{ "id": 8528026, "name": "STATE OF NORTH CAROLINA v. ROBERT JOSEPH DRDAK", "name_abbreviation": "State v. Drdak", "decision_date": "1991-02-19", "docket_number": "No. 9021SC384", "first_page": "659", "last_page": "664", "citations": [ { "type": "official", "cite": "101 N.C. App. 659" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "323 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "312 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755385 ], "year": 1984, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0361-01" ] }, { "cite": "347 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773449, 4773679, 4772528, 4775318, 4773279 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0711-05", "/nc/317/0711-04", "/nc/317/0711-03", "/nc/317/0711-02", "/nc/317/0711-01" ] }, { "cite": "342 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "80 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524130 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/80/0425-01" ] }, { "cite": "96 ALR3d 745", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1979, "pin_cites": [ { "page": "\u00a7 6" } ], "opinion_index": 0 }, { "cite": "221 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "defendant charged with driving under the influence of alcohol entitled to a new trial because the State failed to carry its burden of proving that the breathalyzer test met the statutorily prescribed methods under N.C. Gen. Stat. \u00a7 20-139.1" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550599 ], "year": 1976, "pin_cites": [ { "parenthetical": "defendant charged with driving under the influence of alcohol entitled to a new trial because the State failed to carry its burden of proving that the breathalyzer test met the statutorily prescribed methods under N.C. Gen. Stat. \u00a7 20-139.1" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0506-01" ] }, { "cite": "334 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "268" }, { "page": "269", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527723 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0610-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(3a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-139.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 610, "char_count": 12421, "ocr_confidence": 0.781, "pagerank": { "raw": 3.8497276676276033e-07, "percentile": 0.8995632563906235 }, "sha256": "5b4aa92ee0710ad526473bef609b9f4d053675df43dce4e57324c0eb3f4a209a", "simhash": "1:ece1a7f77fcf42b6", "word_count": 1970 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WELLS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT JOSEPH DRDAK" ], "opinions": [ { "text": "ORR, Judge.\nThe dispositive issue on appeal is whether the trial court erred in denying defendant\u2019s motions to suppress the admission into evidence of defendant\u2019s medical records including the results of a blood alcohol test on the ground that the test was not in accordance with the provisions of N.C. Gen. Stat. \u00a7\u00a7 20-16.2 and 20-139.1. For the following reasons, we hold that the trial court erred and reverse the judgment of 15 November 1989.\nThe following facts are pertinent to this case on appeal. On 14 February 1989, defendant, an agent for the Federal Bureau of Investigation, met with another agent to discuss a case. Over the course of the evening, defendant consumed one beer, two mixed drinks, less than one glass of wine and a glass of cognac between the hours of 5:00 p.m. and 10:00 p.m. Defendant then left his fellow agent\u2019s house and drove onto Staffordshire Road. The evidence of record indicates that defendant lost control of his car and struck a tree.\nTerry Austin, who was inside a house across the street, arrived on the scene within a few minutes. When she opened the passenger door of defendant\u2019s car, she found defendant unconscious and lying on his right side on the front seat. Ms. Austin testified that she supported defendant\u2019s head until help arrived approximately 20 minutes later. Judith Kay, who was with Ms. Austin, notified the police immediately and assisted Ms. Austin. Both witnesses testified that they noticed a moderate odor of alcohol on defendant\u2019s breath.\nScott Emerson, emergency medical services technician, testified that he arrived on the accident scene at 10:18 p.m. and examined defendant for injuries. During this examination, Mr. Emerson detected a moderate odor of alcohol on defendant\u2019s breath.\nDefendant was then transported to Forsyth Memorial Hospital before the investigating officer, Officer Lichtenhan, arrived at the accident scene. When Officer Lichtenhan arrived at the hospital at 11:40 p.m., he detected a slight odor of alcohol on defendant. Officer Lichtenhan stated in his police report that defendant had been drinking, but that he was unable to form an opinion that defendant was impaired in any way. Officer Lichtenhan did not order a blood sample to be analyzed for blood alcohol content pursuant to the appropriate statutes.\nDr. Daniel Sayers treated defendant at the emergency room and ordered a routine series of laboratory tests including a request for blood ethanol level, which he considered necessary for treatment purposes. A phlebotomist at the hospital, Jo Annette Matthews, drew blood samples from defendant between 10:50 p.m. and 11:00 p.m., using an iodine prep containing no ethanol alcohol, and then delivered the samples to the lab for testing.\nKathleen Thore, medical technologist, analyzed defendant\u2019s blood sample on 14 February 1989 and determined that his blood alcohol concentration result was 0.178 grams per milliliter of blood. The results were recorded and the blood samples destroyed in seven days pursuant to hospital procedure.\nOn 22 February 1989, the Winston-Salem Journal reported that it had obtained defendant\u2019s confidential medical records and then reported the above information concerning defendant\u2019s blood alcohol content. Based upon the news report, the district attorney filed a motion to compel disclosure of defendant\u2019s medical records. The court ordered such disclosure on 9 March 1989. On 15 March 1989, defendant was charged with driving while impaired on 14 February 1989.\nPrior to trial, defendant moved to suppress the admission of the results of the blood test analysis performed on 14 February 1989 and offered the following stipulated facts:\n1. Cathy Thore, the Hospital employee performing the blood-alcohol test, is not licensed by and does not possess a permit from the Department of Human Resources to be a \u201cChemical Analyst\u201d pursuant to G.S. 20-139.1. The hospital blood test which the State offers to prove Defendant\u2019s blood-alcohol concentration was not done according to the methods and procedures required of a Chemical Analysis authorized by G.S. 20-16.2 and G.S. 20-139.1. Defendant was not offered a chance to submit or refuse to submit to a chemical analysis of his breath or blood and was not advised of his rights concerning same. (Emphasis in the original).\nThe trial court denied defendant\u2019s motion and admitted the evidence.\nUnder N.C. Gen. Stat. \u00a7 20-139.1 (1983),\n(a) Chemical Analysis Admissible. \u2014 In any implied-consent offense under G.S. 20-16.2, a person\u2019s alcohol concentration as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to defendant\u2019s alcohol concentration, including other chemical tests.\nThe remaining subsections of the statute provide detailed instructions concerning the procedures for chemical analysis of blood alcohol content, and the above stipulations indicate that the State did not comply with these procedures. Therefore, if the analysis of defendant\u2019s blood alcohol content is admissible at all, it must be admissible as \u201cother competent evidence . . ., including other chemical tests[.]\u201d under subsection (a). The State maintains that the evidence of defendant\u2019s blood alcohol content was an \u201cother chemical test\u201d and not a chemical analysis subject to the rigid requirements for analysis under \u00a7 139.1. The State concedes, however, that the purpose of defendant\u2019s blood test was to determine the alcohol concentration of his blood so that the physicians and nurses treating defendant on 14 February 1989 could provide appropriate medical care.\nDefendant argues that the evidence was, in fact, an \u201canalysis\u201d of his blood and therefore subject to the statutory requirements. We agree with defendant that under the facts in the present case, the evidence admitted was an analysis of defendant\u2019s blood and did not meet the statutory requirements for chemical analysis. Therefore, the evidence should not have been admitted at trial.\nChemical analysis is defined in N.C. Gen. Stat. \u00a7 20-4.01(3a) (1983) as \u201c[a] chemical test of the breath or blood of a person to determine his alcohol concentration, performed in accordance with G.S. 20-139.1[,] . . . including] duplicate or sequential analyses when necessary or desirable to insure the integrity of test results.\u201d\nThis Court has considered blood samples drawn for purposes of medical treatment subject to the statutory requirements of \u00a7 20-139.1 for analysis when the analyses of the blood alcohol content of the blood samples were later used as a basis for criminal charges of driving under the influence. Therefore, the State\u2019s argument that this kind of analysis as \u201cother competent evidence\u201d of defendant\u2019s alcohol concentration is without merit.\nThe present case is very similar to that of State v. Bailey, 76 N.C. App. 610, 334 S.E.2d 266 (1985), in which a defendant involved in an automobile collision was injured and unconscious upon arrival at the hospital. For medical treatment purposes, a medical laboratory technologist drew two vials of blood from the defendant and placed the blood in a refrigerator. A law enforcement officer picked up one of the blood vials from another trooper two weeks after it was drawn and transported it to the SBI lab for analysis in accordance with \u00a7 20-139.1. Id. at 612, 334 S.E.2d at 268. In rejecting the defendant\u2019s argument that the evidence was insufficient to establish the integrity or identity of the sample, this Court stated, \u201c[t]he State is not required to negate every possible flaw in the testing procedure in order for the results of the chemical analysis to be admissible, it is only required that the State show compliance with the provisions of G.S. 20-139.1.\u201d Id. at 613, 334 S.E.2d at 269 (emphasis added). See also State v. Gray, 28 N.C. App. 506, 221 S.E.2d 765 (1976) (defendant charged with driving under the influence of alcohol entitled to a new trial because the State failed to carry its burden of proving that the breathalyzer test met the statutorily prescribed methods under N.C. Gen. Stat. \u00a7 20-139.1); 96 ALR3d 745 \u00a7 6 (1979).\nWe are aware that in State v. Miller, 80 N.C. App. 425, 342 S.E.2d 553, appeal dismissed and disc. review denied, 317 N.C. 711, 347 S.E.2d 448 (1986), this Court permitted admission of blood alcohol concentration tests performed by hospital personnel under similar circumstances and entered into hospital records as a medical records exception to the hearsay rule. The Miller court, however, did not address the issue before us of whether the blood analysis must comply with the requirements of \u00a7 20-139.1 before it can be admitted into evidence to support a criminal charge of driving under the influence.\nIn the present case, the State stipulated that the blood test analysis offered and admitted into evidence was not performed according to the methods and procedures required under N.C. Gen. Stat. \u00a7 20-16.2 and \u00a7 20-139.1. Because the analysis did not comply with the statute, we hold that the evidence was inadmissible; and by its erroneous admission, it so prejudiced defendant as to require a new trial. It is well-settled law in this jurisdiction that evidence of a blood alcohol content of 0.10 or more is sufficient evidence, standing alone, for conviction of driving while impaired. State v. Smith, 312 N.C. 361, 374, 323 S.E.2d 316, 323 (1984). In the case sub judice, the erroneously admitted evidence indicated that defendant\u2019s blood alcohol concentration was 0.178.\nFor the above reasons, we reverse defendant\u2019s conviction and order a new trial. Because we order a new trial on the above issue, we decline to address defendant\u2019s remaining assignments of error.\nNew trial.\nChief Judge HEDRICK and Judge WELLS concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "D. Blake Yokley and Donald K. Tisdale for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT JOSEPH DRDAK\nNo. 9021SC384\n(Filed 19 February 1991)\nAutomobiles and Other Vehicles \u00a7 813 (NCI4th)\u2014 driving while impaired \u2014 blood test analysis \u2014 erroneously admitted\nA blood test analysis was erroneously admitted and a new trial for driving while impaired was granted where defendant was involved in a one-car accident after consuming alcohol; he was found unconscious in his car; those who came to his aid noticed an odor of alcohol on his breath; the investigating officer did not order a blood sample to be analyzed pursuant to the appropriate statutes; the treating physician ordered a routine series of laboratory tests, including a request for blood ethanol level, which he considered necessary for treatment; a phlebotomist at the hospital took blood samples and a medical technician analyzed the blood sample; defendant\u2019s blood alcohol concentration was .178; the results were recorded and the blood sample destroyed; and defendant was charged after the local newspaper obtained defendant\u2019s confidential medical records and reported defendant\u2019s blood alcohol \u2019 content. The State stipulated that statutory procedures for chemical analysis of blood alcohol content were not followed and, even though the State contended that the evidence was admissible as an \u201cother chemical test\u201d rather than a chemical analysis, the purpose of defendant\u2019s blood test was to determine the alcohol contentration of his blood. Under these facts, the analysis of defendant\u2019s blood did not meet the statutory requirements for chemical analysis and should not have been admitted. N.C.G.S. \u00a7 20-139.1 (1983); N.C.G.S. \u00a7 20-4.01(3a) (1983).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 305, 306, 375, 377, 378.\nAPPEAL by defendant from judgment entered 15 November 1989 by Judge W. Steven Allen, Sr., in FORSYTH County Superior Court. Heard in the Court of Appeals 14 January 1991.\nOn 15 March 1989, defendant was charged with driving while impaired in violation of N.C. Gen. Stat. \u00a7 20-138.1 in connection with a single car accident which occurred on 14 February 1989. Defendant was convicted on 15 June 1989 and appealed to Superior Court. A jury convicted defendant on 15 November 1989. Defendant received a 24-hour jail term, suspended, and unsupervised probation for three years. As a condition of probation, defendant agreed to perform 24 hours of community service and complete Alcohol, Drug Education and Traffic School.\nFrom the judgment of 15 November 1989, defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nD. Blake Yokley and Donald K. Tisdale for defendant-appellant." }, "file_name": "0659-01", "first_page_order": 687, "last_page_order": 692 }