This article is written as an outline for North Carolina attorneys on how to attack a breath test where your client was denied a witness during chemical testing. In sum, the defense must show three things: (1) the Defendant requested to have a witness present during testing procedures; (2) the witness timely arrived to view testing procedures; and (3) the witness made reasonable efforts to gain access to the Defendant. State v. Ferguson, 90 N.C. App. 513, 519 (1998) (if the Court “find[s] that Mrs. Ferguson’s arrival to the jail was timely and she made reasonable efforts to gain access to defendant, then defendant was denied access to a potential witness.”).


Denied A Witness During Breath Testing: A Practitioner’s Guide to an Attack Based on State vs. Ferguson

Right To A Witness

Whenever you are arguing that your client’s right to a witness was violated, begin by reminding the Court that such a right exists. Before a chemical analyst (officer) can obtain a sample of DWI suspect’s breath (or blood) by consent, the suspect must be notified that he has the right to have an attorney or witness present to observe the test and be given 30 minutes from the time the suspect is informed of this right to have his attorney or witness arrive. N.C.G.S. § 20-16.2(a)(6).

It is the defendant who must exercise this right to a witness. Once informed of his right to call an attorney or witness, the defendant must inform the officer/chemical analyst of his desire to have a witness present for chemical testing. DHHS form 4081 (Rights of a Person Requested to Submit to a Chemical Analysis) has the following question after the Rights Advisement: “Did defendant call an attorney or witness?” followed by boxes to check either “yes” or “no”. If the “yes” box is checked that is probably your best indicator that your client exercised his right to have a witness present.

Obligation on State: If the suspect requests a witness, the Court of Appeals appears to find that the chemical analyst is required to alert the front desk officer or magistrate, that a witness is coming to view testing procedures. State v. Hatley, 661 S.E.2d 43, 46 (N.C. App. 2008). Make sure to ask the chemical analyst if he proactively alerted anyone that a witness had been requested.


Scenario: What if your client never reaches anyone by phone, or does not even pick up a phone to call for a witness? Does this mean he has forfeited his right to a witness?

I think the answer is “it depends.” For example, if your client had a passenger in the vehicle with him or her at the roadside, told the officer that he wanted that person to come down to the station, and the officer had some conversation with the passenger, is it really necessary that your client call that same passenger once he is at the jail and being advised of his rights?


Also remember that many jails have poor (or no) long distance calling features.

  • Was your client allowed access to a phone book?
  • Was your client allowed to make calls from his cell phone?
  • Was your client allowed to use the cell phone to Google attorneys or look up contacts? These are important questions in the context of whether the right to a witness was really made available to the defendant.

Timely Arrival of the Witness

The second thing you must show is that the witness timely arrived. In many cases, this is the most difficult thing for the defense to show. Proving an arrival time may be based on phone records indicating calls or text messages between the witness and the defendant. It may be based on the witness recalling an exact time that he arrived or having time stamped social media posts that might corroborate an arrival time. Arrival time might also be shown by jail surveillance video. (Caution: make sure that you obtain video from the jail surveillance as soon as possible after being retained if witness issues are present as jail video is often recorded over or deleted entirely after 30 days or earlier).

To show this element is satisfied at a hearing, you will likely need the witness to testify in court.

Reasonable Efforts to Gain Access to Defendant

This element is much more facts and circumstances based than the first two elements, which are black and white issues. It is this element that was the key point of discussion in State v. Hatley, 661 S.E.2d 43 (N.C. App. 2008). In Hatley, the witness never informed anyone at the jail that she was there to act as a witness to the breath test. The State argued that since the witness never told anyone at the jail that she was there to act as a witness to a breath test, the Defendant’s rights were not violated. Hatley, 661 S.E.2d at 45. In Hatley, the charging officer knew the defendant had contacted a witness, her daughter, and also knew that the witness was on her way to the Sheriff’s office. When the daughter arrived at the Sherriff’s office, she told the front desk officer: “I am here for Debbie Hatley, who was charged with DUI.”

The Court of Appeals found that this statement to the front desk officer was a reasonable effort by Defendant’s daughter to gain access to defendant and therefore, Denial of Defendant’s statutory rights were violated. Hatley, 661 S.E.2d 43, 46 (“We find no authority for the proposition that a potential witness to an intoxilyzer test must state unequivocally and specifically that he or she has been called to view the test before the witness is permitted to observe the test. Uncontradicted evidence shows that the witness timely arrived; identified and described to the front desk officer the person she was there to see; and told the front desk officer that the person was there for ‘a DUI.’”)

Remedy for Statutory Violation

The remedy for a denial of access to a witness to view testing procedures as laid out under 20-16.2 is suppression of the chemical test results. State v. Myers, 118 N.C. App. 452, 455 S.E.2d 492, disc. review denied, 340 N.C. 362, 458 S.e.2d 195 (1995). As a result, where it is anticipated that a statutory denial of access to witness occurred, attorneys should make a pretrial motion to suppress the results of the blood or breath test. N.C.G.S. § 20-38.6(a). If you are arguing there was a constitutional violation of your client’s rights resulting from a denial of access to a witness then the appropriate remedy is dismissal. See Ferguson, 90 N.C. App. at 519.


Red Herrings Argued by the State

Red Herring 1: “The presence of a witness would not have changed the breath test.” True, but irrelevant. In Hatley the result was a .11. The question is whether a violation of the statutory right has occurred. The statutory right at issue is having a witness see the testing procedures whether they produce a helpful or hurtful result.

Red Herring 2: “The witness was allowed to see the defendant shortly after testing.” This fact may be important in a suppression hearing based on State v. Knoll, but is not relevant for the right of being able to have a witness for chemical testing procedures.

Red Herring 3: “There were signs in the jail that indicated to a witness the specific language they needed to use to act as a witness to a breath test.” Police signs do not trump the Court of Appeals of North Carolina. There is zero legal authority that a potential witness “must state unequivocally and specifically that he or she has been called to view the test.” Hatley, 661 S.E.2d 46.

The Court’s reasoning in Hatley seems to indicate that defendants and their witnesses have limited knowledge and understanding of the legal process and rights related to breath testing whereas officers and magistrate judges deal with these situations on a daily basis and are in a better position to insure that a person’s legal rights are protected. Many times I have friends and family of a defendant show up at the jail with very limited information as to what they are there to do or how they can help. However, they are there for their friend (the defendant) and clearly indicate this to the magistrate.

Such a person is a “potential witness” for breath testing purposes even if they don’t know that witnessing a breath test is an option. I ask such friends or family “if you had been asked by the magistrate if you would be willing to view chemical testing would you have been willing to do so?” I have never had a situation where the answer to this question was anything but a resounding yes.