The State’s failure to accord a defendant his or her statutory implied consent rights as set forth in G.S. 20-16.2 may render the results of any ensuing breath test inadmissible. When a defendant moves to suppress breath test results based on such a violation, questions frequently arise regarding whether the State bears the burden of demonstrating compliance with implied consent procedures or whether the defendant bears the burden of proving a statutory violation. The answer, as with so many things, depends on the nature of the alleged violation. Here’s my take on how the burdens play out in various contexts. Notification of Rights. The State bears the burden of establishing that the defendant was notified of his or her statutory implied consent rights pursuant G.S. 20-16.2. See State v. Shadding, 17 N.C. App. 279 (1973) (holding that State's failure to establish that the defendant was advised of his statutory rights following defendant's objection to the admission of his breath test results on the basis that he had not been accorded those rights rendered the results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (failure of State to establish that officer advised defendant of his right to have an additional test administered by a qualified person of his own choosing rendered breath test result inadmissible). Right to Delay Testing for 30 minutes. Among the implied consent rights is the right to call an attorney for advice and to select a witness to view the testing procedures. G.S. [...]
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