In today’s Episode we examine the right to have a witness present for breath testing. We look at the cases of State v. Ferguson and State v. Hatley and how to exclude the blood or breath results based on these cases. Get ready to learn how to mount an attack on the chemical results in your case.



Discussion of the legal framework for arguing a statutory violation based on the denial of a witness to chemical testing


Review of State v. Hatley and what it means for a witness to make “reasonable efforts to gain access to the defendant”


Examination of the remedy for both constitutional and statutory violations of defendant’s right to have a witness


Exploration of Red Herrings the State might argue in a hearing based on the denial of access to a witness


Episode 4 Transcript

Jake Minick:

Hello, fellow freedom fighters and welcome to another episode of the NC DWI Guy podcast. Today we are talking about the right to have a witness present for chemical testing. So we’re going to be talking through what that right looks like, primarily looking at the cases of State vs Ferguson and State vs Hatley and how to use those cases to either request a dismissal or to request the exclusion or suppression of the blood or breath alcohol concentration. In terms of our framework for the judge, the first thing we want to do in terms of any argument in the court is to disclose what kind of right that we are arguing. Is it a constitutional right, a statutory right, a right based on case law? So in regards to a breath testing issue or a witness issue with regards to chemical testing, we would potentially be asserting either a constitutional right or a statutory right.

In State vs Ferguson, the right that was argued was a constitutional violation of North Carolina constitution article one section 23. And in the Ferguson decision, the defendant’s wife was not allowed, permitted to observe breath testing even though she timely arrived and did everything else necessary. The defendant in that case ultimately chose not to perform a breath test, ultimately refused breath testing. And so we will talk about what the appropriate remedy is in a few minutes, but there was a violation of the defendant’s constitutional right to have a witness present under State vs Ferguson.

In most cases, what we’re going to be arguing is the statutory right under 20-16.2, which gives the defendant the following right. Under North Carolina 20-16.28A6, “You may call an attorney for advice and select a witness to view the testing procedures remaining after the witness arrives, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of these rights. You must take the test at the end of 30 minutes, even if you have not contacted an attorney or your witness has not arrived.” So that is the right, the statutory right that is read by the chemical analyst to the person charged, and they’re also supposed to be provided a copy in writing, so be advised both orally and in writing of that right to have a witness.

So in terms of the statutory violation, there are three things that need to be proven in order to show a statutory violation. Number one, the defendant has to tell the chemical analyst that he wishes for a witness to be present. So first of all, there has to be an exercise of the right to have a witness present. Must indicate yes, I do want to have somebody here. Number two, the witness must timely arrive. And number three, the witness must make reasonable efforts to gain access to the defendant. So in terms of showing number one, that the defendant tell the chemical analyst that he wishes for a witness to be present, on the North Carolina Department of Health and Human Services form 4081, which is the rights of a person requested to submit to a chemical analysis form, there is a box on that form that would indicate whether or not the defendant requested to have a witness present. So this is generally a relatively easy black and white item to prove. Yes, I would like to have a witness present. If that box has checked yes, that element is effectively proven.

Does that mean that there wouldn’t be a situation where that box is checked no and your client is saying I repeatedly requested a witness? Yes. Maybe there’s a situation that comes up on that front, but generally if that box is checked yes, that would be all that would be necessary to show that a request was made. Now, what if there is a situation where your client never actually reaches anybody by telephone or maybe doesn’t even make a phone call? Does that mean that he has waived his right to have a witness? Well, like any good lawyer, I think the answer to that question is it depends. That’s the legal answer that we give to so many things and that’s the answer to that question. It depends.

For instance, you could imagine a scenario where your client was at the roadside, had a passenger in the vehicle, told the officer he wanted that person to come down to the station. The officer then had some sort of brief conversation with that passenger explaining how to get to the jail. Does there really need to be any further exercise of that right in terms of trying to call that person from the jail or re-communicate that? I think the answer is it depends. How clear was it from the get go that your client wanted this person to come down to the jail and participate to the extent that he possibly could? So I think that’s a question to take a look at and to consider. So number one, the defendant must tell the chemical analyst that he wishes for a witness to be present.

Number two, the witness must timely arrive. So you have to show that the witness arrived in, even though this is a black and white issue, was it within 30 minutes or was it not? This can actually be one of the most difficult things to prove because proving an arrival time is going to be difficult. That might be based on phone records, indicating calls or text messages between the witness and your client. It may be based on the witness recalling, remembering an exact timeframe of when he arrived at the jail or at the location of breath or blood testing. It may be from a timestamped social media post that corroborates the arrival time. It might be shown by jail video. So the likely to prove this second element of the witness’ timely arrival, you’re going to have to show that element exists through some sort of testimony. Testimony then corroborated documentation or whatever it might be, but typically this is going to have to be proven by the defense through testimony.

So you’re going to have to have a witness that is going to be able to address the timeliness of their arrival. With regards to proving this by jail surveillance video, make sure to put in an early request for jail surveillance video, as a lot of times video is not held. Also in regards to the jail video, you want to try to review that early on in the case in order to verify whether or not this right actually exists. So it’s not just a matter of trying to preserve video, but trying to review that at the earliest opportunity so that you are not chasing a defense that doesn’t exist if the video actually shows that there was an untimely arrival.

The third thing, and the most gray element of these three elements is that the witness must make reasonable efforts to gain access to the defendant. So this is the most gray in terms of the three elements. And primarily what we’re focusing on here is looking at State vs Hatley. In State vs Hatley, the state looked at, the court looked at the reasonable efforts that the witness used to gain access to the defendant. In that case, the state argued that since the witness never indicated to anybody at the Sheriff’s Department that she was there to witness an Intoxilyzer test, the defendant was not deprived of her statutory rights. So because the witness did not say, “I’m here to act as a witness,” the statutory right was not denied.

The court looked at this and said that in this case, the officer knew not only that the defendant had contacted a witness, but also that the witness was on her way to the Sheriff’s office to observe the test. The officer testified that she could not recall whether she alerted the front desk officer to the witness’ impending arrival, but the state contends that she was under no duty to take any positive action to ensure the witness was admitted to the Intoxilyzer room. This is important language from the court. “Assuming without deciding that officer effort was not at a minimum required to alert the front desk officer that a witness was coming to view the administration of the Intoxilyzer test, we conclude that Amy Hatley timely arrived and made reasonable efforts to gain access to the defendant, and therefore defendant’s statutory right to have a witness observe the testing procedures was violated.”

One thing that’s important is that the court said, “Assuming without deciding,” so it wasn’t part of the holding, but assuming the officer had a minimum requirement to let the front desk know that a witness was coming. So point to that, once your client has indicated that they do want to have a witness present, ask the officer on the stand, “Did you alert anybody to the fact that a witness was coming?” Going down to your local jail would be helpful in terms of trying to determine whether or not reasonable efforts were made by a witness to get to your client.

In a lot of jails, you can’t see the intox room from the lobby area, so that plays a role in how proactive the witness is being in trying to gain access to the defendant. In terms of the holding or ruling in Hatley, again, really powerful language. The court indicated, “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 has permitted to observe the test. Uncontradicted evidence shows that the witness timely arrived, identified and described at the front desk officer the person she was there to see and told the front desk officer that a person was there for a DUI.” So in terms of the Hatley holding, this very clearly states that a witness need not specifically indicate that that is why they have come to the jail, that they are there to be a witness. That language is not required. So, important language from Hatley.

In terms of the remedy for a statutory or constitutional violation, in Ferguson, because of the fact that there was no chemical result that was received, it was a refusal case. In Ferguson, the court noted, “That the denial of access to a witness in this case when the state’s sole evidence of the offense is the personal observations of the authorities would constitute a flagrant violation of defendant’s constitutional right to obtain witnesses under North Carolina constitutional article one section 23 as a matter of law and would require the charges be dismissed.” So because of the fact that this was a case that was based solely on officer observations, there was no chemical result taken because the defendant ultimately refused chemical analysis. That situation resulted in such a substantial denial of a right to have a witness present such prejudicial, such irreparable prejudice was caused by that for that specific right that the appropriate remedy was a dismissal.

So, know that requesting a dismissal may be an option depending on the facts of your specific case. If there is a statutory violation, then that typically would result in suppression of the breath or blood result in suppression of the chemical evidence. So again, most of the violations that occur with regards to a right to have a witness present are going to be statutory violations, but look at the facts of your individual case.
A couple of red herrings to go through in terms of things that the state may argue. One of the things that I see the DA often argue is that, “Judge, it wouldn’t have made any difference to the BAC, had a witness been present to watch it. A witness being present doesn’t change the numerical result from the breath testing device.” And I think the answer to that is that’s true, but it doesn’t matter. If a statutory violation of the right to have a witness present occurs, then that should result in suppression of the breath test. In Hatley, the result was a 0.11. So you have to remember that it makes no difference that there was a numeric result recorded. That’s not the issue. It’s was there a violation of the statutory right or was there not.

The second red herring that I see offered sometimes is, “Well judge, the witness came and was able to see the defendant shortly after the chemical testing.” So yes, they weren’t able to see the defendant during the testing and observe the test, but they got to see the person shortly after, therefore there’s no violation. That would go to a no violation, which we’re not going to talk about today, but that would go to a different right related to the ability to get your own independent witnesses and testing and the timeframe of release. But that doesn’t go to the statutory right to have a witness present for breath testing. So the fact that they were allowed to see the defendant shortly after, makes no difference. It’s were they denied the ability to observe the testing procedures that were not completed prior to their arrival.

A third and final red herring is that I see the state sometimes argue that there were signs at the location of the chemical analysis that directed the witness on where they needed to go and specifically what they needed to say in order to be a witness, and this is just misleading. Again, even if there is something at the jail that indicates you should use this specific language when informing the front desk officer, the magistrate, whoever it might be, that you’re acting as a witness, that is not what Hatley requires. Hatley says there is no specific language that is required, that it is enough for the person to give the name of the defendant, to give the name of the person they’re there to see and tell them basically what they’ve been charged with, in that case DUI, even though it was a DWI, to give the magistrates some basis for letting them know why they’re there.

Jake Minick:

Because really when the magistrate or front desk officer learns that somebody has arrived for a person that has been charged with a DWI, bells should be going off in the magistrate and state’s head that this person may be here as a witness. So we want to do everything possible to get this individual back to the person charged if they have requested a witness and chemical analysis has not been performed.

Jake Minick:

So again, this idea that there was signs, judge, telling the person where they needed to go and what they needed to say does not override the Court of Appeals of North Carolina. Signage that is put up by a local authority doesn’t override the Court of Appeal saying, “The witness doesn’t need to use specific language.” So, don’t let these red herrings distract the judge in terms of what the issue is. If you have shown that there was the threefold requirement to show a statutory violation, one, defendant told the officer that he wished for a witness to be present, two, that the witness timely arrived, and three, that the witness made reasonable efforts to gain access to the defendant. You’ve shown a statutory violation and the appropriate remedy is suppression of the blood or breath alcohol concentration. Hope you found this episode helpful and I look forward to speaking with you again next time.

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