Before administering a breathalyzer test in North Carolina, police officers must follow specific procedures to ensure the test's validity and protect the rights of the individual being tested:
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Observation Period: The officer must observe the suspected driver for at least 15 minutes before administering the breathalyzer test. During this time, the officer ensures the individual does not burp, vomit, eat, drink, or do anything that could affect the test results.
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Proper Training and Certification: The officer administering the test must be properly trained and certified to operate the breathalyzer machine.
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Use of Approved Devices: North Carolina uses specific breathalyzer machines such as the Intox EC/IR or Intoxilyzer 5000, which measure blood alcohol content (BAC) by analyzing deep lung air.
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Right to a Witness: Before the test, the individual must be informed that they have the right to have a witness present during the test. If the individual requests a witness, the test administrator must wait 30 minutes to allow the witness to arrive.
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Calibration and Maintenance: The breathalyzer machine must be properly calibrated and maintained according to state standards to ensure accurate results.
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Conducting the Test: The test administrator must perform two breath tests, and the results must be within 0.02 percent of each other for the test to be valid.
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Chemical Analyst Requirement: The person charged must be taken before a chemical analyst authorized to administer the test, ensuring the test is conducted by qualified personnel.
These procedures are designed to uphold the accuracy of the breathalyzer test and protect the legal rights of individuals suspected of driving while impaired in North Carolina. Failure to follow these protocols can impact the admissibility of breathalyzer results in court.
🔴 Immediate Actions (Today or ASAP)
- Request all breathalyzer test records: Ask the police or your attorney for the full records related to your breathalyzer test, including the officer's observation notes, calibration logs, and certification documents.
- Document your experience: Write down everything you remember about the breathalyzer test procedure, including whether you were informed of your rights, if you had a witness, and how the test was administered.
- Do not discuss the case in detail with anyone except your lawyer: Protect your rights by limiting conversations about the incident.
🟡 Short-Term Steps (This Week)
- Consult a qualified DUI or criminal defense attorney in North Carolina: They can review whether the police followed proper breathalyzer protocols and advise you on possible defenses.
- Gather evidence: Collect any video footage, witness statements, or other evidence that might show whether the officer followed the required procedures.
- Request calibration and maintenance logs: Ensure the breathalyzer machine was properly maintained and calibrated before your test.
- Check officer certification: Verify that the officer who administered the test was properly trained and certified.
🟢 Strategic Follow-Up (Next 2-4 Weeks or Longer)
- Work with your attorney to challenge breathalyzer results if protocols were not followed: Improper procedures can lead to suppression of test results in court.
- Prepare for court hearings: Your attorney can help you understand how breathalyzer evidence will be used and what defenses apply.
- Consider independent testing or expert review: If possible, have an expert review the breathalyzer machine's maintenance and calibration history.
- Stay informed about your case status and deadlines: Missing court dates or filing deadlines can harm your defense.
Your Legal Rights
- Right to be informed of breathalyzer test procedures and your rights: In North Carolina, you must be told about your right to have a witness during the test.
- Right to a witness: You can request a witness to be present during the breathalyzer test, and the officer must wait 30 minutes for the witness to arrive.
- Right to challenge evidence: If proper procedures were not followed, you can challenge the validity of the breathalyzer results in court.
- Right to legal representation: You can have a lawyer represent you during questioning and court proceedings.
- Due process rights: You must be treated fairly and the evidence must meet legal standards to be admissible.
Where to Get Help
- North Carolina Legal Aid: Visit legalaidnc.org or call 1-866-219-5262 for free or low-cost legal help.
- North Carolina State Bar Lawyer Referral Service: Call 1-800-662-7660 to find a qualified DUI attorney.
- North Carolina Department of Transportation (NCDOT) - DMV: For information on DUI laws and breathalyzer devices, visit ncdot.gov/dmv.
- Local Public Defender's Office: If you cannot afford a lawyer, you may be eligible for a public defender.
- Consumer Protection Division of the North Carolina Attorney General: For complaints about breathalyzer devices or police conduct, visit ncdoj.gov/consumer.
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