Unless the context requires otherwise, the following definitions apply throughout this Chapter to the defined words and phrases and their cognates:
(1a) Alcohol. – Any substance containing any form of alcohol, including ethanol, methanol, propanol, and isopropanol.
(1b) Alcohol Concentration. – The concentration of alcohol in a person, expressed either as:
a. Grams of alcohol per 100 milliliters of blood; or
b. Grams of alcohol per 210 liters of breath.
The results of a defendant’s alcohol concentration determined by a chemical analysis of the defendant’s breath or blood shall be reported to the hundredths. Any result between hundredths shall be reported to the next lower hundredth.
(3a) Chemical Analysis. – A test or tests of the breath, blood, or other bodily fluid or substance of a person to determine the person’s alcohol concentration or presence of an impairing substance, performed in accordance with G.S. 20?139.1, including duplicate or sequential analyses.
(3b) Chemical Analyst. – A person granted a permit by the Department of Health and Human Services under G.S. 20?139.1 to perform chemical analyses.
(14a) Impairing Substance. – Alcohol, controlled substance under Chapter 90 of the General Statutes, any other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or any combination of these substances.
(24a) Offense Involving Impaired Driving. – Any of the following offenses:
a. Impaired driving under G.S. 20?138.1.
b. Death by vehicle under G.S. 20?141.4 when conviction is based upon impaired driving or a substantially similar offense under previous law.
c. First or second degree murder under G.S. 14?17 or involuntary manslaughter under G.S. 14?18 when conviction is based upon impaired driving or a substantially similar offense under previous law.
d. An offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.
e. A repealed or superseded offense substantially similar to impaired driving, including offenses under former G.S. 20?138 or G.S. 20?139.
f. Impaired driving in a commercial motor vehicle under G.S. 20?138.2, except that convictions of impaired driving under G.S. 20?138.1 and G.S. 20?138.2 arising out of the same transaction shall be considered a single conviction of an offense involving impaired driving for any purpose under this Chapter.
g. Habitual impaired driving under G.S. 20?138.5.
A conviction under former G.S. 20?140(c) is not an offense involving impaired driving
(25) Operator. – A person in actual physical control of a vehicle which is in motion or which has the engine running. The terms “operator” and “driver” and their cognates are synonymous.
(48b) Under the Influence of an Impairing Substance. – The state of a person having his physical or mental faculties, or both, appreciably impaired by an impairing substance.
(48c) Utility Vehicle. – Vehicle designed and manufactured for general maintenance, security, recreational, and landscaping purposes, but does not include vehicles designed and used primarily for the transportation of persons or property on a street or highway.
§ 20?138.1. Impaired driving.
(a) Offense. – A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.
(b) Defense Precluded. – The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. – In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.
(d) Sentencing Hearing and Punishment. – Impaired driving as defined in this section is a misdemeanor. Upon conviction of a defendant of impaired driving, the presiding judge must hold a sentencing hearing and impose punishment in accordance with G.S. 20?179.
(e) Exception. – Notwithstanding the definition of “vehicle” pursuant to G.S. 20?4.01(49), for purposes of this section the word “vehicle” does not include a horse, bicycle, or lawnmower. (1983, c. 435, s. 24; 1989, c. 711, s. 2; 1993, c. 285, s. 1.)
§ 20?138.2. Impaired driving in commercial vehicle.
(a) Offense. – A person commits the offense of impaired driving in a commercial motor vehicle if he drives a commercial motor vehicle upon any highway, any street, or any public vehicular area within the State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.04 or more.
(b) Defense Precluded. – The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.
(c) Pleading. – To charge a violation of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges the defendant drove a commercial motor vehicle on a highway, street, or public vehicular area while subject to an impairing substance.
(d) Implied Consent Offense. – An offense under this section is an implied consent offense subject to the provisions of G.S. 20?16.2.
(e) Punishment. – The offense in this section is a misdemeanor and any defendant convicted under this section shall be sentenced under G.S. 20?179. This offense is not a lesser included offense of impaired driving under G.S. 20?138.1, and if a person is convicted under this section and of an offense involving impaired driving under G.S. 20?138.1 arising out of the same transaction, the aggregate punishment imposed by the Court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S. 20?138.1.
(f) Repealed by Session Laws 1991, c. 726, s. 19.
(g) Chemical Analysis Provisions. – The provisions of G.S. 20?139.1 shall apply to the offense of impaired driving in a commercial motor vehicle. (1989, c. 771, s. 12; 1991, c. 726, s. 19; 1993, c. 539, s. 363; 1994, Ex. Sess., c. 24, s. 14(c); 1998?182, s. 24.)
§ 20?138.2A. Operating a commercial vehicle after consuming alcohol.
(a) Offense. – A person commits the offense of operating a commercial motor vehicle after consuming alcohol if the person drives a commercial motor vehicle, as defined in G.S. 20?4.01(3d)a. and b., upon any highway, any street, or any public vehicular area within the State while consuming alcohol or while alcohol remains in the person’s body.
(b) Implied?Consent Offense. – An offense under this section is an implied?consent offense subject to the provisions of G.S. 20?16.2. The provisions of G.S. 20?139.1 shall apply to an offense committed under this section.
(b1) Odor Insufficient. – The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(b2) Alcohol Screening Test. – Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to its manner and use.
(c) Punishment. – Except as otherwise provided in this subsection, a violation of the offense described in subsection (a) of this section is a Class 3 misdemeanor and, notwithstanding G.S. 15A?1340.23, is punishable by a penalty of one hundred dollars ($100.00). A second or subsequent violation of this section is a misdemeanor punishable under G.S. 20?179. This offense is a lesser included offense of impaired driving of a commercial vehicle under G.S. 20?138.2.
(d) Second or Subsequent Conviction Defined. – A conviction for violating this offense is a second or subsequent conviction if at the time of the current offense the person has a previous conviction under this section, and the previous conviction occurred in the seven years immediately preceding the date of the current offense. This definition of second or subsequent conviction also applies to G.S. 20?17(a)(13) and G.S. 20?17.4(a)(6). (1998?182, s. 23; 1999?406, s. 15; 2000?140, s. 5; 2000?155, s. 16.)
§ 20?138.2B. Operating a school bus, school activity bus, or child care vehicle after consuming alcohol.
(a) Offense. – A person commits the offense of operating a school bus, school activity bus, or child care vehicle after consuming alcohol if the person drives a school bus, school activity bus, or child care vehicle upon any highway, any street, or any public vehicular area within the State while consuming alcohol or while alcohol remains in the person’s body.
(b) Implied?Consent Offense. – An offense under this section is an implied?consent offense subject to the provisions of G.S. 20?16.2. The provisions of G.S. 20?139.1 shall apply to an offense committed under this section.
(b1) Odor Insufficient. – The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(b2) Alcohol Screening Test. – Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to its manner and use.
(c) Punishment. – Except as otherwise provided in this subsection, a violation of the offense described in subsection (a) of this section is a Class 3 misdemeanor and, notwithstanding G.S. 15A?1340.23, is punishable by a penalty of one hundred dollars ($100.00). A second or subsequent violation of this section is a misdemeanor punishable under G.S. 20?179. This offense is a lesser included offense of impaired driving of a commercial vehicle under G.S. 20?138.1.
(d) Second or Subsequent Conviction Defined. – A conviction for violating this offense is a second or subsequent conviction if at the time of the current offense the person has a previous conviction under this section, and the previous conviction occurred in the seven years immediately preceding the date of the current offense. This definition of second or subsequent conviction also applies to G.S. 20?19(c2). (1998?182, s. 27; 1999?406, s. 16; 2000?140, s. 6; 2000?155, s. 17.)
§ 20?138.2C.
Possession of alcoholic beverages while operating a commercial motor vehicle.
A person commits the offense of operating a commercial motor vehicle while possessing alcoholic beverages if the person drives a commercial motor vehicle, as defined in G.S. 20?4.01(3d), upon any highway, any street, or any public vehicular area within the State while having an open or closed alcoholic beverage in the passenger area of the commercial motor vehicle. This section shall not apply to the driver of a commercial motor vehicle that is also an excursion passenger vehicle, a for?hire passenger vehicle, a common carrier of passengers, or a motor home, if the alcoholic beverage is in possession of a passenger or is in the passenger area of the vehicle. (1999?330, s. 2.)
§ 20?138.3.
Driving by person less than 21 years old after consuming alcohol or drugs.
(a) Offense. – It is unlawful for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed, but a person less than 21 years old does not violate this section if he drives with a controlled substance in his body which was lawfully obtained and taken in therapeutically appropriate amounts.
(b) Subject to Implied?Consent Law. – An offense under this section is an alcohol?related offense subject to the implied?consent provisions of G.S. 20?16.2.
(b1) Odor Insufficient. – The odor of an alcoholic beverage on the breath of the driver is insufficient evidence by itself to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(b2) Alcohol Screening Test. – Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violation of subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to its manner and use.
(c) Punishment; Effect When Impaired Driving Offense Also Charged. – The offense in this section is a Class 2 misdemeanor. It is not, in any circumstances, a lesser included offense of impaired driving under G.S. 20?138.1, but if a person is convicted under this section and of an offense involving impaired driving arising out of the same transaction, the aggregate punishment imposed by the court may not exceed the maximum applicable to the offense involving impaired driving, and any minimum punishment applicable shall be imposed.
(d) Limited Driving Privilege. – A person who is convicted of violating subsection (a) of this section and whose drivers license is revoked solely based on that conviction may apply for a limited driving privilege as provided in G.S. 20?179.3. This subsection shall apply only if the person meets both of the following requirements:
(1) Is 18, 19, or 20 years old on the date of the offense.
(2) Has not previously been convicted of a violation of this section.
The judge may issue the limited driving privilege only if the person meets the eligibility requirements of G.S. 20?179.3, other than the requirement in G.S. 20?179.3(b)(1)c. G.S. 20?179.3(e) shall not apply. All other terms, conditions, and restrictions provided for in G.S. 20?179.3 shall apply. G.S. 20?179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of violating subsection (a) of this section and of driving while impaired as a result of the same transaction. (1983, c. 435, s. 34; 1985 (Reg. Sess., 1986), c. 852, s. 11; 1993, c. 539, s. 364; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 506, s. 6; 1997?379, ss. 4, 5.2; 2000?140, s. 7; 2000?155, s. 18.)
§ 20?138.4.
Requirement that prosecutor explain reduction or dismissal of charge involving impaired driving.
Any prosecutor must enter detailed facts in the record of any case involving impaired driving explaining the reasons for his action if he:
(1) Enters a voluntary dismissal; or
(2) Accepts a plea of guilty or no contest to a lesser included offense; or
(3) Substitutes another charge, by statement of charges or otherwise, if the substitute charge carries a lesser mandatory minimum punishment or is not an offense involving impaired driving; or
(4) Otherwise takes a discretionary action that effectively dismisses or reduces the original charge in the case involving impaired driving.
General explanations such as “interests of justice” or “insufficient evidence” are not sufficiently detailed to meet the requirements of this section. (1983, c. 435, s. 25; 1987 (Reg. Sess., 1988), c. 1112; 1989, c. 771, s. 18.)
§ 20?138.5.
Habitual impaired driving.
(a) A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20?138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20?4.01(24a) within seven years of the date of this offense.
(b) A person convicted of violating this section shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended. Sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served.
(c) An offense under this section is an implied consent offense subject to the provisions of G.S. 20?16.2.
(d) A person convicted under this section shall have his license permanently revoked.
(e) If a person is convicted under this section, the motor vehicle that was driven by the defendant at the time the defendant committed the offense of impaired driving becomes property subject to forfeiture in accordance with the procedure set out in G.S. 20?28.2. In applying the procedure set out in that statute, an owner or a holder of a security interest is considered an innocent party with respect to a motor vehicle subject to forfeiture under this subsection if any of the following applies:
(1) The owner or holder of the security interest did not know and had no reason to know that the defendant had been convicted within the previous seven years of three or more offenses involving impaired driving.
(2) The defendant drove the motor vehicle without the consent of the owner or the holder of the security interest. (1989 (Reg. Sess., 1990), c. 1039, s. 7; 1993, c. 539, s. 1258; 1994, Ex. Sess., c. 14, s. 32; c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 761, s. 34.1; c. 767, s. 32; 1997?379, s. 6.)
§ 20?138.6.
Reserved for future codification purposes.
§ 20?138.7. (Effective until September 30, 2006) Transporting an open container of alcoholic beverage.
(a) Offense. – No person shall drive a motor vehicle on a highway or the right?of?way of a highway:
(1) While there is an alcoholic beverage in the passenger area in other than the unopened manufacturer’s original container; and
(2) While the driver is consuming alcohol or while alcohol remains in the driver’s body.
(a1) Offense. – No person shall possess an alcoholic beverage other than in the unopened manufacturer’s original container, or consume an alcoholic beverage, in the passenger area of a motor vehicle while the motor vehicle is on a highway or the right?of?way of a highway. For purposes of this subsection, only the person who possesses or consumes an alcoholic beverage in violation of this subsection shall be charged with this offense.
(a2) Exception. – It shall not be a violation of subsection (a1) of this section for a passenger to possess an alcoholic beverage other than in the unopened manufacturer’s original container, or for a passenger to consume an alcoholic beverage, if the container is:
(1) In the passenger area of a motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation;
(2) In the living quarters of a motor home or house car as defined in G.S. 20?4.01(27)d2.; or
(3) In a house trailer as defined in G.S. 20?4.01(14).
(a3) Meaning of Terms. – Under this section, the term “motor vehicle” means only those types of motor vehicles which North Carolina law requires to be registered, whether the motor vehicle is registered in North Carolina or another jurisdiction.
(b) Subject to Implied?Consent Law. – An offense under this section is an alcohol?related offense subject to the implied?consent provisions of G.S. 20?16.2.
(c) Odor Insufficient. – The odor of an alcoholic beverage on the breath of the driver is insufficient evidence to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section, unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(d) Alcohol Screening Test. – Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violating subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to the manner of its use.
(e) Punishment; Effect When Impaired Driving Offense Also Charged. – Violation of subsection (a) of this section shall be a Class 3 misdemeanor for the first offense and shall be a Class 2 misdemeanor for a second or subsequent offense. Violation of subsection (a) of this section is not a lesser included offense of impaired driving under G.S. 20?138.1, but if a person is convicted under subsection (a) of this section and of an offense involving impaired driving arising out of the same transaction, the punishment imposed by the court shall not exceed the maximum applicable to the offense involving impaired driving, and any minimum applicable punishment shall be imposed. Violation of subsection (a1) of this section by the driver of the motor vehicle is a lesser?included offense of subsection (a) of this section. A violation of subsection (a) shall be considered a moving violation for purposes of G.S. 20?16(c).
Violation of subsection (a1) of this section shall be an infraction and shall not be considered a moving violation for purposes of G.S. 20?16(c).
(f) Definitions. – If the seal on a container of alcoholic beverages has been broken, it is opened within the meaning of this section. For purposes of this section, “passenger area of a motor vehicle” means the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment. The area of the trunk or the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle shall not be considered part of the passenger area. The term “alcoholic beverage” is as defined in G.S. 18B?101(4).
(g) Pleading. – In any prosecution for a violation of subsection (a) of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a motor vehicle on a highway or the right?of?way of a highway with an open container of alcoholic beverage after drinking.
In any prosecution for a violation of subsection (a1) of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that (i) the defendant possessed an open container of alcoholic beverage in the passenger area of a motor vehicle while the motor vehicle was on a highway or the right?of?way of a highway, or (ii) the defendant consumed an alcoholic beverage in the passenger area of a motor vehicle while the motor vehicle was on a highway or the right?of?way of a highway.
(h) Limited Driving Privilege. – A person who is convicted of violating subsection (a) of this section and whose drivers license is revoked solely based on that conviction may apply for a limited driving privilege as provided for in G.S. 20?179.3. The judge may issue the limited driving privilege only if the driver meets the eligibility requirements of G.S. 20?179.3, other than the requirement in G.S. 20?179.3(b)(1)c. G.S. 20?179.3(e) shall not apply. All other terms, conditions, and restrictions provided for in G.S. 20?179.3 shall apply. G.S. 20?179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of violating subsection (a) of this section and of driving while impaired as a result of the same transaction. (1995, c. 506, s. 9; 2000?155, s. 4.)
§ 20?138.7.
(Effective September 30, 2006) Transporting an open container of alcoholic beverage after consuming alcohol.
(a) Offense. – No person shall drive a motor vehicle on a highway or public vehicular area:
(1) While there is an alcoholic beverage other than in the unopened manufacturer’s original container in the passenger area; and
(2) While the driver is consuming alcohol or while alcohol remains in the driver’s body.
(b) Subject to Implied?Consent Law. – An offense under this section is an alcohol?related offense subject to the implied?consent provisions of G.S. 20?16.2.
(c) Odor Insufficient. – The odor of an alcoholic beverage on the breath of the driver is insufficient evidence to prove beyond a reasonable doubt that alcohol was remaining in the driver’s body in violation of this section, unless the driver was offered an alcohol screening test or chemical analysis and refused to provide all required samples of breath or blood for analysis.
(d) Alcohol Screening Test. – Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violating subsection (a) of this section, and the results of an alcohol screening test or the driver’s refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver’s body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to the manner of its use.
(e) Punishment; Effect When Impaired Driving Offense Also Charged. – Violation of this section shall be punished as a Class 3 misdemeanor for the first offense and shall be punished as a Class 2 misdemeanor for a second or subsequent offense. A fine imposed for a second or subsequent offense may not exceed one thousand dollars ($1,000). Violation of this section is not a lesser included offense of impaired driving under G.S. 20?138.1, but if a person is convicted under this section and of an offense involving impaired driving arising out of the same transaction, the punishment imposed by the court shall not exceed the maximum applicable to the offense involving impaired driving, and any minimum applicable punishment shall be imposed. A violation of this section shall be considered a moving violation for purposes of G.S. 20?16(c).
(f) Definitions. – If the seal on a container of alcoholic beverages has been broken, it is opened within the meaning of this section. For purposes of this section, “passenger area of a motor vehicle” means the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment. The area of the trunk or the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle shall not be considered part of the passenger area. The term “alcoholic beverage” is as defined in G.S. 18B?101(4).
(g) Pleading. – In any prosecution for a violation of this section, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a motor vehicle on a highway or public vehicular area with an open container of alcoholic beverage after drinking.
(h) Limited Driving Privilege. – A person who is convicted of violating subsection (a) of this section and whose drivers license is revoked solely based on that conviction may apply for a limited driving privilege as provided for in G.S. 20?179.3. The judge may issue the limited driving privilege only if the driver meets the eligibility requirements of G.S. 20?179.3, other than the requirement in G.S. 20?179.3(b)(1)c. G.S. 20?179.3(e) shall not apply. All other terms, conditions, and restrictions provided for in G.S. 20?179.3 shall apply. G.S. 20?179.3, rather than this subsection, governs the issuance of a limited driving privilege to a person who is convicted of violating subsection (a) of this section and of driving while impaired as a result of the same transaction.(1995, c. 506, s. 9; 2000?155, s. 4.)
§ 20?139.1.
Procedures governing chemical analyses; admissibility; evidentiary provisions; controlled?drinking programs.
(a) Chemical Analysis Admissible. – In any implied?consent offense under G.S. 20?16.2, a person’s alcohol concentration or the presence of any other impairing substance in the person’s body as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to a person’s alcohol concentration or results of other tests showing the presence of an impairing substance, including other chemical tests.
(b) Approval of Valid Test Methods; Licensing Chemical Analysts. – A chemical analysis, to be valid, shall be performed in accordance with the provisions of this section. The chemical analysis shall be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Health and Human Services for that type of chemical analysis. The Commission for Health Services may adopt rules approving satisfactory methods or techniques for performing chemical analyses, and the Department of Health and Human Services may ascertain the qualifications and competence of individuals to conduct particular chemical analyses. The Department may issue permits to conduct chemical analyses to individuals it finds qualified subject to periodic renewal, termination, and revocation of the permit in the Department’s discretion.
(b1) When Officer May Perform Chemical Analysis. – Except as provided in this subsection, a chemical analysis is not valid in any case in which it is performed by an arresting officer or by a charging officer under the terms of G.S. 20?16.2. A chemical analysis of the breath may be performed by an arresting officer or by a charging officer when both of the following apply:
(1) The officer possesses a current permit issued by the Department of Health and Human Services for the type of chemical analysis.
(2) The officer performs the chemical analysis by using an automated instrument that prints the results of the analysis.
(b2) Breath Analysis Results Inadmissible if Preventive Maintenance Not Performed. – Notwithstanding the provisions of subsection (b), the results of a chemical analysis of a person’s breath performed in accordance with this section are not admissible in evidence if:
(1) The defendant objects to the introduction into evidence of the results of the chemical analysis of the defendant’s breath; and
(2) The defendant demonstrates that, with respect to the instrument used to analyze the defendant’s breath, preventive maintenance procedures required by the regulations of the Commission for Health Services had not been performed within the time limits prescribed by those regulations.
(b3) Sequential Breath Tests Required. – By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. Those regulations must provide:
(1) A specification as to the minimum observation period before collection of the first breath sample and the time requirements as to collection of second and subsequent samples.
(2) That the test results may only be used to prove a person’s particular alcohol concentration if:
a. The pair of readings employed are from consecutively administered tests; and
b. The readings do not differ from each other by an alcohol concentration greater than 0.02.
(3) That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person’s alcohol concentration in any court or administrative proceeding.
A person’s refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20?16.2(c).
A person’s refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.
(b4) Introducing Routine Records Kept as Part of Breath?Testing Program. – 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 ampoules 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?testing 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.
(b5) Subsequent Tests Allowed. – A person may be requested, pursuant to G.S. 20?16.2, to submit to a chemical analysis of the person’s blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of the breath, in the discretion of the charging officer. If a subsequent chemical analysis is requested pursuant to this subsection, the person shall again be advised of the implied consent rights in accordance with G.S. 20?16.2(a). A person’s willful refusal to submit to a chemical analysis of the blood or other bodily fluid or substance is a willful refusal under G.S. 20?16.2.
(c) Withdrawal of Blood for Chemical Analysis. – When a blood test is specified as the type of chemical analysis by the charging officer, only a physician, registered nurse, or other qualified person may withdraw the blood sample. If the person withdrawing the blood requests written confirmation of the charging officer’s request for the withdrawal of blood, the officer shall furnish it before blood is withdrawn. When blood is withdrawn pursuant to a charging officer’s request, neither the person withdrawing the blood nor any hospital, laboratory, or other institution, person, firm, or corporation employing that person, or contracting for the service of withdrawing blood, may be held criminally or civilly liable by reason of withdrawing that blood, except that there is no immunity from liability for negligent acts or omissions.
The chemical analyst who analyzes the blood shall complete an affidavit stating the results of the analysis on a form developed by the Department of Health and Human Services and provide the affidavit to the charging officer and the clerk of superior court in the county in which the criminal charges are pending.
Evidence regarding the qualifications of the person who withdrew the blood sample may be provided at trial by testimony of the charging officer or by an affidavit of the person who withdrew the blood sample and shall be sufficient to constitute prima facie evidence regarding the person’s qualifications.
(d) Right to Additional Test. – A person who submits to a chemical analysis may have a qualified person of his own choosing administer an additional chemical test or tests, or have a qualified person withdraw a blood sample for later chemical testing by a qualified person of his own choosing. Any law?enforcement officer having in his charge any person who has submitted to a chemical analysis shall assist the person in contacting someone to administer the additional testing or to withdraw blood, and shall allow access to the person for that purpose. The failure or inability of the person who submitted to a chemical analysis to obtain any additional test or to withdraw blood does not preclude the admission of evidence relating to the chemical analysis.
(e) Recording Results of Chemical Analysis of Breath. – The chemical analyst who administers a test of a person’s breath shall record the following information after making any chemical analysis:
(1) The alcohol concentration or concentrations revealed by the chemical analysis.
(2) The time of the collection of the breath sample or samples used in the chemical analysis.
A copy of the record of this information shall be furnished to the person submitting to the chemical analysis, or to his attorney, before any trial or proceeding in which the results of the chemical analysis may be used.
(e1) Use of Chemical Analyst’s Affidavit in District Court. – 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:
(1) The alcohol concentration or concentrations or the presence or absence of an impairing substance of a person given a chemical analysis and who is involved in the hearing or trial.
(2) The time of the collection of the blood, breath, or other bodily fluid or substance sample or samples for the chemical analysis.
(3) The type of chemical analysis administered and the procedures followed.
(4) The type and status of any permit issued by the Department of Health and Human Services that the analyst held on the date the analyst performed the chemical analysis in question.
(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.
The Department of Health and Human Services shall 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, the person may subpoena the chemical analyst and examine him as if he were an adverse witness.
(f) Evidence of Refusal Admissible. – If any person charged with an implied?consent offense refuses to submit to a chemical analysis, evidence of that refusal is admissible in any criminal action against him for an implied?consent offense under G.S. 20?16.2.
(g) Controlled?Drinking Programs. – The Department of Health and Human Services may adopt rules concerning the ingestion of controlled amounts of alcohol by individuals submitting to chemical testing as a part of scientific, experimental, educational, or demonstration programs. These regulations shall prescribe procedures consistent with controlling federal law governing the acquisition, transportation, possession, storage, administration, and disposition of alcohol intended for use in the programs. Any person in charge of a controlled?drinking program who acquires alcohol under these regulations must keep records accounting for the disposition of all alcohol acquired, and the records must at all reasonable times be available for inspection upon the request of any federal, State, or local law?enforcement officer with jurisdiction over the laws relating to control of alcohol. A controlled?drinking program exclusively using lawfully purchased alcoholic beverages in places in which they may be lawfully possessed, however, need not comply with the record?keeping requirements of the regulations authorized by this subsection. All acts pursuant to the regulations reasonably done in furtherance of bona fide objectives of a controlled?drinking program authorized by the regulations are lawful notwithstanding the provisions of any other general or local statute, regulation, or ordinance controlling alcohol.
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