If a 0.15 alcohol concentration is not admitted at trial or sentencing, does it count for limited privilege purposes? I discussed in an earlier post circumstances in which the Confrontation Clause may bar the admission at a sentencing hearing in an impaired driving case of a chemical analysis offered to prove an aggravating factor based on a 0.15 alcohol concentration. If the Confrontation Clause does require the exclusion of such evidence at sentencing upon objection by the defendant when the chemical analyst is not present to testify, it only operates to exclude the evidence for purposes of establishing an aggravating factor under the statute, which functions as the equivalent of an element of the offense of impaired driving. In contrast, to the extent the chemical analysis is offered to inform the judge's exercise of discretion within the level of impaired driving established without reference to chemical analysis, the Confrontation Clause would not apply. This latter scenario is akin to use of evidence to inform sentencing discretion approved in State v. Sings, 182 N.C. App. 162 (2007), discussed in my earlier post. I'd like to follow up by addressing how the exclusion of chemical analysis results based on the Confrontation Clause may affect the issuance of a limited driving privilege for a defendant with an alcohol concentration of 0.15 or more. G.S. 20-179.3(c1) requires that any limited driving privilege issued to a person "convicted of an impaired driving offense with an alcohol concentration of 0.15 or more at the time of the [...]
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