State v. Stauffer

145 S.E.2d 917 (1966)

266 N.C. 358

STATE v. John Jacob STAUFFER.

No. 340.

Supreme Court of North Carolina.

January 14, 1966.

*918 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell, for the State.

Turner & Harrison, Kinston, for defendant appellant.

PER CURIAM.

G.S. § 20-139.1(a) provides that in any criminal action arising out of acts alleged to have been committed by any person while driving a vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time alleged, as shown by chemical analysis of the person's breath, shall be admissible in evidence. However, paragraph (b) of this section states expressly, "[I]n no case shall the arresting officer or officers administer said test."

The purpose of this limitation in the statute is to assure that the test will be fairly and impartially made. An officer, who is present at the scene of the arrest for the purpose of assisting in it, if necessary, is an "arresting officer" within the meaning of this statute even though a different officer actually places his hand upon the defendant and informs him that he is under arrest.

Officer McIntosh was, therefore, forbidden by the statute to make the breatholyzer test of the defendant and it was error to permit him to testify as to the result of the test and as to his opinion based thereon. This was prejudicial to the defendant notwithstanding the presence in the record of other evidence which, considered alone, would have been sufficient to support the verdict.

New trial.