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Monday, September 14, 2009

Driving While Intoxicated in North Carolina- Blood/Breath Test Admissibility

Anyone arrested for driving while intoxicated or a DUI immediately wants to know the result of their breath or blood test. Was I over a .08? Will I face charges if I was .07? These are all valid questions, but a central question right now for a defense attorney is how the District Attorney is going to have breath or blood results admitted at trial. A few months ago the US Supreme Court issued an important ruling in Melendez-Diaz v. Massachusetts that subsequently affects the way DWI/DUI cases are proceeding throughout North Carolina Courts.

Prior to the Melendez-Diaz ruling, state law permitted the District Attorney to admit breath or blood test results by a simple affidavit. The person who administered the breath test would never testify. The chemical analysis of a blood result or breath test was submitted on paper and defense attorneys were not given the opportunity to cross examine the witnesses that performed these crucial tests. A defense attorney could always subpoena the witnesses themselves, but many felt they shouldn't have to. The US Supreme Court essentially agreed and stated in the Melendez-Diaz opinion that the burden "is on the prosecution to present it's witnesses, not on the defendant to bring those adverse witnesses into court." Remember, when a person is accused of a crime, it is the prosecution's burden to prove every element of an offense and everyone is presumed innocent until proven guilty. Prior to this case, I felt the law permitting a blood or breath test result admissible by affidavit essentially shifted the burden to the defense to show that the test was wrong. This effectively made defendants prove their innocence, rather than the prosecution proving their guilt.

So how does this change things on a practical level? The District Attorney must call additional witnesses at trial and cannot rely on an affidavit to prove a breath or blood result. Starting October 1st, there will be additional changes to this law. More on that later. Meanwhile, the District Attorney is sending out extra subpoenas.

Here is a short YouTube video on the subject. Looks like this was done before the Supreme Court issued the opinion: http://www.youtube.com/watch?v=C5HmaDjeH5Y

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posted by Carilyn Ibsen at

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