STATE OF NORTH CAROLINA v. CYNTHIA WALLACE SHUPING
SUPREME COURT OF NORTH CAROLINA

Defendant was convicted for driving while impaired. She appealed her conviction and the state Supreme Court granted review. Essentially, defendant contended that there was insufficient evidence to submit the 0.10 per se offense to the jury because the breathalyzer test results were inaccurate since they were subject to a 0.01 percent margin of error. The state supreme court affirmed defendant's conviction. It found no merit in the defendant's assertion that the 0.01 instrumental margin of tolerance allowed during simulator testing equated to a 0.01 "margin of error" during actual testing of the defendant's breath. The 0.01 deviation allowance below the expected reading of 0.10 during simulation procedures was a safeguard to insure that when the actual test was subsequently run, any possible error during actual testing was in favor of defendant. Accordingly, the trial court correctly determined that the breathalyzer operator complied with the Department of Human Resources Regulations and the statutory provisions before admitting the chemical analysis of defendant's breath into evidence.

ISSUES:

Was evidence insufficient evidence to constitute offense because the breathalyzer test results are inaccurate since they are subject to a 0.01 percent margin of error?

DISCUSSION:

Essentially, the statute made driving with a blood-alcohol concentration (BAC) of 0.10 percent or more a lesser included offense or separate method of proving the offense of driving while under the influence of intoxicants. Additionally, under former G.S. 20-139.1 the result of a chemical test yielding a 0.10 or greater created a presumption that the person was under the influence of intoxicating liquor.  However, the 1983 Act created one substantive offense (DWI) but provided two methods of proving the offense: (1) that the State prove actual driver impairment; or (2) that the State prove only that the defendant operated a vehicle on a public highway or public vehicular area with an alcohol concentration of 0.10 or more at any relevant time after the driving. The present statutory scheme does not depend upon a presumption.  Defendant contends that there is a 0.01 "margin of error" in the breathalyzer instrument. Therefore, it is contended defendant's BAC could have been 0.09, since her breathalyzer reading was 0.10 and the breathalyzer "varies up and down by 0.01."  Basically, defendant argues that the 0.01 instrumental margin of tolerance allowed during simulator testing equates to a 0.01 "margin of error" during actual testing of the defendant's breath. This is simply not the case. The 0.01 deviation allowance below the expected reading of 0.10 during simulation procedures is a safeguard to insure that when the actual test is subsequently run, any possible error during actual testing is in favor of defendant. Stated differently, when the machine yields a 0.10 during simulation testing, the machine is operating accurately. A subsequent reading of the defendant's breath will then render a reading that is reliable.  Furthermore, when the machine yields a 0.09 during simulation testing, within the allowable margin of tolerance that means it is testing on the low side. Thus, when a subsequent test is actually conducted on defendant, the reading from the machine is lower than the actual BAC. Thus, when defendant in this case blew a 0.10 after the machine had yielded a 0.09 during the simulation test, her actual BAC could have been a 0.11 rather than a 0.10. Consequently, any "error," if error there be, was fully in favor of defendant.  Courts in several states have reviewed the accuracy and reliability of breath-testing devices, including the Breathalyzer Models 900 and 900A, and have determined them to be reliable scientific instruments.  Once it is determined that the chemical analysis of the defendant's breath was valid, then a reading of 0.10 constitutes reliable evidence and is sufficient to satisfy the State's burden of proof as to this element of the offense of DWI.

JUDGMENT:

The state Supreme Court affirmed defendant's conviction for driving while impaired.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content