In this Pitt County case, defendant appealed his convictions for driving while impaired and speeding, arguing several errors including (1) admitting evidence of the speed results of the radar, (2) admitting video evidence of the advisement of his Miranda rights, (3) denying his motion to suppress, and (4) admitting evidence of the Intoxilyzer EC/IR II breath test result. The Court of Appeals found no error in (1)-(3), but because the State did not lay the proper foundation in (4), defendant was granted a new trial.

In June of 2019, defendant was pulled over late at night for speeding. The officer smelled the odor of alcohol on defendant, and defendant admitted he had consumed an alcoholic drink before driving. The officer asked defendant to get out of the vehicle and conducted HGN and VGN tests, as well as a portable breath test. Based on his admission of drinking and the officer’s observations, defendant was arrested, read his Miranda rights, and taken to the detention center for an Intoxilyzer EC/IR II breath test. When defendant reached trial, video of the stop and evidence of the breath test results were admitted over defendant’s objections.

Beginning with (1), defendant argued error because “the State failed to elicit the exact name of the agency that approved the radar model, issued the operator’s certificate, and inspected the device.” Slip Op at 5. The Court of Appeals first noted that the North Carolina Criminal Justice Education and Training Standards Commission certified and approved the use of radar and other speed-measuring instruments, and then rejected defendant’s argument that the officer was required to specifically identify the commission’s training and approval when testifying. The court explained that “there is no essential talismanic phrase” and “when the witness provides sufficiently specific testimony permitting the trial court to logically conclude compliance” there is no error in admitting the testimony. Id. at 10.

Moving to (2), defendant argued that admitting video of the advisement of his Miranda rights violated his Fifth Amendment rights. The court noted that the video was admitted to show professionalism and proper procedures after defense counsel questioned portions of the field sobriety test, and that the video was cut off immediately after advisement of the rights. Establishing that “nothing in our precedents indicates that the admission of the reading of Miranda rights, standing alone, constitutes error,” the court concluded that the State did not use the video to use defendant’s silence against him and that admission of the video was not error. Id. at 12.

Reaching (3), the court first explored the HGN test administration. Defendant argued the test was inadmissible because the officer did not follow the NHTSA Manual’s administration instructions. The court found no error, looking to the questioning by the State and the actual requirements of the manual and finding no issues. The court then considered whether the totality of the circumstances supported probable cause for arrest, concluding “the trial court’s order detailed sufficient findings to support the trooper’s reasonable belief that Defendant consumed alcohol, drove in a faulty manner, and displayed other indicia of impairment.” Id. at 17. The court also found no error in allowing video of a portable breath test even though the results were excluded from evidence, as the trial court instructed the jury to only consider the video for defendant’s “demeanor and behavior.” Id. at 18.  

Finally in (4), the court concluded it was error to allow the State to introduce evidence of defendant’s Intoxilyzer breath test without showing the two consecutively collected breath samples complied with the applicable rules for administering the test. While the State elicited testimony from the officer about the breath test procedures, the record did not show compliance with the applicable North Carolina DHHS rules found in the N.C. Administrative Code. The court explained that “noticeably absent from the record is any evidence from which the trial court could have gleaned the foundational requirement that the two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02.” Id. at 20-21. The court observed that “[t]estimony simply noting the test is performed in accordance with the rules of DHHS could have met this requirement; yet the record is completely devoid of such evidence.” Id. at 21. Because the record lacked this evidence, the breath test lacked proper foundation and admitting it was error. The State argued that whiting out the second test result was done at defendant’s request and that this represented invited error. The court disagreed, explaining that nothing in the record showed the trial court’s knowledge of the second test or that it complied with DHHS requirements, meaning “the State simply did not meet the minimal requirements of [G.S.] 20-139.1(b).” Id. at 22.