{
  "id": 11917310,
  "name": "STATE OF NORTH CAROLINA v. THOMAS WATSON COTHRAN",
  "name_abbreviation": "State v. Cothran",
  "decision_date": "1995-11-07",
  "docket_number": "No. COA94-1432",
  "first_page": "633",
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    "name": "N.C."
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          "parenthetical": "General Assembly may legislate an objective standard where it is a rational way to correct a perceived problem and serves a legitimate State function"
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      "cite": "N.C. Gen. Stat. \u00a7 20-138.2",
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      "reporter": "N.C. Gen. Stat.",
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  "last_updated": "2023-07-14T16:17:04.771230+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Chief Judge ARNOLD and Judge SMITH concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS WATSON COTHRAN"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThomas Watson Cothran (defendant) appeals from a judgment of the superior court, entered after a jury verdict, finding him guilty of \u201cImpaired Driving in a commercial motor vehicle,\u201d in violation of N.C. Gen. Stat. \u00a7 20-138.2, and suspending his sixty-day prison sentence and placing him on unsupervised probation for two years.\nDefendant was arrested in Cleveland County on 9 November 1993 and charged with impaired driving in a commercial vehicle. A chemical analysis of defendant\u2019s breath, using the Intoxilyzer 5000 revealed that the alcohol content of defendant\u2019s breath was .04 grams per 210 liters of breath.\nAt trial, defendant presented the testimony of Dr. James Woodford (Woodford), a chemist, who was found by the trial court to be an expert in medicinal chemistry and in alcohol and blood testing devices. The trial court refused to permit Woodford to offer the following testimony to the jury:\nTo be an approved machine in the United States, all \u2014 the Intoxilyzer plus every other breath alcohol testing apparatus must be tuned to a certain [blood-breath] ratio, 2100 to one. . . .\nNow, that 2100 to one number is an average number of [blood-breath] ratios in the general population. There are some people who have lower [blood-breath] ratios. Those people score too high on the breath test on the Intoxilyzer 5000. There are people who have higher [blood-breath] ratios and they score too low on the Intoxilyzer 5000. We didn\u2019t know which way it was going to go.\nWe have to test the person to find out what their personal [blood-breath] ratio is and if it\u2019s \u2014 if it is 2100 to one, that\u2019s the way the machine is calibrated, the Intoxilyzer 5000, then there is no error. There is no correction to be made.\nBut in this case, I found out that [the defendant\u2019s blood-breath] ratio was 1722 to one, which is \u2014 by direct testing of the defendant, which means he does not match the calibration of the Intoxilyzer. It causes him to read about eighteen percent too high [on the Intoxilyzer],\nThe overall significance is that his corrected \u2014 if you correct his body chemistry to the calibration of the machine, he should have read .03 on the machine ....\nThe issue is whether the trial court erred in excluding Woodford\u2019s testimony relating to defendant\u2019s blood-breath ratio.\nA person commits the offense of impaired driving if he drives a commercial vehicle either while under the influence of an impairing substance or after having consumed sufficient alcohol that he has an alcohol concentration of .04 or more. N.C.G.S. \u00a7 20-138.2 (1993). The legislature has determined that a person\u2019s alcohol concentration is expressed as either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. N.C.G.S. \u00a7 20-4.01(0.2) (1993).\nThe defendant contends that the trial court erred in denying him an opportunity to present evidence that his blood-breath ratio was different from that used in the statute. We disagree.\nThere is no dispute that the conversion factor (grams of alcohol per 210 liters of breath) used in section 20-4.01(0.2) is based on an assumed blood-breath ratio. See State v. Brayman, 751 P.2d 294, 297 (Wash. 1988). In other words, the \u201cassumption is that a [concentration of alcohol in breath] of .10 g/210L is equivalent to a [blood alcohol concentration] of .10%.\u201d 2 Richard E. Erwin, Defense of Drunk Driving Cases \u00a7 21.01 (3d ed. 1995) (hereinafter Erwin). It therefore follows that \u201c[b]ecause blood-breath ratios vary both between individuals, and at different times in the same individual, a breath test based on a 2100:1 blood-breath ratio may not accurately represent a particular individual\u2019s blood alcohol level.\u201d Brayman, 751 P.2d at 297; see Erwin \u00a7 21.01 (\u201cA number of physiological factors, that have no effect on a direct blood analysis, can materially affect a breath test.\u201d). Because, however, our legislature has adopted a breath alcohol per se offense as an alternative method of committing a driving while impaired offense, it is immaterial whether the defendant is in fact impaired or whether his blood alcohol content is in excess of that permitted in the statutes. Cf. Dixon v. Peters, 63 N.C. App. 592, 601, 306 S.E.2d 477, 483 (1983) (General Assembly may legislate an objective standard where it is a rational way to correct a perceived problem and serves a legitimate State function). Accordingly, Woodford\u2019s excluded testimony that the defendant\u2019s Intoxilyzer reading did not accurately reflect his blood alcohol level is not admissible and the trial court correctly excluded this evidence. N.C.G.S. \u00a7 8C-1, Rules 402, 403 (1992) (only evidence tending to prove a fact in consequence is relevant and admissible).\nBreath test evidence is not, however, conclusive proof of the per se offense as the State must still establish the foundational requirements of the test, that the machine was in proper working order, that the reading is correct and that the officer is certified and competent to administer the test. The defendant does not contest these issues.\nNo error.\nChief Judge ARNOLD and Judge SMITH concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Joseph P. Dugdale, for the State.",
      "J. Stephen Gray for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS WATSON COTHRAN\nNo. COA94-1432\n(Filed 7 November 1995)\nEvidence and Witnesses \u00a7 2311 (NCI4th)\u2014 impaired driving charged \u2014 evidence of blood-breath ratio properly excluded\nIn a prosecution of defendant for impaired driving in a commercial motor vehicle, the trial court did not err in excluding expert testimony that defendant\u2019s Intoxilyzer reading did not accurately reflect his blood alcohol level because his normal blood-breath ratio was different than the calibration of the Intoxilyzer, since the legislature has adopted a breath alcohol per se offense as an alternative method of committing a driving while impaired offense, and it is immaterial whether defendant is in fact impaired or whether his blood alcohol content is in excess of that permitted in the statutes. N.C.G.S. \u00a7 20-138.2.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 379; Evidence \u00a7 1021.\nValidity of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood. 46 ALR2d 1176.\nConstruction and application of statutes creating presumption or oth\u00e9r inference of intoxication from specified percentages of alcohol present in system. 16 ALR3d 748.\nNecessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods. 96 ALR3d 745.\nAppeal by defendant from judgment entered 28 June 1994 in Cleveland County Superior Court by Judge James R. Strickland. Heard in the Court of Appeals 2 October 1995.\nAttorney General Michael F. Easley, by Assistant Attorney General Joseph P. Dugdale, for the State.\nJ. Stephen Gray for defendant-appellant."
  },
  "file_name": "0633-01",
  "first_page_order": 667,
  "last_page_order": 670
}