and Kim, N. D., "The Response of the Intoxilyzer 5000 to Five

Potential Interfering Substances," Journal of Forensic Sciences, Vol. 42, No. 6, 1997: 1080-1087.

2.      CMI Operator's Manual, Intoxilyzer 5000 Alcohol Breath Analysis Instrument,
                                                31
CMI/MPH, Owensboro, KY 1989.

3.      Cole-Harding S. Wilson JR. "Ethanol metabolism in men and women." Journal of

Studies on Alcohol. 48(4), 1987 Jul.:380-7.

4.      Cowan JM Jr. McCutcheon Jr. Weathermon A., Institution Crime Laboratory

Division, Texas Department of Public Safety, Tyler. "The response of the Intoxilyzer

4011AS-A to a number of possible interfering substances." Journal of Forensic Sciences 35(4),

1990 Jul.: 797-812.

5.      Dubowski KM. “Evaluation of commercial breath-alcohol simulators: further

studies.” Journal of Analytical Toxicology. 15(5), 1991 Sep-Oct.: 272-5.

6.      Dubowski KM. "Quality assurance in breath-alcohol analysis."

Journal of Analytical Toxicology. 18(6), 1994 Oct.: 306-11.

7.      Dubowski, K.M. "Studies in breath alcohol analysis: Biological factors" Z. Rechtsmed.

76, 1975. 93-117

8.      Dubowski, KM. "Absorption, distribution and elimination of alcohol: highway safety

aspects." Journal of Studies on Alcohol - Supplement. 10, 1985 Jul.: 98-108.

9.      Fox GR. Hayward JS. "Effect of hypothermia on breath-alcohol analysis." Journal of

Forensic Sciences. 32(2), 1987 Mar.:320-5.

10.     Gullberg RG. "Differences between roadside and subsequent evidential breath

alcohol results and the forensic significance." Journal of Studies on Alcohol. 52(4), 1991 Jul.:

11.     Gullberg RG. McElroy AJ. "Comparing roadside with subsequent breath alcohol

analyses and their relevance to the issue of retrograde extrapolation." 57(2), 1992 Dec.: 193-

201.

12.     Gullberg RG.; "Applying a data acquisition system to the analysis of breath alcohol

profiles." Journal - Forensic Science Society. 29(6), 1989 Nov-Dec.: 397-405.

13.     Hlastala MP. " The alcohol breath test .... a review" JApp Physiol. V84 n2 Feb 1998:
                                                 32
401-8.

14.      Jones, A.W. "Quantitative measurements of the alcohol concentration and the

temperature of breath during a prolonged exhalation" Acta Physiologica Scandinavica. 114, 1982:

15.      Jones, AW. "Determination of liquid/air partition coefficients for dilute solutions of

ethanol in water, whole blood, and plasma" Journal of Analytical Toxicology. 7(4), 1983 July-

Aug.:193-7.

16.      Jones, AW. Beylich KM, Bjorneboe A. Ingum J. Morland J. "Measuring ethanol in

blood and breath for legal purposes: variability between laboratories and between breath-test

instruments." Clinical Chemistry. 38(5), 1992 May: 743-7.

17.      Labianca D.A. and Simpson G., Medicolegal Alcohol Determination: Variability of

the Blood-to-Breath-Alcohol Ratio and Its Effect on Reported Breath-Alcohol

Concentrations, Eur. J. Clin. Chem. Clin. Biochem., Vol. 33, 1995: 919-925.

18.      Logan B.K., Gullberg R.G and Elenbaas J.K, "Isopropanol interference with breath

alcohol analysis: a case report." Journal of Forensic Sciences. 39(4), 1994 Jul.: 1107-11,

18.      Martin, E. Moll W. Schmid P. Dettli L. "The pharmacokinetics of alcohol in human

breath, venous and arterial blood after oral ingestion." European Journal of Clinical

Pharmacology. 26(5), 1984: 619-26.

19.      Memari B., Variables Affecting the Analytical Precision and Accuracy of the

Intoxilizer 5000, M.S. in Chemistry Thesis, Florida International University, 1999.

Moore R., Journal of Analytical Toxicology, Vol. 15, 1991:346-347.

20.      Ohlsson J. Ralph DD. Mandelkon MA. Babb AL. Mastala MP. "Institution

Department of Physiology, University of Washington, Seattle 98195.; Accurate measurement

of blood alcohol concentration with isothermal rebreathing." Journal of Studies of Alcohol.

51(1),1990 Jan.; 6-13.



                                                  33
21.     Thompson, RQ., "The Thermodynamics of Drunk Driving" J. Chem. Educ.,

74,1997:532-536.

22.     Watkins, RL. Adler EV. "Institution Phoenix Crime Detection Laboratory, AZ. The

effect of food on alcohol absorption and elimination patterns." Journal of Forensic Sciences.

38(2), 1993 Mar:285-91.

23.     Winek, CL. Esposito FM. "Blood Alcohol concentrations: factors affecting

predictions." Legal Medicine. 1985: 34-61.

24.     Murphy KL. "The rate and kinetic order of ethanol elimination. Forensic Science

International." 25(3), 1984 Jul.: 159-66.

25.     HowStuffWorks.com




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