{ "id": 8522495, "name": "STATE OF NORTH CAROLINA v. CHARLIE TEW", "name_abbreviation": "State v. Tew", "decision_date": "1989-09-19", "docket_number": "No. 888SC1324", "first_page": "634", "last_page": "636", "citations": [ { "type": "official", "cite": "95 N.C. App. 634" } ], "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": "354 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 1 }, { "cite": "319 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739621, 4738471, 4744470, 4745723, 4748766 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/nc/319/0409-02", "/nc/319/0409-03", "/nc/319/0409-04", "/nc/319/0409-05", "/nc/319/0409-01" ] }, { "cite": "351 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "830" } ], "opinion_index": 1 }, { "cite": "84 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167657 ], "year": 1987, "pin_cites": [ { "page": "114" } ], "opinion_index": 1, "case_paths": [ "/nc-app/84/0111-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-139.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "378 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "324 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485437 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/324/0424-01" ] } ], "analysis": { "cardinality": 354, "char_count": 5624, "ocr_confidence": 0.743, "pagerank": { "raw": 2.982330158572608e-07, "percentile": 0.8511140997023379 }, "sha256": "5cf797d23600b0de05ac1389ec7a86e53ef990a9e2bd823f8e57cc2accba7b14", "simhash": "1:a60d831677219bf1", "word_count": 897 }, "last_updated": "2023-07-14T18:25:49.576177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BECTON concurs.", "Judge COZORT dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLIE TEW" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe procedures governing the admissibility and performance of a breath test are contained in N.C.G.S. \u00a7 20-139.1. The relevant portion of this statute provides:\n(b) . . . A chemical analysis, to be valid, must be performed in accordance with the provisions of this section. The chemical analysis must be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Human Resources for that type of chemical analysis. The Commission for Health Services is authorized to adopt regulations approving satisfactory methods or techniques for performing chemical analyses ....\nIn addition, subsection (b3) provides:\nBy January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. Those regulations must provide:\n\u2021 \u2021 \u2021 H*\n(2) That the test results may only be used to prove a person\u2019s particular alcohol concentration if:\na. The pair of readings employed are from consecutively administered tests; and\nb. The readings do not differ from each other by an alcohol concentration greater than 0.02.\nN.C.G.S. \u00a7 20-139.10)3).\nThe Commission for Health Services has published operating procedures for conducting breathalyzer tests pursuant to N.C.G.S. \u00a7 20-139.1(b). Regulation 7B.0354 provides in part:\n(a) When performing chemical analyses of breath under the authority of G.S. 20-139.1 and the provisions of these rules, chemical analysts shall report alcohol concentrations on the basis of grams of alcohol per 210 liters of breath. All results shall be reported to hundredths. Any result between hundredths shall be reported to the next lower hundredth.\nN.C. Admin. Code tit. 10, r. 7B.0354 (eff. Feb. 1987).\nFollowing the regulations of the Commission for Health Services, Trooper Booth rounded the first test results down to .22. He then recorded the two readings as .22 and .20 (by rounding down the first reading, the two results were within .02 of each other which is required by N.C.G.S. \u00a7 20-139.1(b3)).\nThe readings from defendant\u2019s two breath tests differed from each other by an alcohol concentration greater than 0.02. Defendant\u2019s motion to suppress the test results should have been granted.\nReversed.\nJudge BECTON concurs.\nJudge COZORT dissents.", "type": "majority", "author": "ARNOLD, Judge." }, { "text": "Judge COZORT\ndissenting.\nI do not disagree with the majority\u2019s literal interpretation of the specific statute at issue here. Nonetheless, I believe that, when this specific statute is considered in pari materia with the rest of the statutes on procedures governing chemical analyses, the General Assembly did not intend for the evidence of breathalyzer readings to be suppressed when the \u201crounded down\u201d readings are within .02. Cf. Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771 (1989).\nN.C. Gen. Stat. \u00a7 20-139.1 permits the admission in evidence of the lower reading of a pair of consecutively administered tests. The purpose underlying the requirement of at least two tests is to assure the accuracy of the readings. State v. White, 84 N.C. App. 111, 114, 351 S.E.2d 828, 830, appeal dismissed, 319 N.C. 409, 354 S.E.2d 887 (1987). I believe that purpose is fulfilled when the \u201crounded down\u201d readings are within .02 of each other.\nIn the case below, the first reading was between .22 and .23 and the second was .20.1 do not believe those readings demonstrate unreliability of the machine. I also take judicial notice that these readings indicate an excessive consumption of alcohol. A purely technical reading of the statute works to suppress evidence of this excessive consumption. I vote to affirm the trial court\u2019s ruling denying the motion to suppress.", "type": "dissent", "author": "Judge COZORT" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "Barnes, Braswell, Haithcock & Warren, by R. Gene Braswell and Glenn A. Barfield, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLIE TEW\nNo. 888SC1324\n(Filed 19 September 1989)\nAutomobiles and Other Vehicles \u00a7 126.2\u2014 breathalyzer tests \u2014 difference greater than .02 \u2014 inadmissibility\nBreathalyzer test results were inadmissible in a DWI prosecution pursuant to N.C.G.S. \u00a7 20-139.1(b3) where the reading for the first test was between .22 and .23, and the reading for the second test was .20, since the readings for defendant\u2019s two breathalyzer tests differed from each other by an alcohol concentration greater than .02.\nJudge COZORT dissenting.\nAPPEAL by defendant from Currin, Judge. Judgment entered 21 September 1988 in Superior Court, WAYNE County. Heard in the Court of Appeals 24 August 1989.\nDefendant was arrested for DWI on 22 July 1987. He was taken before State Trooper J. D. Booth who administered two tests of defendant\u2019s breath for alcohol content. The first test recorded an alcohol concentration of between .22 and .23 grams of alcohol per 210 liters of breath (the reading appears to have been closer to .23, and defendant contends that it was .226). The second test recorded an alcohol concentration of .20 grams of alcohol per 210 liters of breath.\nDefendant was tried and convicted of DWI on 24 March 1988 in district court. He appealed to the superior court for a trial de novo. At the beginning of the trial, defendant orally moved to suppress the results of the chemical analysis. The trial court held a voir dire on the motion, but ultimately denied it. Defendant then entered a plea of guilty, but reserved his right to appeal. The trial court found the defendant guilty of DWI, and from that judgment defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nBarnes, Braswell, Haithcock & Warren, by R. Gene Braswell and Glenn A. Barfield, for defendant appellant." }, "file_name": "0634-01", "first_page_order": 662, "last_page_order": 664 }