DWI law scholars, answer the following question. Are the results of all breath tests that were administered to the defendant admissible in an implied consent case? Yes, if the results from any two consecutively collected breath samples do not differ from each other by more than 0.02. No, only the two consecutively collected breath samples that do not differ from each other by more than 0.02 may be introduced. No, only the lower of two consecutively collected breath samples that do not differ from each other by more than 0.02 may be introduced. The answer? 1. The relevant authority? G.S. 20-139.1(b3). This one should have been easy for anyone practicing DWI law. G.S. 20-139.1(b3) was amended effective for offenses committed on or after December 1, 2006 to provide that "[t]he results of the chemical analysis of all breath samples are admissible if the test results from any two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02.” The court of appeals implicitly acknowledged this in State v. Cathcart, 742 S.E.2d 321, 325 (N.C. App. 2013), referring to admissibility of “results.” See also State v. Arrington, __ N.C. App. __, 714 S.E.2d 777, 780 (2011) (noting that the trial evidence included “[t]wo separately administered Intoxilyzer Tests [that] indicated defendant’s blood-alcohol level to be .08”). Why ask? Despite the straightforward language of G.S. 20-139.1(b3) and its presence on the books for nearly seven years, there still seems to be a fair amount of confusion in [...]
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