Pursuant to S.L 2016-10 (H.B. 357), North Carolina has implemented some slightly different procedures for breath & blood test evidence admissibility in DWI cases. These changes will take effect for trials commencing on / after October 01, 2016.
N.C.G.S. 20-139.1(a) governs the admissibility regarding a person's alcohol concentration or the presence of an impairing substance via a chemical analysis. Basically, N.C.G.S. G.S. 20-139.1 requires that breath tests be (1) performed by a person with a DHHS permit on a breath-testing instrument that has been properly maintained, (2) that duplicate sequential breath samples be tested, and (3) that the results from those samples not differ by more than 0.02. Blood or urine samples must be analyzed by an approved laboratory pursuant to the statute.
A common legal issue in Charlotte DWI cases involves the "notice and demand" provisions of the statute. In two instances, N.C.G.S. 20-139.1 allows the District Attorney to introduce the chemical analyst's affidavit without his / her testimony. A third instance allows the District Attorney to introduce the chain of custody documentation without the signatures. These notice and demand provisions basically waive the Defendant's right to confront these witnesses, unless the Defendant timely asserts his / her objection.
The two new procedures:
First, N.C.G.S. 20-139.1 will now require the Charlotte District Attorney to provide blood / urine test results within fifteen (15) business days of receiving the report to avail itself of the notice and demand procedures. The District Attorney will also have fifteen (15) business days to provide the chain of custody statement and the chemical analyst's affidavit to the Defendant to utilize the notice and demand procedures.
Practically, I can certainly imagine District Attorneys arguing about these requirements. However, I think there is a real argument that appropriate production of such evidence will actually benefit the efficient administration of cases and benefit District Attorneys who actually operate in a reasonable manner. Furthermore, I believe the State has a legal and ethical obligation to produce this documentation in a timely manner.
Second, the Defendant's written objection (or failure to file a written objection) pursuant to the statute will now remain in effect at any subsequent proceedings. So, if a Defendant fails to demand the appearance of a witness within five (5) business days of the first proceeding for which the District Attorney provided notice, the Defendant cannot subsequently demand such appearance of the witness (he has lost that right).
I have already seen at least one complaint from the defense bar that this amendment prematurely imposes the potential to lose a right to confront witnesses, even before a hearing possibly occurs. I can certainly see the point of that argument. I also understand that the current legislature is going to continue passing legislation that significantly undermines individual liberties, in order to promote their obvious agendas. One of the tasks of a effective litigator is to carefully determine how to best assist your clients given the current laws and factors you have to work with. For instance, in Charlotte, I file an objection regarding these notice and demand provisions in every DWI case to protect my client's interests. While I understand the argument against such, I also obviously have a reason for doing so, and the practice has worked thus far. As a criminal attorney, I'm working to protect my clients here in Charlotte as best I practically can, despite what the legislature in Raleigh is doing.