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Stat.", "year": 1983, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 1 }, { "cite": "72 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "opinion_index": 1 }, { "cite": "236 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622191 ], "weight": 2, "year": 1952, "opinion_index": 1, "case_paths": [ "/nc/236/0019-01" ] }, { "cite": "393 U.S. 314", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11314381 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "315" } ], "opinion_index": 1, "case_paths": [ "/us/393/0314-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "295" } ], "opinion_index": 1, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/us/403/0443-01" ] }, { "cite": "427 U.S. 618", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180144 ], "weight": 2, "year": 1976, "opinion_index": 1, "case_paths": [ "/us/427/0618-01" ] }, { "cite": "358 U.S. 825", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3651621, 3654826, 3650334, 3653013, 3659582, 3650975 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/us/358/0825-03", "/us/358/0825-02", "/us/358/0825-04", "/us/358/0825-01", "/us/358/0825-06", "/us/358/0825-05" ] }, { "cite": "409 U.S. 1043", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6465475, 6464804, 6464645, 6465064, 6465259, 6464717, 6464877, 6464975, 6465584, 6465361, 6465138, 6464474, 6464543 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/us/409/1043-12", "/us/409/1043-05", "/us/409/1043-03", "/us/409/1043-08", "/us/409/1043-10", "/us/409/1043-04", "/us/409/1043-06", "/us/409/1043-07", "/us/409/1043-13", "/us/409/1043-11", "/us/409/1043-09", "/us/409/1043-01", "/us/409/1043-02" ] }, { "cite": "188 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "294", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "281 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574647 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/nc/281/0221-01" ] }, { "cite": "255 F. 2d 476", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 681989 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/f2d/255/0476-01" ] }, { "cite": "156 U.S. 237", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1488083 ], "weight": 4, "year": 1895, "opinion_index": 1, "case_paths": [ "/us/156/0237-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 6, "year": 1980, "pin_cites": [ { "page": "64" }, { "page": "606" } ], "opinion_index": 1, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 5, "year": 1970, "pin_cites": [ { "page": "174" }, { "page": "506" } ], "opinion_index": 1, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "231 S.E. 2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "291 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558867 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/291/0640-01" ] }, { "cite": "173 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "276 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562463 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nc/276/0535-01" ] }, { "cite": "409 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171363 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/us/409/0057-01" ] }, { "cite": "560 F. 2d 45", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 938031 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/f2d/560/0045-01" ] } ], "analysis": { "cardinality": 2229, "char_count": 74538, "ocr_confidence": 0.82, "pagerank": { "raw": 3.842211128248101e-07, "percentile": 0.8992601499160762 }, "sha256": "c8ef16cbe49de97b81bc47a064a6150b1251a7c6a020ec21cce499d2a1a2faba", "simhash": "1:e6319652272fc55b", "word_count": 12157 }, "last_updated": "2023-07-14T18:10:57.145273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices EXUM and FRYE join in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. EILEEN M. SMITH" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe defendant was charged under N.C.G.S. \u00a7 20-138.1 with the offense of impaired driving. Prior to trial the defendant filed and served a motion to suppress an affidavit prepared pursuant to N.C.G.S. \u00a7 20-139.1(e), contending that its admission into evidence would violate her right to confrontation. Following a hearing in District Court, Judge W. Terry Sherrill denied the motion. Upon the defendant\u2019s petition to Superior Court for a writ of certiorari, Judge Grist affirmed. Judge Grist\u2019s Order recites inter alia the following facts pertinent to this appeal:\n2. On December 6, 1983, defendant Eileen M. Smith appeared in District Court on a North Carolina Uniform Citation charging her with the offense of driving while impaired on November 2, 1983.\n3.Prior to trial, the defendant made a motion through her attorneys, J. Marshall Haywood, Eben T. Rawls, and Lyle J. Yurko of the Mecklenburg County Bar, that the Honorable W. Terry Sherrill, District Court Judge Presiding, prohibit the State of North Carolina from introducing at her trial the affidavit of the chemical analyst to prove her alcohol concentration as provided in N.C.G.S. 20-139.1(el). It was stipulated for purposes of the motion that the State would offer the affidavit at the criminal trial and that the affidavit met all the requirements for admissibility mandated by N.C.G.S. 20-139.1 (el).\n4. On February 15, 1984, having considered the evidence offered, the argument of counsel and the memoranda submitted by both parties, Judge Sherrill ruled that the affidavit provisions of N.C.G.S. 20-139.1(el) do not violate the defendant\u2019s right to confront the witness against her and her right to a fair trial as secured by the Sixth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of North Carolina.\n5. On March 15, 1984, upon petition by the defendant for certiorari review of the District Court\u2019s ruling pursuant to Rule 19 of the General Rules of Practice for the Superior and District Courts, the Honorable William T. Grist, Resident Superior Court Judge granted said petition and scheduled arguments for April 5, 1984.\n6. Article IV, section 13 of the Constitution of the State of North Carolina provides that the General Assembly has the authority to determine the rules of practice and procedure in the District Court Division as long as such rules of procedure do not violate the Constitution.\nBased on these and other findings, Judge Grist concluded that:\n1. It is presumed that N.C.G.S. 20-139.1(el) is constitutional and that who attacks it must overcome this presumption.\n2. The use of a chemical analyst\u2019s affidavit, in lieu of the analyst\u2019s live appearance, by the State in a criminal trial in the District Court Division of the General Court of Justice as proof of the facts noted in the chemical analyst\u2019s affidavit, does not deny to the criminal defendant any right or privilege granted by the Constitution of the United States or the Constitution of the State of North Carolina.\n3. N.C.G.S. 20-139.1(el) is constitutional under the provisions of the Sixth Amendment to the United States Constitution and sections 19 and 23 of Article I of the Constitution of the State of North Carolina.\nThe Court of Appeals allowed the defendant\u2019s petition for certiorari to review the Order of the Superior Court. We allowed the State\u2019s petition for discretionary review prior to a determination by the Court of Appeals.\nThe defendant challenges the constitutionality of a statutory provision which the State contends is necessary for the effective administration of the Safe Roads Act, N.C.G.S. \u00a7\u00a7 20-138.1 to 140. The section in question, N.C.G.S. \u00a7 20-139.1(el), provides:\n(el) Use of Chemical Analyst\u2019s Affidavit in District Court. \u2014 An affidavit by a chemical analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any hearing or trial in the District Court Division of the General Court of Justice with respect to the following matters:\n(1) The alcohol concentration or concentrations of a person given a chemical analysis and who is involved in the hearing or trial.\n(2) The time of the collection of the blood or breath sample or samples for the chemical analysis.\n(3) The type of chemical analysis administered and the procedures followed.\n(4) The type and status of any permit issued by the Department of Human Resources that he held on the date he performed the chemical analysis in question.\n(5) If the chemical analysis is performed on a breath-testing instrument for which regulations adopted pursuant to subsection (b) require preventive maintenance, the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown on the maintenance records for that instrument.\nThe Department of Human Resources must develop a form for use by chemical analysts in making this affidavit. If any person who submitted to a chemical analysis desires that a chemical analyst personally testify in the hearing or trial in the District Court Division, he may subpoena the chemical analyst and examine him as if he were an adverse witness.\nIt is the defendant\u2019s contention that evidence of her alleged impairment, as demonstrated by the results of a chemical analysis performed on a breath-testing instrument, must be introduced in District Court through the in-court testimony of the analyst in order to assure her right to confront and cross-examine witnesses against her. The defendant specifically rejects any notion that her constitutional right in this regard is adequately protected by her statutory right to subpoena the analyst. Nor is the defendant willing to concede that her constitutional right to confrontation is adequately preserved in that the presence of the analyst is assured should she choose to exercise her right to a trial de novo in Superior Court pursuant to N.C.G.S. \u00a7 7A-290.\nFor the reasons set forth herein, we hold that our legislature, through N.C.G.S. \u00a7 20-139.1(el), has enacted a constitutionally permissible procedure attuned to scientific and technological advancements which have insured reliability in chemical testing for blood alcohol concentration. We further hold that this statutory procedure does not violate the accused\u2019s right to confrontation.\nThe defendant\u2019s constitutional challenge to N.C.G.S. \u00a7 20-139.1(el) evolves from the fact that the evidence presented in the form of an affidavit is hearsay. \u201cWhenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay.\u201d 1 Brandis on North Carolina Evidence \u00a7 138 (1982). The primary purpose for the hearsay rule is to insure an opportunity for cross-examination.\nIf the declarant were testifying, the adverse party could by cross-examination inquire into the narrator\u2019s capacity and opportunity to observe the facts which he related, the reliability of his memory, his ability to express his thoughts intelligibly and accurately, and his disposition to tell the truth generally or with respect to the particular case. When his hearsay statements are offered the opportunity to test these qualities of perception, memory, narration and veracity is greatly lessened and often completely destroyed.\nId. \u00a7 139.\nN.C.G.S. \u00a7 20-139.1(el) has effectively created a statutory exception to the hearsay rule. This Court has recognized the authority of the legislature, our law-making body, to make such exceptions. See In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977). See also 1 Brandis on North Carolina Evidence \u00a7 165 (\u201cAffidavits relating to particular matters have in some instances been made admissible by statute.\u201d). Our recently enacted Rules of Evidence, provide that \u201c[h]earsay is not admissible except as provided by statute or by these rules.\u201d (Emphasis added.) N.C.G.S. \u00a7 8C-1, Rule 802. The legislature therein codified its own inherent right to enact, under appropriate circumstances, statutory exceptions to the hearsay rule.\nBy recognizing the authority of the legislature in this instance to enact N.C.G.S. \u00a7 20-139.1(el) as an exception to our traditional hearsay rule, we do not intend to intimate that the challenged provision came as a result of arbitrary action unrelated to the general policies or purposes underlying the rules against hearsay. Indeed, we believe that N.C.G.S. \u00a7 20-139.1(el) reflects a rationale which complies fully with historically recognized legitimate reasons for exceptions to the general rule against hearsay evidence. Furthermore, we are cognizant of the fact that a statutory exception to the hearsay rule may nevertheless violate constitutional guarantees of the right of confrontation. See California v. Green, 399 U.S. 149 (1970).\nFor purposes of our analysis, however, we do not intend to discuss the defendant\u2019s constitutional issue in academic isolation. To do so would be to ignore the practical, common-sense rules which, over the years, our courts have applied in dealing with the competing interests of the accused who asserts a right to confront and cross-examine witnesses and the State which asserts a need to introduce relevant hearsay evidence. Indeed, a literal reading of the Sixth Amendment\u2019s Confrontation Clause would require the exclusion of any statement made by a declarant not present at trial and \u201cabrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.\u201d Ohio v. Roberts, 448 U.S. 56, 63 (1980). Thus, although the right of confrontation is a fundamental right, it \u201cmust occasionally give way to considerations of public policy and the necessities of the case.\u201d Mattox v. United States, 156 U.S. 237, 243 (1895). For example, in Ohio v. Roberts the Supreme Court recognized that \u201cevery jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings,\u201d and further noted that \u201ccompeting interests, if \u2018closely examined,\u2019 Chambers v. Mississippi, 410 U.S. at 295, 93 S.Ct. at 1046, may warrant dispensing with confrontation at trial.\u201d 448 U.S. at 64.\nIn addition, it has been recognized that the \u201cSixth Amendment\u2019s Confrontation Clause and the evidentiary hearsay rule stem from the same roots,\u201d Dutton v. Evans, 400 U.S. 74, 86 (1970), and that they are \u201cgenerally designed to protect similar values.\u201d California v. Green, 399 U.S. 149 (1970). Like the hearsay rule, \u201c[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.\u201d 5 Wigmore on Evidence \u00a7 1395 (Chadbourn rev. 1974).\nIn determining that the prodecure set forth in N.C.G.S. \u00a7 20-139.1(el) is constitutionally sound and rejecting the defendant\u2019s contention that the State must, as a prerequisite to the admissibility of the analyst\u2019s affidavit, show that the analyst is unavailable to testify, we refer to Justice Harlan\u2019s concurring opinion in Dutton v. Evans. There, Justice Harlan reevaluated his earlier position in California v. Green, to the extent that he had advocated a \u201cpreferential rule, requiring the prosecutor to avoid the use of hearsay where it is reasonably possible for him to do so.\u201d He concluded that:\nA rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant. Examples which come to mind are the Business Records Act, 28 USC \u00a7\u00a7 1732-1733, and the exceptions to the hearsay rule for official statements, learned treatises, and trade reports. See, e.g., Uniform Rules of Evidence 63(15), 63(30), 63(31); Gilstrap v. United States, 389 F. 2d 6 (CA 5 1968) (business records); Kay v. United States, 255 F. 2d 476 (CA 4 1958) (laboratory analysis). If the hearsay exception involved in a given case is such as to commend itself to reasonable men, production of the declarant is likely to be difficult, unavailing, or pointless. In unusual cases, of which the case at hand may be an example, the Sixth Amendment guarantees federal defendants the right of compulsory process to obtain the presence of witnesses, and in Washington v. Texas, 388 U.S. 14, 18 L.Ed. 2d 1019, 87 S.Ct. 1920 (1967), this Court held that the Fourteenth Amendment extends the same protection to state defendants.\n400 U.S. at 95-96.\nAgainst this background we consider whether the State of North Carolina may constitutionally rely upon the affidavit of a chemical analyst during a trial in District Court in order to sustain a charge of impaired driving. The Sixth Amendment provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.\u201d In Pointer v. Texas, 380 U.S. 400 (1965), the Supreme Court held that the Sixth Amendment right of confrontation includes the opportunity to cross examine and applies to state proceedings as well as to the federal courts. The Constitution of North Carolina incorporates a similar right. N.C. Const. Article I, \u00a7\u00a7 19 and 23. See State v. Watson, 281 N.C. 221, 188 S.E. 2d 289, cert. denied, 409 U.S. 1043 (1972). In California v. Green, the Supreme Court offered the following insight concerning the underlying purpose of the Sixth Amendment right to confrontation:\nOur own decisions seem to have recognized at an early date that it is this literal right to \u201cconfront\u201d the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause:\n\u201cThe primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.\u201d Mattox v. United States, 156 U.S. 237, 242-243, 39 L.Ed. 409, 411, 15 S.Ct. 337 (1895).\n399 U.S. at 157-58.\nUnquestionably, testing the accuracy and credibility of witnesses presented against an accused is vital to the factfinding process. Equally true is that where there has been \u201csubstantial compliance with the purposes behind the confrontation requirement,\u201d hearsay evidence may be admitted. California v. Green, 399 U.S. at 166. For example, it is well established that certain exceptions to the hearsay rule, such as the business and public records exceptions, \u201crest upon such solid foundations that admission of virtually any evidence within them comports with the \u2018substance of the constitutional protection.\u2019 \u201d Ohio v. Roberts, 488 U.S. at 66. See Mattox v. United States, 156 U.S. 237 (1895).\nBecause we believe that the statutory exception to the hearsay rule created by N.C.G.S. \u00a7 20-139.1(el) has as its basis the sound reasoning which gave rise to the business and public records exceptions to the rule, it is helpful to view the statute in that context. In his treatise on evidence, Wigmore explains that although \u201c[t]he principle of necessity ... in one form or another is found in all the hearsay exceptions,\u201d under some circumstances, including the official statements (business and public records) exception,\nsomething less than an absolute impossibility is regarded as sufficient. The necessity reduces itself to a high degree of expediency. In none of these exceptions is it required that the witness be shown to be unavailable by reason of death, absence, or the like circumstances.\nIn the present exception, it is easy to see why it is highly expedient, if not practically necessary, to accept the hearsay statement of an official, in certain classes of cases, instead of summoning him to attend and testify viva voce before a court or by deposition before a commissioner. The public officers are few in whose daily work something is not done which must later be proved in court; and the trials are rare in which testimony is not needed from official sources. Were there no exception for official statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering their depositions before an officer. The work of administration of government and the needs of the public having business with officials would alike suffer in consequence. Although, then, there is strictly no necessity for employing hearsay in the sense that the personal attendance of the officer is corporally impossible to obtain, there is nevertheless a high degree of expediency that the public business be not deranged by insisting on the strict enforcement of the hearsay rule.\n5 Wigmore on Evidence \u00a7 1631 (Chadbourn rev. 1974).\nWigmore continues by noting that \u201cthe second essential for an exception to the hearsay rule is that some circumstantial probability of trustworthiness be found, to take the place of cross-examination so far as may be.\u201d As to official statements, trustworthiness stems from the presumption that\npublic officers do their duty. When it is a part of the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he does his duty and makes a correct statement. The consideration that regularity of habit, a chief basis for the exception for regular entries . . . will tend to this end is not here an essential one; for casual statements, such as certificates, may be admissible, as well as a regular series of entries in a registry. The fundamental circumstance is that an official duty exists to make an accurate statement, and that this special and weighty duty will usually suffice as a motive to incite the officer to its fulfilment. The duty may or may not be one for whose violation a penalty is expressly prescribed. The officer may or may not be one from whom in advance an express oath of office is required. No stress seems to be laid judicially on either of these considerations; nor need they be emphasized. It is the influence of the official duty, broadly considered, which is taken as the sufficient element of trustworthiness, justifying the acceptance of the hearsay statement.\nId.\nAs recently applied in a case involving the analysis of a controlled substance, one court discussed the rationale for the rule governing admissibility of a written statement of an act done or an act, condition or event observed by a public official as follows:\nThe rule is both realistic and practical. Being charged with the obligation of accuracy, a public official\u2019s report is accorded a presumption of trust. And to require that a public official relinquish continued attention to the other tasks within his responsibility merely to repeat orally that which he has already written disserves the public. The rule is to be viewed and implemented in this context.\nState v. Malsbury, 186 N.J. Super. 91, 97, 451 A. 2d 421, 424 (1982). The exception to the hearsay rule governing public records and reports has been invoked consistently by courts as the basis for admitting into evidence certificates concerning qualifications of the individual calibrating the breathalyzer instrument; calibration, maintenance, inspection, and testing of the instrument; approval of the laboratory testing the sample; testing of ampules and similator solutions used in such instruments, including the fact that they contained properly compounded materials; and the results of analysis. See, e.g., State v. Huggins, 659 P. 2d 613 (Alaska App. 1982); (relying on Wester v. State, 528 P. 2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836 (1975)); Best v. State, 328 A. 2d 141 (Del. 1974); Douglas v. State, 145 Ga. App. 42, 243 S.E. 2d 298 (1978); People v. Black, 84 Ill. App. 3d 1050, 406 N.E. 2d 23 (1980); State v. Jensen, 351 N.W. 2d 29 (Minn. App. 1984); State v. Becker, 429 S.W. 2d 290 (Mo. App. 1968); State v. Conners, 129 N.J. Super. 476, 324 A. 2d 85 (1974); People v. Freeland, 118 Misc. 2d 486, 460 N.Y.S. 2d 907 (1983); State v. Walker, 53 Ohio St. 2d 192, 374 N.E. 2d 132 (1978); Brown v. State, 584 P. 2d 231 (Okla. 1978); State v. Smith, 66 Or. App. 703, 675 P. 2d 510 (1984); Commonwealth v. Sweet, 232 Pa. Super. 372, 335 A. 2d 420 (1975); State v. Robbins, 512 S.W. 2d 265 (Tenn. 1974); Murray City v. Hall, 663 P. 2d 1314 (Utah 1983). Cf, N.C.G.S. \u00a7 20-139.1(b4) (Interim Supp. 1984) (Business Record exception to the hearsay rule for reports, logs and certificates relating to breath-testing instruments).\nIn each of the above cases a court was presented with the accused\u2019s argument that he was entitled to confront and cross-examine th\u00e9 individual responsible for preparing the document in question. In each case, the court found, explicitly or implicitly, that the document was not primarily testimonial but rather was merely the recordation of a fact as easily and as reliably proved by the document itself as by live testimony. Furthermore, the information contained in the document was of a type which by its mere recordation in the ordinary course of business, would be sufficiently reliable to be accepted as trustworthy evidence.\nWe recognize that each of these cases rests on its own facts, each construes statutes and rules of evidence which differ from those of North Carolina, and each involves a breathalyzer procedure unique to the particular equipment used. From these cases, however, emerges one significant fact: the science of breath analysis for alcohol concentration has become increasingly reliable, increasingly less dependent on human skill of operation, and increasingly accepted as a means for measuring blood alcohol concentration.\nIn this regard we have taken judicial notice of the fact that in North Carolina breath testing for blood alcohol concentration generally is conducted on equipment which requires minimal operator assistance. For example, The Intoxilizer, Model 4011AS, which uses a technique called infrared absorption, requires the operator to perform the following steps to conduct the test:\n(1) Insure \u201cReady\u201d light is on and that breath tube is connected to pump tube;\n(2) Insert test record. Turn mode selector to \u201cZero Set\u201d. Turn zero adjust until .000 appears. Turn mode selector to \u201cAir Blank\";\n(3) Insure alcoholic breath simulator thermometer shows proper operating temperature. After \u201cAir Blank\u201d cycle is completed, turn mode selector to \u201cZERO Set\u201d and connect breath and pump tube to alcoholic breath simulator;\n(4) Turn zero adjust until .000 appears and turn mode selector to \u201cCalibrator\u201d. Insure expected results are displayed and record time;\n(5) Connect breath tube to pump tube. Turn mode selector to \u201cAir Blank\u201d. After cycle is complete, turn mode selector to \u201cZero Set\u201d;\n(6) Insure observation period requirements have been met;\n(7) Turn zero adjust until .000 appears. Turn mode selector to \u201cBreath\u201d;\n(8) Turn digital display off;\n(9) Collect breath sample. Record time;\n(10) Turn digital display on;\n(11) Connect breath tube to pump tube. Turn mode selector to \u201cAir Blank\u201d. After cycle is complete, turn mode selector to \u201cZero Set\u201d;\n(12) For second test, repeat steps (6) through (11);\n(13) Remove test record and record results.\nIf the alcohol concentrations differ by more than 0.02, a third or subsequent test shall be administered as soon as feasible by repeating steps (6) through (11) and (13).\nN. C. Admin. Code tit. 10, \u00a7 7B.0344 (effective January 1, 1985). The results of the test are recorded on a computer printout card. The Breathalyzer, Model 2000, and the Intoximeter, Model 3000 also employ computer technology to test and record the results of breath samples. Regulations for the operation of these instruments are similar.\nIn short, the scientific and technological advancements which have made possible this type of analysis have removed the necessity for a subjective determination of impairment, so appropriate for cross-examination, and have increasingly removed the operator as a material element in the objective determination of blood alcohol concentration. Indeed, our legislature\u2019s recognition of this reliable and accurate innovation of blood alcohol concentration testing is manifested in N.C.G.S. \u00a7 20-138.1(a)(2) which now provides that a person who \u201cafter having consumed sufficient alcohol that he has, at any relevant time after driving, an alcohol concentration of 0.10 or more\u201d commits the offense of impaired driving.\nThe defendant argues, and we agree, that the result of a breathalyzer analysis is crucial to a conviction. It has been suggested that the breathalyzer procedure now available for objectively determining blood alcohol concentration lends itself to the somewhat startling conclusion that in reality the \u201cwitness\u201d against the defendant, the source of the crucial and incriminating evidence, is not the analyst but the machine itself. In State v. Robbins, 512 S.W. 2d 265 (Tenn. 1974), the court concluded as much in holding that the laboratory technician who analyzed a specimen of the defendant\u2019s breath for the purpose of determining its alcoholic concentration, was not a \u201cwitness\u201d for purposes of confrontation. The court relied on the reasoning of United States v. Beasley, 438 F. 2d 1279 (6th Cir.), cert. denied, 404 U.S. 866, reh. denied, 404 U.S. 1006 (1971). In Beasley, the defendant contended that the Government\u2019s failure to call the technician who processed the defendant\u2019s latent palm print from a holdup note violated his Sixth Amendment right to confrontation. The Court responded that:\n[T]here could have been nothing accusatorial in the technician\u2019s testimony that he properly performed the mechanical test of \u201cbringing out\u201d the latent prints on the note paper; therefore he was not a witness \u201cagainst\u201d the Appellant, and the Sixth Amendment guarantee of confrontation and cross examination does not apply.\n438 F. 2d at 1281.\nIn the present case, N.C.G.S. \u00a7 20-139.1(el) permits the chemical analyst to attest by affidavit to certain objective facts which he or she has a statutory duty to record after complying with certain procedures and guidelines adopted by the Commission for Health Services. The analyst is at no time called upon to render an opinion or to draw conclusions. See, e.g., State v. Watson, 281 N.C. 221, 188 S.E. 2d 289, cert. denied, 409 U.S. 1043 (1972) (error to admit hearsay and conclusory statement as to cause of death pursuant to N.C.G.S. \u00a7 130-66). The analyst is required at the time of testing to record the alcohol concentration as indicated by the machine, the time of collection, the type of analysis performed, the type and status of his permit, and the date of the most recent preventive maintenance. N.C.G.S. \u00a7 20-139.1(el)(l)-(5). The resulting information is precisely the sort of evidence that the traditional business and public records exceptions to the hearsay rule intended to make admissible. \u201c \u2018It cannot be thought that the Constitution was intended to close the door to the legislative department of government to establish new public records with like probative value.\u2019 \u201d Kreck v. Spalding, 721 F. 2d 1229, 1243 (9th Cir. 1983) (quoting Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923)). It bears repeating that the exceptions to the hearsay rule are not static, \u201cbut may be enlarged from time to time if there is no material departure from the reason of the general rule.\u201d Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934)).\nThe significance of applying the rationale underlying the business and public records exceptions to the hearsay rule in the present case thus becomes obvious: first, the exceptions may be invoked irrespective of the availability of the maker of the document; and second, admissibility is not limited to non-crucial evidence. For purposes of admissibility, the critical question becomes one of reliability. Reliability, when translated into terms of the accused\u2019s Sixth Amendment right to confront and cross-examine witnesses, has been described as\nan inquiry into the likelihood that cross-examination of the declarant at trial could successfully call into question the declaration\u2019s apparent meaning or the declarant\u2019s sincerity, perception, or memory.\nKreck v. Spalding, 721 F. 2d at 1244 (citing to Congressional Research Service Library of Congress, The Constitution of the United States of America \u2014 Analysis and Interpretation 1214 (1973), explaining the rule in Dutton v. Evans).\nIt is unlikely in cases such as the case before us that cross-examination of the chemical analyst at trial could \u201csuccessfully call into question the declaration\u2019s apparent meaning or the declarant\u2019s sincerity, perception or memory.\u201d Rather, to require every analyst to testify in such cases would be \u201cunduly inconvenient and of small utility.\u201d Dutton v. Evans, 400 U.S. at 96 (Harlan, J. concurring). As Justice Harlan concluded in Dutton, \u201c[i]f the hearsay exception involved in a given case is such as to commend itself to reasonable men, production of the declarant is likely to be difficult, unavailing, or pointless.\u201d Id. See United States v. Yakobov, 712 F. 2d 20 (2d Cir. 1983). When we consider the nature of the evidence \u2014 a well recognized scientifically designed test for determining blood alcohol concentration \u2014 together with the duty of the analyst to follow carefully delineated guidelines in conducting the test and the objective nature of the facts recorded, both the need for and the utility of confrontation at trial in District Court appear minimal.\nThe State correctly points out that in District Court in North Carolina we have an educated and experienced fact-finder. The District Court Judge presides over hundreds of DWI cases each year. He hears testimony almost every day in numerous cases concerning analysis of alcohol concentration by different instruments. Cross-examination of analysts and all the arguments concerning whether the defendant had a blood alcohol concentration at a certain level have been made in court before him. The need for him to judge the demeanor of the analyst is greatly reduced. In addition, the testimony will be limited to the procedures set forth in N.C.G.S. \u00a7 20-139.1 and the rules of the Department of Human Resources. The demeanor of a witness in testifying whether he followed the rules is of limited value under this system.\nFinally, we find persuasive the reasoning of Kay v. United States, 255 F. 2d 476 (4th Cir.), cert. denied, 358 U.S. 825 (1958), and State v. Larochelle, 112 N.H. 392, 297 A. 2d 223 (1972). In Kay the Court specifically held that the admission of a certificate which showed the alcohol concentration of an accused\u2019s blood sample as determined by chemical analysis did not deprive the accused, charged with reckless and drunken driving, of his federal or state constitutional right to confrontation. At the time that the blood test was administered in Kay, Virginia law did not require one so charged to submit to the chemical analysis. See Code Va. 1950 \u00a7\u00a7 18-75, 18-75.1 to 75.3, 18.76 (repealed by Acts 1960, c. 358). Those statutory provisions have since been amended to require submission to chemical analysis. See Code Va. \u00a7 18.2-268 (Cum. Supp. 1984). Since the decision in Kay, Virginia has made it \u201cunlawful for any person to drive or operate any motor vehicle . . . while such person has a blood alcohol concentration of 0.15. . . .\u201d Code Va. \u00a7 18.2-266. However, Kay continues to be cited with approval both in Virginia and in other jurisdictions. See, e.g., Dutton v. Evans, 400 U.S. 74 (1970); State v. Bauer, 109 Wis. 2d 204, 325 N.W. 2d 857 (1982); United States v. Yakobov, 712 F. 2d 20 (2d Cir. 1983); Kreck v. Spalding, 721 F. 2d 1229 (9th Cir. 1983); Robertson v. Cox, 320 F. Supp. 900 (W.D. Va. 1970); SAS v. State of Maryland, 295 F. Supp. 389 (D. Md. 1969); Howard v. United States, 473 A. 2d 835 (D.C. App. 1984); State v. Malsbury, 186 N.J. Super. 91, 451 A. 2d 421 (1982); People v. Hayes, 470 N.Y.S. 2d 485 (1983).\nIn Kay the court recognized that the presumptions in the statute relating to alcoholic concentration in the blood were \u201cnot merely procedural,\u201d but \u201camounted] to a redefinition of the offense,\u201d much as the 0.10 blood alcohol concentration under N.C.G.S. \u00a7 20-138.1 now defines an offense of impaired driving. 255 F. 2d at 479. In addressing the defendant\u2019s Sixth Amendment argument, the court wrote:\nAdmission of the certificate did not deprive the defendant of his right of confrontation by witnesses. Neither the Sixth Amendment to the Constitution of the United States nor Article I, Section 8 of the Constitution of Virginia can be said to have incorporated the rule against hearsay evidence, as understood at the time of their adoption. Each was intended to prevent the trial of criminal cases upon affidavits, not to serve as a rigid and inflexible barrier against the orderly development of reasonable and necessary exceptions to the hearsay rule.\nThe power of Congress and of a state legislature to provide for the admission of evidence is not subject to any such arbitrary limitation as the defendant supposes. They may carve out a new exception to the hearsay rule, without violating constitutional rights, where there is reasonable necessity for it and where it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; United States v. Leathers, 2 Cir., 135 F. 2d 507; Matthews v. U.S., 5 Cir., 217 F. 2d 409.\nCertificates quite comparable to this one have been held admissible over objection upon similar constitutional grounds. See Bracey v. Commonwealth, 119 Va. 867, 89 S.E. 144; State v. Torello, 103 Conn. 511, 131 A. 429; Commonwealth v. Slav- ski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281; Commonwealth v. Stoler, 259 Mass. 109, 156 N.E. 71. The alcoholic content of the blood, the evidentiary fact sought to be proved by the certificate may be accurately determined by well recognized chemical procedures. It is an objective fact, not a mere expression of opinion, and its proof by introduction of the certificate violates no constitutional right of the defendant.\n255 F. 2d at 480-81.\nIn State v. Larochelle, 112 N.H. 392, 297 A. 2d 223 (1972), the Supreme Court of New Hampshire recognized the inherent reliability of various blood alcohol concentration tests and held that when \u201cgathered and recorded pursuant to a public duty\u201d and admitted in compliance with statutory requirements, the tests carry \u201csufficient characteristics of trustworthiness to be safely placed before the trier of fact without confrontation of the tester.\u201d Id. 397, 297 A. 2d at 226. See State v. Dunsmore, 112 N.H. 382, 297 A. 2d 230 (1972); see also State v. King, 187 Conn. 292, 445 A. 2d 901 (1982). The court in Larochelle cited as authority for its holding Dutton v. Evans, 400 U.S. 74 (1970) and Kay v. United States, 255 F. 2d 476 (4th Cir.), cert. denied, 358 U.S. 825 (1958). The court noted that the statute in question, RSA 262-A:69K (supp.), which provides that the official report of the test is deemed conclusive evidence of the test results unless the accused files notice requiring the attendance of the certified operator, indicated a \u201clegislative reliance upon the common-law official written statements exception to the hearsay rule.\u201d Id. at 394, 297 A. 2d at 225. We reach a similar conclusion.\nIn reaching our result in the present case, we are aware of the contrary line of cases originating with the decision in United States v. Oates, 560 F. 2d 45 (2d Cir. 1977), particularly in light of the fact that our legislature has recently enacted the North Carolina Rules of Evidence which substantially track the Federal Rules of Evidence. See N.C.G.S. \u00a7 8C-1. In Oates, the court was asked to construe Rule 803(8) of the Federal Rules of Evidence which permits, as do our North Carolina rules, admitting into evidence all\n\u2014 Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law-enforcement personnel, or (C) in civil cases and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.\nId. at 66-67. The court held that exhibits purporting to be the official report and accompanying worksheet of a United States customs service chemist who analyzed a white powdery substance determined to be heroin were inadmissible under the \u201claw enforcement official\u201d exception to Rule 803(8). The court found that the evidence was \u201ccrucial\u201d to the government\u2019s case to prove an essential element of the crime, and that the government therefore had to \u201cbear the burden of producing extra-judicial declarants, or of demonstrating their genuine unavailability. . . .\u201d Id. at 83. The court strongly intimated that the evidence would be inadmissible under any rule governing the admissibility of hearsay statements.\nIn response to the defendant\u2019s argument that Oates is controlling in this case, we first reiterate that although we have recognized our legislature\u2019s reliance on the traditional business records and public records exceptions to the hearsay rule in enacting N.C.G.S. \u00a7 20-139.1(el), the statute represents a separate and distinct exception governed by the procedures followed by chemical analysts in impaired driving cases. Important among these is that the report be \u201csworn to and properly executed before an official authorized to administer oaths . . .\u201d N.C.G.S. \u00a7 20-139.1(el) (emphasis added). A recent amendment to N.C.G.S. \u00a7 20-139.1 indicates that the legislature was aware of the statutorily enacted Code of Evidence, particularly Rule 803(8). N.C.G.S. \u00a7 20-139.1(b4) was added effective July 6, 1984, and provides:\n(b4) Introducing Routine Records Kept as Part of Breath-Testing Program. \u2014 In civil and criminal proceedings, any party may introduce, without further authentication, simulator logs and logs for other devices used to verify a breath-testing instrument, certificates and other records concerning the check of ampules and of simulator stock solution and the stock solution used in any other equilibration device, preventive maintenance records, and other records that are routinely kept concerning the maintenance and operation of breath-taking instruments. In a criminal case, however, this subsection does not authorize the State to introduce records to prove the results of a chemical analysis of the defendant or of any validation test of the instrument that is conducted during that chemical analysis.\nThis provision clearly authorizes the introduction of reports, logs and certificates dealing with the procedures involved in the operation of the breathalyzer. Only the results of the test are excluded under this section. When those results meet the additional requirements of N.C.G.S. \u00a7 20-139.1(el), however, they are admissible in District Court. Thus we view the (b4) amendment as a codification of the business records exception for the purposes of records and reports pertaining to the operation and maintenance of breath-testing equipment, which in no way affects a separate determination of whether the results of the tests would be admissible under N.C.G.S. \u00a7 20-139.1(el) when sworn to and properly executed before an official authorized to administer oaths.\nFurthermore, the reasoning of Oates has been questioned by the very court rendering the decision in that case. See Annot. 56 A.L.R. Fed. 168 \u00a7 5 (1982), United States v. Cambindo Valencia, 609 F. 2d 603 (2d Cir. 1979), cert. denied, 446 U.S. 940 (1980); United States v. Grady, 544 F. 2d 598 (2d Cir. 1976); see also United States v. Neff, 615 F. 2d 1235 (9th Cir.), cert. denied, 447 U.S. 925 (1980). More persuasive than Oates are two cases decided subsequent thereto \u2014one concerning the admissibility of certificates of breathalyzer machine inspections, State v. Smith, 66 Or. App. 703, 675 P. 2d 510 (1984), and the second concerning the admissibility of the report of a chemical analysis of drugs pursuant to the Uniform Controlled Substances Act, Howard v. United States, 473 A. 2d 835 (D.C. App. 1984). In Smith, the defendant argued that the Oregon Evidence Code 803(8)(b) excluded the certificates of breathalyzer inspections because the individual conducting the inspection was \u201claw enforcement personnel\u201d and the certificates related to \u201cmatters observed\u201d in connection ^ with a \u201ccriminal case.\u201d The defendant relied qn Oates. The Oregon court disagreed:\nWe conclude that, in adopting FRE 803(8)(B), Congress did not intend to change the common law rule allowing admission of public records of purely \u201cministerial observations.\u201d Rather, Congress intended to prevent prosecutors from attempting to prove their cases through police officers\u2019 reports of their observations during the investigation of crime. United States v. Grady, 544 F. 2d 598, 604 (2d Cir. 1976). We infer that the state legislature adopted OEC 803(8)(b) with the same intent.\n66 Or. App. at \u2014, 675 P. 2d at 512. See State v. Huggins, 659 P. 2d 613 (Alaska App. 1982).\nIn Howard v. United States, 473 A. 2d 835 (D.C. App. 1984), the court was clearly aware of the decision in Oates but chose to follow a long line of cases including In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977), in holding that evidence consisting of the written reports of chemical analysis by the Drug Enforcement Agency was admissible under the business records exception to the hearsay rule. The court noted that the identity of the substance was determined by a well-recognized chemical procedure, the reports contained objective facts rather than expressions of opinion, and the chemists who conducted the tests did so routinely and generally did not have an interest in the outcome of trials. The court furthermore held that because the \u201c[a]dmission of the reports into evidence [did] not preclude a defendant from inquiring into the reliability of the testing procedure or the qualifications of the chemists\u201d in that he was \u201cfree to subpoena the reporting chemist without cost,\u201d the defendant was not \u201csubstantially disadvantaged by the government\u2019s failure to call the out-of-court declarant, and confrontation rights [were] effectively preserved.\u201d Id. 839.\nWe do not find the reasoning of Oates persuasive. Instead, we adopt the reasoning of the overwhelming majority of courts which have considered issues such as those raised by the defendant in this case. Accordingly, we hold that the right to confrontation guaranteed by the Sixth Amendment to the Constitution of the United States and Article I, \u00a7\u00a7 19 and 23 of the Constitution of North Carolina is not violated by the procedure provided by N.C.G.S. \u00a7 20-139.1(el) for admission into evidence of the affidavit of an analyst who does not testify at trial.\nEven if it is assumed arguendo that the defendant has an absolute constitutional right to confront and cross-examine the analyst in cases such as the present case \u2014 an idea we reject \u2014 that right is fully protected at two levels. At the District Court level, the defendant is entitled to subpoena the analyst and examine him as an adverse witness, as on cross-examination. The defendant contends, however, that this unfairly shifts the burden to a defendant to prove non-compliance with some aspect of the procedure and does not \u201ccure\u201d the alleged constitutional error. We do not agree. Unless the information contained in the affidavit is challenged, it is presumed correct. See State v. Larochelle, 112 N.H. 392, 297 A. 2d 223 (1972). Failure to summon the analyst results in a waiver of any right to examine the analyst and contest the findings. Id. See Howard v. United States, 473 A. 2d 835 (D.C. App. 1984); State v. Robbins, 512 S.W. 2d 265 (Tenn. 1974) (defendant waived a \u201cpersonal constitutional right\u201d to confront a chemical analyst by \u201cknowingly\u201d failing to subpoena him); see also Stroupe v. Commonwealth, 215 Va. 243, 207 S.E. 2d 894 (1974) (with respect to the regularity of the test, the statute affords the defendant the right to prove noncompliance with test procedures and such evidence affects the weight rather than the admissibility of the certificate).\nFinally, the defendant\u2019s right to confront the analyst is ultimately guaranteed by her absolute right to trial de novo in Superior Court. In this regard, the defendant argues that a violation of her constitutional rights in District Court cannot be cured merely because the case is subject to appeal and trial de novo in a higher court. She cites as authority Ward v. Monroeville, 409 U.S. 57 (1972). In Ward the Supreme Court rejected the argument that a violation of the accused\u2019s right to a neutral and detached judge in the first instance was rendered constitutionally acceptable where the accused was permitted to appeal for a trial de novo. We do not find Ward controlling in the present case.\nIn State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970), this Court held that the right of an appeal from District Court resulting in a trial de novo in Superior Court effectively preserved the defendant\u2019s right to a trial by jury. We stated:\nInfringement upon the constitutional right of these defendants to trial by jury is not apparent. Although initially tried in the district court before the judge without a jury, defendants had, and exercised, an absolute right to a jury trial de novo in the superior court pursuant to G.S. 7A-288 (now G.S. 7A-290) and G.S. 15-177.1. It is established law in North Carolina that trial de novo in the superior court is a new trial from beginning to end, on both law and facts, disregarding completely the plea, trial, verdict and judgment below; and the superior court judgment entered upon conviction there is wholly independent of any judgment which was entered in the inferior court. \u201cThe fact that a right of appeal was given where the defendant was convicted in the lower court without the intervention of a jury has generally been regarded as a sufficient reason, in support of the validity of such trials without a jury in the inferior tribunal, as by appealing the defendant secures his right to a jury trial, in the Superior Court, and therefore cannot justly complain that he has been deprived of his constitutional right.\u201d State v. Pulliam, 184 N.C. 681, 114 S.E. 394. Accord: State v. Norman, 237 N.C. 205, 74 S.E. 2d 602.\nId. at 543, 173 S.E. 2d at 771. See Ludwig v. Massachusetts, 427 U.S. 618 (1976); see also North v. Russell, 427 U.S. 328 (1976) (accused, subject to possible imprisonment, is not denied due process when tried before a nonlawyer police court judge with a later trial de novo available under a State\u2019s two-tier court system).\nThe two-tier court system in North Carolina provides simple and speedy trials of misdemeanor cases in District Court, while at the same time insuring every defendant the absolute right to a full jury trial in Superior Court. In Justices of Boston Municipal Court v. Lydon, \u2014 U.S. \u2014, 80 L.Ed. 2d 311 (1984), the Supreme Court, in the context of a double jeopardy issue, described the de novo hearing as follows:\nWhile technically [the defendant] is \u201ctried again,\u201d the second stage proceeding can be regarded as but an enlarged, fact \u2014 sensitive part of a single, continuous course of judicial proceedings during which, sooner or later, a defendant receives more \u2014rather than less \u2014of the process normally extended to criminal defendants in this nation.\nId. at \u2014, 80 L.Ed. 2d at 325. In his concurring opinion, Justice Brennan noted that the two-tier system provides a defendant with two full opportunities to be acquitted on the facts, and commented that\nPerhaps more importantly, the defendant\u2019s realization throughout the first-tier trial that he has an absolute right to a second chance necessarily mitigates the sense of irrevocability that normally attends the factfinding stage of criminal proceedings, from beginning to end. For these reasons, the defendant\u2019s prospective knowledge of his entitlement to a second factfinding opportunity substantially diminishes the burden imposed by the first proceeding as well as the significance of a guilty verdict ending that proceeding.\nId. at \u2014, 80 L.Ed. 2d at 335. We believe that the language quoted above represents a recognition that for purposes of protecting certain constitutional rights, the two-tier system must frequently be viewed as providing a single continuous proceeding in which those rights are preserved for the \u201csecond factfinding opportunity.\u201d In the present case the defendant\u2019s opportunity to confront and cross-examine the chemical analyst is not foreclosed but appropriately preserved for a de novo trial before a jury in Superior Court.\nIndeed, this Court has itself implicitly recognized that, where the opportunity to confront and cross-examine a chemical analyst is ultimately assured in Superior Court, a statute providing for the admission of the analyst\u2019s report in District Court is not unconstitutional. In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977). In Arthur we considered whether N.C.G.S. \u00a7 90-95(g) applied to delinquency proceedings. The statute provided the basis for the admission into evidence of a written report of an S.B.I. laboratory analysis which concluded that certain \u201cgreen vegetable material\u201d found in the defendant\u2019s possession was marijuana. The chemical analyst did not testify at the defendant\u2019s trial in District Court. The statute authorized the admission of such reports \u201cwithout further authentication in all proceedings in the district court division of the General Court of Justice. . . .\u201d Because in delinquency proceedings \u201cthe district court [was] the ultimate fact-finding forum,\u201d and the juvenile was afforded no opportunity for a trial de novo in Superior Court, we held that N.C.G.S. \u00a7 90-95(g) did not apply. Id. at 643, 231 S.E. 2d at 617. In construing the import of the statute we stated that we were \u201cconfident that the legislature at the time of its enactment had in mind the great majority of district court criminal proceedings ... in which, in misdemeanor cases, an appeal of right to the superior court lies for a trial de novo.\u201d 291 N.C. at 642-43, 231 S.E. 2d at 616 (emphasis added). We noted further that:\n[t]he policy underlying General Statute 90-95(g) is obviously one of convenience to the state. By permitting the written report of the chemical analysis to serve as evidence of the truth of the analysis itself the statute relieves busy SBI and other chemists from having to spend time traveling to and from courthouses throughout the state for the purpose of testifying.\nId. at 643, 231 S.E. 2d at 616.\nBased upon the foregoing authority and reasoning we conclude that even when it is assumed arguendo that the defendant has a constitutional right to confront the chemical analyst who conducted the breathalyzer test pursuant to N.C.G.S. \u00a7 20-139.1, the right is guaranteed during the de novo trial on appeal to Superior Court which offers the second factfinding opportunity in the continuous proceeding provided by our two-tier court system. Since N.C.G.S. \u00a7 20-139.1(el) states that the defendant additionally may subpoena the analyst and examine him as an adverse witness in any hearing or trial in District Court, the defendant in fact is given an easy method for confronting the analyst at each factfinding opportunity in our two-tier system. Far from denying the defendant the opportunity to confront and cross-examine the analyst, the statute grants an additional opportunity for confrontation and cross-examination. It violates neither the Sixth Amendment to the Constitution of the United States nor the Constitution of North Carolina. The order of the Superior Court, Mecklenburg County, which is the subject of this appeal is\nAffirmed.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Martin\ndissenting.\nI respectfully dissent. The recent efforts of the Governor and General Assembly of North Carolina to improve highway safety are indeed laudatory. It is essential to the safety of the public that the dangers of drinking and driving be reduced and eliminated. However, even in such praiseworthy pursuits, constitutional principles must be preserved. See Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971).\nI find that the use of the affidavit as evidence pursuant to N.C.G.S. 20-139.1(el) violates the confrontation clause of the federal and state constitutions. U.S. Const, amend. VI; N.C. Const, art. I, \u00a7 23.\nA brief look at the historical reasons for the confrontation clause is helpful. At the common law in the seventeenth century it was a common practice to try criminal defendants on evidence which consisted solely of ex parte affidavits or depositions, thus denying the defendant the opportunity to challenge his accuser in a face-to-face encounter in front of the trier of the fact. The confrontation clause was included in the federal and state constitutions for the purpose of preventing this method of trial. California v. Green, 399 U.S. 149, 26 L.Ed. 2d 489 (1970). Among the purposes of the confrontation clause are: (1) to ensure that the witness will give his testimony under oath, impressing upon him the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury, (2) requiring the witness to submit to cross-examination, certainly the greatest method of discovering the truth, and (3) to allow the fact finder to observe the demeanor of the witness and determine the credibility to be given to his testimony. Id. The famous case of the trial of Sir Walter Raleigh for treason in 1603 gave strong impetus to the development of the confrontation clause. The crucial evidence against Raleigh consisted of a series of statements by one Cobham, charging Raleigh with complicity in a plot to seize the English throne. Raleigh demanded that Cobham be produced to testify face to face at his trial. This request was denied. Subsequently, after a long period of incarceration in the Tower of London, Raleigh was executed.\nThe right of confrontation is broader than the right of cross-examination. A defendant has a right to face his accusers and to have the witnesses against him appear before the fact finder and give their testimony under oath, as well as to be subject to cross-examination in the event that the defendant desires to do so.\nThese means of testing accuracy are so important that the absence of proper confrontation at trial \u201ccalls into question the ultimate \u2018integrity of the fact-finding process.\u2019 \u201d Chambers v. Mississippi, 410 U.S. 284, 295, 35 L.Ed. 2d 297, 93 S.Ct. 1038 (1973), quoting Berger v. California, 393 U.S. 314, 315, 21 L.Ed. 2d 508, 89 S.Ct. 540 (1969).\nOhio v. Roberts, 448 U.S. 56, 64, 65 L.Ed. 2d 597, 606 (1980). The primary objective of the confrontation clause is to prevent the use of depositions or ex parte affidavits in criminal cases in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but also of compelling him to stand face to face with members of the jury in order that they may look at him and judge him by his demeanor upon the stand and the manner in which he gives his testimony to determine what weight and credit they should give to the same. Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409 (1895). This cannot be done when the witness comes before the court in the garb of an affidavit.\nToday one cannot doubt the fundamental nature of the right of confrontation. Along with the right to be represented by counsel, the right to present evidence, and the right to an impartial judiciary, the right of confrontation lies at the very core and foundation of the criminal trial process. These are the hallmarks of a fair criminal trial. While the legislature may adopt reasonable rules of evidence, it may not encroach upon fundamental constitutional guarantees. The legislature has the power to alter or create rules of evidence, except for rules of evidence which have been expressly sanctioned by the constitution, such as the privilege against self-incrimination and the right of confrontation and cross-examination. State v. Scoggin, 236 N.C. 19, 72 S.E. 2d 54 (1952). There are occasions when the confrontation rule must yield to exceptional circumstances. Principally, they are when the witness is truly unavailable because of death or other similarly compelling circumstances and when there has been provided sufficient indicia of reliability of the evidence that would afford the trier of fact an opportunity for evaluating the truth of the evidence. Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597; Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409. But the confrontation clause requires the state to produce any available witness whose declarations it seeks to use in a criminal trial. California v. Green, 399 U.S. 149, 174, 26 L.Ed. 2d 489, 506 (Justice Harlan concurring). Also, if the evidence to be offered does not address an essential issue in the case, there is less reason to rigidly adhere to the requirements of the confrontation clause. In other words, such an exception would not be likely to result in prejudicial error.\nTurning now to the majority opinion, it attempts to justify the result reached by first asserting that what the legislature has done is to create a statutory exception to the hearsay rule. As stated above, the legislature has the authority to so do, provided it does not thereby trample upon constitutional guarantees such as the right to be represented by counsel or the rights under the confrontation clause. State v. Scoggin, 236 N.C. 19, 72 S.E. 2d 54. The issue at bar is not a simple one of whether the challenged evidence is admissible as an exception to the hearsay rule. It is a constitutional issue.\nThe majority analyzes the issue as being similar to the hearsay exception for business and public records. The affidavit as allowed by the challenged statute is not a business or public record within the meaning of that exception to the hearsay rule. While it is true that evidence in certificate or affidavit form concerning the qualifications of a breathalyzer operator, the inspection and testing of such machines, and the testing of the ampules and other materials used in the test have been admitted into evidence as an exception to the hearsay rule on the basis of business or public records, that evidence is substantially different from an affidavit which purports to show the essential gravamen of the charged offense, namely, the alcohol concentration of the defendant. N.C. Gen. Stat. \u00a7 20-138.1(a)(2) (1983). The above referred to exceptions concern themselves with things done in the ordinary course of maintaining the equipment and maintaining the skill of the operator of the equipment, and those records are entered in the normal course of business. They are made ante litem motam, that is, when the declarant had no motive to distort the truth in the keeping of these records. Specific prosecution against a particular defendant is not in mind at the time these records are made.\nHowever, the affidavit in the present case was prepared for the specific purpose of being used by the state in the prosecution and trial of this defendant. Therefore, there is clearly reason to determine that such evidence does not bear the indicia of reliability required of all exceptions to the hearsay rule: the person preparing the affidavit is not preparing business records from a position of neutrality with respect to prosecution of criminal defendants; instead, he is an agent of the state whose accuracy in performing the incriminating test and recording its results deserves the most rigorous examination. See Ohio v. Roberts, 448 U.S. 56, 65 L.Ed. 2d 597.\nThe majority argues that the equipment used for the purpose of performing these tests is extremely accurate and that there is very little opportunity for the operator to influence the result of the test. However, critical evidence of a key element of an offense, such as the affidavit in this case, should never be admissible without compliance with the confrontation clause, regardless of how reliable and accurate the evidence appears to be. Although the operator has a statutory duty to prepare the affidavit in question, the fact that it is required by statute does not cure the constitutional defect. Additionally, even though required by statute, that does not guarantee the accuracy or trustworthiness of the affidavit. The majority would hold that if the evidence is reliable, then it should be competent, regardless of the confrontation clause. This appears to be putting the cart before the pony, because it is the process of confrontation that makes the evidence reliable.\nThe majority says that the district court judge is an educated and experienced fact finder. This of course may very well be true in some cases, but in others a defendant can just as easily be tried the first day that a district court judge is upon the bench. This seems to me to be a slender reed upon which to establish an exception to a constitutional requirement.\nThe majority relies upon Kay v. United States, 255 F. 2d 476 (4th Cir.), cert. denied, 358 U.S. 825 (1958). It must be remembered that in Kay the results of the blood alcohol analysis were only evidence of the defendant\u2019s guilt of driving under the influence. In the present prosecution, the results of the analysis for alcohol constitute the very crucial element of the offense to be proved: if the defendant has a alcohol concentration greater than the statutory maximum, he is guilty of the offense. This was not so in Kay. This fact is a powerful distinction between the two cases. The evidence in the Kay fact situation comes closer to being a peripheral or nonessential factor of the offense, rather than being the central issue in the case as is true in the present appeal. I find the reasoning in United States v. Oates, 560 F. 2d 45 (2d Cir. 1977), to be more persuasive. In that case the Court held that where the evidence was necessary to prove an essential element of the offense, the government had the burden to produce the witnesses or to demonstrate that they were in truth unavailable to testify. The affidavit in question before us is not one based upon purely ministerial observations, but is one designed specifically to prosecute and convict the defendant in the very case in question.\nNext, the majority argues that because the statute grants the defendant the right to call the operator as an adverse witness, it serves as a saving clause for the statute. This part of the statute does not grant the defendant anything new. Prior to the statute he had a constitutional right to call the operator as a witness. Moreover, allowing the defendant to call the operator and examine him as an adverse witness does not solve the constitutional dilemma. The state has the burden of proving all of the elements of the offense. In re Winship, 397 U.S. 358, 25 L.Ed. 2d 368 (1970). Procedures which shift the burden of persuasion of an element of the offense to the defendant are constitutionally impermissible. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508 (1975). Requiring the defendant to produce the witness, who will provide critical evidence of the essential element of the offense, so as to safeguard the defendant\u2019s right to confront that very witness surely offends due process standards. Further, the statute apparently contemplates the defendant calling the operator as a witness after the state has introduced the affidavit into evidence. The statute expressly states that the affidavit, if properly executed, is admissible in evidence without further authentication. This means that when the defendant calls the operator for the purpose of cross-examining him concerning the facts surrounding the alcohol level test, he is doing so after the state has established a prima facie case. The evidence adduced by such cross-examination would not go to the admissibility of the affidavit in question but would simply go to the credibility of the facts stated in the affidavit. By the time the defendant is allowed to begin the race, the state has already crossed the finish line, and defendant is faced with the unpleasant duty of attempting to demonstrate to the trier of fact, the judge, that he should give little weight to the affidavit in deciding the factual issues.\nIf the legislature had made a provision in the statute that upon motion the defendant could call the operator as a witness in a voir dire hearing to determine the admissibility of the affidavit, the constitutional issue with respect to confrontation would not be so pivotal. This would allow a defendant to attack the admissibility of the affidavit and the test results before they were allowed into evidence, and the calling of the operator would be a meaningful exercise of the defendant\u2019s right of cross-examination and confrontation. However, this the General Assembly did not do, leaving the defendant with the meaningless cross-examination of the operator after the state has made out its case against the defendant by the admission of the affidavit.\nThe majority then seeks to justify its holding by reciting that the defendant has a right to a trial de novo before a jury in the superior court. This, of course, is true. To me, this is simply a statement that constitutional rights are not guaranteed in the district court and that this is not error because one can assert them on trial de novo in the superior court. As we all know, practically all criminal cases that are tried in the district court are finally disposed of in that court. Only a small percentage are appealed to the superior court for trial de novo. Not all defendants have the financial means to bring their cases to the superior court, and if the expense of such trials is placed upon the state, additional financial burdens will be lodged against the taxpayers. This could be easily avoided by protecting defendants\u2019 constitutional rights at the trial of first instance.\nI find the case of Ward v. Monroeville, 409 U.S. 57, 34 L.Ed. 2d 267 (1972), both instructive and persuasive. In Ward the defendant was tried in the first instance by a mayor who had inconsistent responsibilities for revenue production and law enforcement. The defendant contended that this violated his due process rights, particularly the guarantee of a trial before a disinterested and impartial judicial officer. In that case the Supreme Court held that even though the defendant was entitled to an appeal as a matter of right and a trial de novo, an accused is entitled to a neutral and detached judge in the first instance and the trial by the mayor was not constitutionally acceptable. The Ward Court\u2019s holding is very appropriate here in that although the state eventually offers the defendant a fair trial, that does not mean that his initial trial can be constitutionally defective. The right of confrontation is a core element of a fair trial and, as Ward demonstrates, a trial procedure containing a constitutional defect cannot stand. The principle in Ward is also distinguishable from those cases that hold that the right to trial by jury is not violated where a defendant has a de novo right of appeal to obtain a trial by jury, the difference being that a defendant can have a fair trial without a jury. A judge can give a defendant just as fair a trial as a defendant can receive when he is tried by a jury, but where a fundamental right of a defendant is violated in a trial, whether by jury trial or bench trial, that violation cannot be cured by a trial de novo. It is the very fairness issue which has been violated in the initial trial and which cannot be cured by subsequent retrial. For these reasons, I find State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970), and Ludwig v. Massachusetts, 427 U.S. 618, 49 L.Ed. 2d 732 (1976), to be distinguishable. Both of those cases deal with the right of trial de novo for the purpose of obtaining a jury trial. In neither of these cases is it argued or contended that the defendant did not receive a fair trial at his trial in the inferior court. Defendant simply argued that he was entitled to a jury trial in the court of first instance. In this regard the majority cites In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977). This case concerned delinquency proceedings and was a case of statutory construction. Arthur did not reach the constitutional issue with which this Court is now faced. In Arthur the Court, through Justice Exum, expressly stated that no opinion as to the correctness of the constitutional arguments was made by the Court, the case being decided upon statutory issues rather than constitutional principles.\nFurther support for this dissent is found in Dist. of Columbia v. Clawans, 300 U.S. 617, 81 L.Ed. 843 (1937), where defendant was charged with an offense triable at the first instance without a jury. The Supreme Court held that as the offense was punishable by not more than ninety days, it was a \u201cpetty\u201d offense and could be tried without a jury. However, the Court further held that defendant\u2019s conviction must be reversed because the trial court had prejudicially restricted defendant\u2019s constitutional right of confrontation. Where fundamental rights affect the fairness of a trial, they must be safeguarded at the initial trial.\nFinally, I find that State v. Watson, 281 N.C. 221, 188 S.E. 2d 289, cert. denied, 409 U.S. 1043 (1972), strongly supports a defendant\u2019s right of confrontation. Watson was a case involving the use in evidence of an authenticated copy of a death certificate for the purpose of proving an essential element of the homicide charge, the cause of death. In discussing the defendant\u2019s constitutional right of confrontation with respect to the North Carolina and federal constitutions, this Court, through Justice (now Chief Justice) Branch, stated:\nThe right of confrontation confirms the common-law rule that, in criminal trials, the witnesses must be present and subject to cross-examination. . . . The right of confrontation is an absolute right rather than a privilege, and it must be afforded an accused not only in form but in substance.\nId. at 230, 188 S.E. 2d at 294 (citations omitted). This statement of principle applies with equal fervor in the present appeal. I find N.C.G.S. 20-139.1(el), in its present form, to be a violation of the defendant\u2019s constitutional right of confrontation.\nJustices EXUM and FRYE join in this dissenting opinion.\n. Whether the affidavit is admissible as evidence in the superior court is an open question. However, if the majority\u2019s position that the confrontation clause is not violated by the use of the affidavit in the district court is sound, there appears to be no reason why the affidavit, properly authenticated, would not be admissible in the superior court.", "type": "dissent", "author": "Justice Martin" } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, David Roy Blackwell, Assistant Attorney General, and W. Dale Talbert, Assistant Attorney General, for the State.", "Haywood, Carson & Merryman, by Lyle J. Yurko, J. Marshall Haywood, Eben T. Rawls, and Joseph L. Ledford for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EILEEN M. SMITH\nNo. 271PA84\n(Filed 4 December 1984)\nAutomobiles and Other Vehicles g 126.2; Constitutional Law g 70\u2014 driving while impaired \u2014 use of affidavit to prove alcohol concentration \u2014 no violation of right to confrontation\nG.S. 20-139.1(el), which provides for the introduction of an affidavit from a chemical analyst to prove alcohol concentration, does not violate a defendant\u2019s Sixth Amendment right to confrontation. Although the affidavit is a form of hearsay, the Legislature has created a statutory exception to the hearsay rule, based on the business and public records exception, which is constitutionally permissible because the science of breath analysis for alcohol concentration has become increasingly reliable, increasingly less dependent on human skill of operation, and increasingly accepted as a means for measuring blood alcohol concentration; the information the analyst is required to record is precisely the sort of evidence that the traditional business and public records exception is intended to make admissible, and does not call for an opinion or conclusion from the analyst; the nature of the evidence and the carefully delineated guidelines for the analyst make the need for and the utility of confrontation at trial minimal, especially when North Carolina has an educated and experienced factfinder in the district court judge; the admission of affidavits to prove alcohol concentration represents a distinct exception to the hearsay rule governed by the procedures followed by analysts in impaired driving cases, including the requirement that the report be sworn to and properly executed before an authorized official; and defendant may subpoena the analyst in district court and has the absolute right to trial de novo in superior court, where the analyst must appear. North Carolina Constitution Art. I, \u00a7\u00a7 19 and 23; G.S. 8C-1, Rules 802 and 803; G.S. 20-139.1(b4); G.S. 7A-290.\nJustice Martin dissenting.\nJustices Exum and Frye join in the dissenting opinion.\nOn discretionary review of an Order of Judge William T. Grist entered at the April 2, 1984 Mixed Session of Superior Court, MECKLENBURG County. On May 15, 1984, the Court of Appeals allowed the defendant\u2019s petition for writ of certiorari. On July 7, 1984, the Supreme Court allowed the State\u2019s petition for discretionary review prior to determination by the Court of Appeals. N.C.G.S. \u00a7 7A-31(b). Heard in the Supreme Court on October 9, 1984.\nRufus L. Edmisten, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, David Roy Blackwell, Assistant Attorney General, and W. Dale Talbert, Assistant Attorney General, for the State.\nHaywood, Carson & Merryman, by Lyle J. Yurko, J. Marshall Haywood, Eben T. Rawls, and Joseph L. Ledford for defendant appellant." }, "file_name": "0361-01", "first_page_order": 391, "last_page_order": 423 }