State v. Roberts, 237 N.C. App. 551 (Dec. 2, 2014)

The trial court properly denied the defendant’s motion to suppress the results of the chemical analysis of his breath. The defendant argued that the officer failed to comply with the statutory requirement of a 15 minute “observation period” prior to the administration of the test. The observation period requirement ensures that “a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” However, that “nothing in the relevant regulatory language requires the analyst to stare at the person to be tested in an unwavering manner for a fifteen minute period prior to the administration of the test.” Here, the officer observed the defendant for 21 minutes, during which the defendant did not ingest alcohol or other fluids, regurgitate, vomit, eat, or smoke; during this time the officer lost direct sight of the defendant only for very brief intervals while attempting to ensure that his right to the presence of a witness was adequately protected. As such, the officer complied with the observation period requirement.