State v. Lockwood

336 S.E.2d 678 (1985)

STATE of North Carolina v. Robert Ery LOCKWOOD.

No. 8521SC734.

Court of Appeals of North Carolina.

December 3, 1985.

Atty. Gen. Lacy H. Thornburg, by Associate Atty. Gen. Mabel Y. Bullock, for the State.

Alexander, Wright, Parrish, Hinshaw, Tash and Newton, by Carl F. Parrish, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant contends that the trial court erred in denying his motion to suppress the results of the test taken with the Breathalyzer Model 2000. He argues that the chemical analyst who administered the test did not follow the regulations of the Commission for Health Services for sequential breath testing and that the Commission failed to set out the time requirements for *679 sequential breath testing as required by G.S. 20-139.1. We disagree with both of defendant's arguments.

G.S. 20-139.1 provides, in pertinent part, as follows:

(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 must 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.

The Commission for Health Services provided in 10 N.C.Admin.Code 7B .0102 (18) that the observation period prior to the collection of a breath sample is fifteen minutes. The procedure for administering a test with the Model 2000 Breathalyzer after the observation period is set out in 10 N.C.Admin.Code 7B .0346. This regulation instructs the operator to collect the first breath sample when "blow sample" appears on the machine and to collect the second sample when these words reappear, indicating that the machine is ready for a second analysis. The regulation further provides that if the alcohol concentration of these two samples differs by more than .02, a third or subsequent test shall be administered "as soon as feasible" by repeating the enumerated steps.

In this case the record clearly establishes that the chemical analyst followed the required operational procedure when he collected two breath samples from defendant with the Model 2000 Breathalyzer. The affidavit of the chemical analyst indicates that he observed defendant for more than thirty minutes before collecting the first breath sample. The affidavit further shows that the analyst held a valid permit to operate this breathalyzer and that he performed the test "in accordance with the methods approved by the Commission for Health Services as set forth in 10 NCAC 7B .0300." This evidence satisfies the requirements of G.S. 20-139.1 and entitled the test results to be admitted into evidence. State v. Hurley, 28 N.C.App. 478, 221 S.E.2d 743, disc. rev. denied, 289 N.C. 617, 223 S.E.2d 394 (1976). Thus, defendant's argument that the chemical analyst did not follow the proper operational procedures is without merit.

We also find no merit in defendant's argument that the Commission of Health Services failed to set out time requirements between the first and second breath tests as required by G.S. 20-139.1. The operational procedure in 10 N.C.Admin.Code 7B .0346 designates a specific time, which is at the reappearance of the words "blow sample," for the collection of the second breath sample.

Defendant also contends that the trial court erred in finding as an aggravating factor that "defendant's driving was especially reckless because the only evidence in front of the court was the assistant district attorney's recital in open court that the defendant was charged with running a flashing red light on the same citation as the driving while impaired charge." We agree.

There was no evidence presented at the sentencing hearing in the present case which indicated that defendant had been driving recklessly when he was charged with driving while impaired. Although the assistant district attorney stated that defendant had been charged with passing through a red light without stopping, the record shows that there was no evidence before the court to support this assertion. This statement, standing alone, is not evidence that defendant had been driving recklessly. State v. Harris, 65 N.C.App. 816, 310 S.E.2d 120 (1984). Therefore, we hold that the court erred in finding as an aggravating factor that defendant's driving had been especially reckless, and the case is remanded for resentencing.

No error on the motion; remanded for resentencing.

WHICHARD and JOHNSON, JJ., concur.