State v. Cole, ___ N.C. App. ___, 822 S.E.2d 456 (Nov. 20, 2018)

In this DWI case, the trial court did not err by denying the defendant’s motion to suppress intoxilyzer results. The defendant argued that the trial court improperly concluded that the officer was not required, under G.S. 20-139.1(b5), to re-advise him of his implied consent rights before administering a breath test on a second machine. The defendant did not dispute that the officer advised him of his implied consent rights before he agreed to submit to a chemical analysis of his breath; rather, he argued that because the test administered on the first intoxilyzer machine failed to produce a valid result, it was a “nullity,” and thus the officer’s subsequent request that the defendant provide another sample for testing on a different intoxilyzer machine constituted a request for a “subsequent chemical analysis” under G.S. 20-139.1(b5). Therefore, the defendant argued, the officer violated the defendant’s right under that statute to be re-advised of implied consent rights before administering the test on the second machine. The court disagreed, finding that G.S. 20-139.1(b5) requires a re-advisement of rights only when an officer requests that a person submit to a chemical analysis of blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of breath. Here, the officer’s request that the defendant provide another sample for the same chemical analysis of breath on a second intoxilyzer machine did not trigger the re-advisement requirement of G.S. 20-139.1(b5).