{
  "id": 8555654,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM TYRONE POWELL",
  "name_abbreviation": "State v. Powell",
  "decision_date": "1971-03-31",
  "docket_number": "No. 7110SC216",
  "first_page": "726",
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  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM TYRONE POWELL"
    ],
    "opinions": [
      {
        "text": "BROCK, Judge.\nThe sole question presented on this appeal, as stated by appellant, is \u201cDid the court err when it ruled the breathalyzer reading in this case was admissible evidence?\u201d Defendant does not argue that the witness who administered the test and testified as to the results was not shown to possess the qualifications required by G.S. 20-139.1 (b). The thrust of defendant\u2019s argument is that in order to comply with G.S. 20-139.1 (b) it is incumbent upon the State to introduce into evidence a certified copy of \u201cthe methods approved by the State Board of Health in administering the breathalyzer test\u201d and that it was error to allow the witness to testify that he administered the test in accordance with the rules and regulations established by the North Carolina State Board of Health, without introducing a copy of such rules and regulations in evidence. This contention is without merit and the assignment of error based thereon is overruled.\nAccording to the record on appeal in this case the State offered in evidence the \u201cpermit\u201d to administer the breathalyzer test issued to the State\u2019s witness by the State Board of Health, and apparently this satisfied defendant with respect to the permittee\u2019s qualifications. It also appears from the record on appeal, and further developed in oral argument, that it was the feeling of the solicitor and the trial court that the introduction of such a \u201cpermit\u201d was necessary before the individual administering the test would be allowed to testify as to its result. In the totality of the arguments before us we are referred to the holdings in State v. Caviness, 7 N.C. App. 541, 173 S.E. 2d 12, and State v. King, 6 N.C. App. 702, 171 S.E. 2d 33, as indicating that the \u201cpermit\u201d must be introduced into evidence, and also as indicating that a certified copy of the \u201cmethods approved by the State Board of Health\u201d for administering the breathalyzer test is required to be introduced into evidence.\nThe opinions in State v. Caviness, supra, and State v. King, supra, refer to State v. Mobley, 273 N.C. 471, 160 S.E. 2d 334, and the opinion in Mobley refers to State v. Cummings, 267 N.C. 300, 148 S.E. 2d 97, and State v. Powell, 264 N.C. 73, 140 S.E. 2d 705. There is not the slightest indication in Mobley, Cummings or Powell that the introduction of the \u201cpermit\u201d or that the introduction of a certified copy of the \u201cmethods approved by the State Board of Health\u201d is required before the individual may be allowed to testify as to the results of the breathalyzer test.\nSimilarly in Caviness the court was referring to the complete failure of the evidence in the record on appeal to show that the State\u2019s witness possessed a \u201cpermit\u201d and a complete failure of the evidence in the record on appeal to disclose that the breathalyzer test was administered according to the \u201cmethods approved by the State Board of Health.\u201d It is perfectly clear that the opinion in Cavin&ss does not require the introduction into evidence of the \u201cpermit\u201d or the introduction into evidence of a certified copy of the \u201cmethods approved by the State Board of Health.\u201d Chief Judge Mallard stated in Cavin&ss:\n\u201cThis section of the statute requires two things before a chemical analysis of a person\u2019s breath can be considered valid. First, it requires that such analysis shall have been performed according to methods approved by the State Board of Health. Second, it requires that such analysis shall have been made by an individual possessing a valid permit issued by the State Board of Health for this purpose.\u201d\nIt is left open for the State to prove compliance with these two requirements in any proper and acceptable manner.\nThe record on appeal in State v. King, supra, shows that the State actually did introduce in evidence the \u201cpermit\u201d of the breathalyzer operator. In King it was held that a person holding a valid \u201cpermit\u201d issued by the State Board of Health is qualified to administer a breathalyzer test. And it was further held that when such a permit is introduced into evidence the permittee is competent to testify. However it is perfectly clear that the opinion in King does not limit the method of showing qualification of the permittee to an introduction of the \u201cpermit.\u201d\nIn our opinion, from a reading of the statute and the cases above cited, although permissible, it is not required that either the \u201cpermit\u201d or a certified copy of the \u201cmethods approved by the State Board of Health\u201d be introduced into evidence by the State before testimony of the results of the breathalyzer test can be given.\nIn the entire trial we find no error.\nNo error.\nJudges Morris and Vaughn concur.",
        "type": "majority",
        "author": "BROCK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Assistant Attorney General William W. Melvin and Assistant Attorney General T. Buie Costen for the State.",
      "William T. McCuiston for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM TYRONE POWELL\nNo. 7110SC216\n(Filed 31 March 1971)\nAutomobiles \u00a7 126; Criminal Law \u00a7 64\u2014 admission of breathalyzer test results \u2014 requisites of admissibility\nThe State is not required, prior to the admission of a breathalyzer test results, to introduce in evidence a certified copy of the methods approved by the State Board of Health for administering the test, although it is permissible to do so in order to show that the test complied with the applicable statutory standards. G.S. 20-139.1 (b).\nAppeal by defendant from Bowman, Special Superior Court Judge, 11 November 1970 Special Criminal Session, Wake Superior Court.\nThe defendant, in the District Court of Wake County, was1 convicted of operating a motor vehicle on the highways while under the influence of some intoxicating liquor. He appealed to the superior court. From a jury verdict of guilty and judgment thereon, the defendant appealed to the Court of Appeals.\nAttorney General Robert Morgan by Assistant Attorney General William W. Melvin and Assistant Attorney General T. Buie Costen for the State.\nWilliam T. McCuiston for defendant appellant."
  },
  "file_name": "0726-01",
  "first_page_order": 750,
  "last_page_order": 752
}