State v. Tew, 405A89

• Decision Date: 13 June 1990
• Docket Number: No. 405A89,405A89
• Citation: 392 S.E.2d 603,326 N.C. 732
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charlie TEW.

Page 603

392 S.E.2d 603

326 N.C. 732

STATE of North Carolina v. Charlie TEW.

No. 405A89.

Supreme Court of North Carolina.

June 13, 1990.

Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Special Deputy Atty. Gen., Raleigh, for the State-appellant.

Barnes, Braswell, Haithcock & Warren, P.A. by R. Gene Braswell and Glenn A. Barfield, Goldsboro, for defendant-appellee.

MEYER, Justice.

The issue presented in this case requires us to interpret certain provisions of N.C.G.S. § 20-139.1, the part of our Motor Vehicle Act governing the performing of chemical analysis of a driver's alcohol concentration and the admissibility into evidence of the results of such tests.

On 22 July 1987, defendant was arrested for driving while impaired (DWI). Defendant pled not guilty in district court and was adjudged guilty by Judge Joseph E. Setzer. Defendant appealed to the superior court for a trial de novo, entering a plea of not guilty. After impanelment of the jury, but prior to introduction of evidence, defendant orally moved to suppress the results of a chemical analysis performed at the time of his arrest. The court held a voir dire hearing on the motion, at which time Judge Samuel T. Currin denied defendant's motion to suppress. Defendant then entered a plea of guilty to DWI, specifically reserving his right to appeal the denial of his motion to suppress. Judge Currin found defendant guilty and sentenced him to level two punishment for the offense. Defendant appealed to the Court of Appeals. That court reversed the holding of the trial court and held that defendant's motion to suppress the test results should properly have been granted. Judge Cozort dissented from the majority vote. The State appeals to this Court as of right. This Court allowed the State's request for writ of supersedeas and stay on 25 September 1989. We now reverse the decision of the Court of Appeals.

N.C.G.S. § 15A-979(b) provides that "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." Although not a part of the statute, the official commentary to that section provides some insight into the rationale and consequences of this provision:

[Subsection (b) ] permits a defendant whose motion to suppress was denied to plead guilty and then appeal the ruling of the judge on the motion. If the appellate court sustains the ruling on the motion, the conviction stands; if the ruling on the motion is overturned, then the defendant is entitled to a new trial at which the evidence would be suppressed. This provision is intended to prevent a defendant whose only real defense is the motion to suppress from going through a trial simply to preserve his right of appeal. This section on its face would apply whether the appeal is from district court or superior court, though the right of trial de novo already guarantees the defendant the right to renew motions in superior court--even after a plea of guilty. If the superior court judge reaffirms the ruling denying the motion to suppress, however, the Constitution of North Carolina may force the defendant either to plead guilty in superior court or go to trial....

N.C.G.S. § 15A-979 official commentary (1988).

This Court has held that when a defendant intends to appeal from the denial of a suppression motion pursuant to this section, he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute. State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980). In the case sub judice, defendant did in fact specifically reserve his right to appeal upon entering his plea of guilty. Consequently, the path has been paved for us now to address the substantive issue presented.

The State takes issue with the Court of Appeals' interpretation of the relevant statute, N.C.G.S. § 20-139.1 (1983). In relevant part, this statute provides as follows:

A chemical analysis, to be valid, must be performed in accordance with the provisions of this section. The chemical analysis must be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Human Resources for that type of chemical analysis. The Commission for Health Services is authorized to adopt regulations approving satisfactory methods or techniques for performing chemical analyses....

N.C.G.S. § 20-139.1(b) (1983).

In conjunction with this provision, subsection (b3) provides in part:

By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. Those regulations must provide:

....

(2) That the test results may only be used to prove a person's particular alcohol concentration if:

a. The pair of readings employed are from consecutively administered tests; and

b. The readings do not differ from each other by an alcohol concentration greater than 0.02.

(3) That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person's alcohol concentration in any court or administrative proceeding.

N.C.G.S. § 20-139.1(b3) (1983).

In response to the Legislature's mandate, the Commission for Health Services developed appropriate operating procedures for use in conducting breathalyzer chemical analyses pursuant to the provisions set out in the statute. In regulation 10 NCAC 7B .0354, the Commission enunciated the following policy:

(a) When performing chemical analyses of breath under the authority of G.S. 20-139.1 and the provisions of these rules, chemical analysts shall report alcohol concentrations on the basis of grams of alcohol per 210 liters of breath. All results shall be reported to hundredths. Any result between hundredths shall be reported to the next lower hundredth.

10 NCAC 7B .0354(a) (1987) (emphasis added).

Defendant was arrested for DWI as a result of the observations of Officer A.W. Baldwin of the Goldsboro City Police Department. Officer Baldwin initially noted that defendant failed to dim his headlights in response to Baldwin's signal. As the patrol car pulled behind defendant's car, defendant weaved somewhat within his lane. After stopping defendant, Officer Baldwin spoke to him and noted that defendant had a strong odor of alcohol on his breath and acted in an abusive and boisterous manner.

Defendant was then taken before Trooper J.D. Booth, a twenty-year veteran of the North Carolina Highway Patrol and certified breathalyzer operator, who performed a chemical analysis of defendant's breath using the Breathalyzer Model 200. In accordance with the Commission's regulations as set forth on his operational checklist, Booth administered two tests of defendant's breath. The card used in the breathalyzer test bears no markings which would indicate readings in more precise increments than hundredths. The delineations on the face of the record card appear as

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

and show no delineation more precise than hundredths.

In a typical breathalyzer test, the analyst positions the test record card in alignment with the face of the instrument, which is calibrated to two decimal places. A plastic cover encases the scale and the blood alcohol pointer. This cover is designed to allow the operator to apply pressure to the inked pointer in order to mark the test record card. Once the pointer has stopped at a particular point over the scale as a result of the introduction of the breath sample, the chemical analyst depresses the plastic cover, which in turn causes the inked pointer to make an ink impression on the card.

On the first test, Booth observed that the inked test record pointer marked the instrument's test record card at a point on the breathalyzer scale between .22 and .23. In accordance with the regulations, Booth rounded this figure downward to the nearest hundredth for a test result of .22. On the second test, the pointer indicated an alcohol concentration of .20. Because he rounded down the first reading, Booth obtained two results which were within .02 of each other as required by N.C.G.S. § 20-139.1(b3).

At the voir dire hearing on his motion to suppress the chemical analysis, defendant introduced into evidence the test record cards from which Booth observed and recorded the test results. Defendant contended that, although the card does not bear indications more precise than hundredths, by interpolation, the marking on the card for the first test indicated a "reading" of approximately .226 and the markings on the card for the second test indicated a "reading" of .20, and the test results thus were rendered invalid under subsection (b3) of the statute. That subsection specifically provides that "the test results may only be used to prove a person's particular alcohol concentration if ... [t]he readings do not differ from each other by an alcohol concentration greater than

0.02." N.C.G.S. § 20-139.1(b3)(2) (1983) (emphasis added).

Defendant argues that the word "results" used in the statute and the regulation and the word "readings" used in the statute are not synonymous and should be read as having different meanings. He contends that "readings" refers to the actual ink markings which by interpolation may be read in various increments more precise than hundredths, whereas "results" can only refer to the readings after having been rounded down. We disagree.

Defendant alternatively contends that the meaning of the term "readings" is ambiguous because of possible confusion with the statute's use of the term "results." As such, defendant contends that the term should be strictly...