The court of appeals ruled this week in State v. Shockley that alcohol concentration readings from two of four attempted breath samples collected within 18 minutes of one another met the “consecutively administered tests” requirement for admissibility of a chemical analysis pursuant to former G.S. 20-139.1(b3). (As amended in 2006, the provision now requires “at least duplicate sequential breath samples.”) Shockley was arrested on September 28, 2006, for driving while impaired and taken to the county jail for a breath test. As required by the administrative regulations incorporated by reference into former and current G.S. 20-139.1, the chemical analyst read Shockley his implied consent rights, observed him for fifteen minutes, verified the accuracy of the instrument, and then asked Shockley to blow into the mouthpiece. (These tests were conducted on an Intoxilyzer Model 5000. Those instruments since have been replaced by the Intoximeter, Model Intox EC/IR II.) Shockley’s breath test, administered at 6:05 a.m., revealed an alcohol concentration of 0.16. He then blew a second time, but failed to provide sufficient breath for analysis. Shockley said an exposed nerve in his tooth made it too painful to blow. The operational procedures for the Intoxilyzer 5000 specified that subsequent tests be administered “as soon as feasible” by starting the process over. The chemical analyst waited fifteen minutes before giving Shockley another test. At 6:23 a.m., Shockley provided another breath sample, revealing an alcohol concentration of 0.15. The chemical analyst asked for another sample. Shockley again failed to provide sufficient breath. At 6:33 [...]
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