Chemical Analysis Evidence and Chain of Custody in North Carolina DWI Cases

This was the subject of my Continuing Legal Education Class before the Wake County Academy of Criminal Trial Lawyers on March 9, 2015 in Raleigh.
NCGS 20-139.1
Procedures Governing Chemical Analyses; Admissibility; Evidentiary Provisions; Controlled-drinking Programs.
“The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration.”
This is the language at issue in the case of State v. Narron, 193 N.C. App. 83 (2008), as well as where the terrible jury instruction comes from – an instruction that so obviously makes a presumption about whether a fact has been proven or not (which, as we all know, is the function of the jury and the jury’s alone) that the ultimate result in Narron beggars belief. But despite this language (and the Narron Court’s ultimate decision), Narron is actually good for us. Narron makes clear that evidence of a particular breath or blood result (.08 for example) does not actually create the legal presumption that the jury must find that that piece of evidence has been proven; rather, Narron instructs, it is treated as simply some evidence of the fact – to be treated like any other piece of evidence; it is nothing more than prima facie evidence of the fact that must be proven. (Try explaining that to a jury when they’ve just been told by the judge, whose law they’ve all repeatedly promised to follow, that the results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration!).
Note the horrible “judicial notice” language in this section (and the burden-shifting in (b2)(2)). But what exactly is the judge taking judicial notice of? The preventive maintenance records? What about them? That they are in a green leather-bound book? That they contain lots of pages with writing on them? That they exist? I can understand a judge taking judicial notice of something like the fact that on July 3, 2014 the high was 89 degrees (we’re not going to require Greg Fishel to come in and tell us that), but I just don’t understand what this provision in the statute is telling me (“Your Honor, I ask the Court to take judicial notice of my closet”). And we know that if the legislature wants to turn a piece of evidence into a proven fact before anyone can say otherwise, it’ll do it. See the paragraph above.
I wonder what the penalty is for someone who refuses to draw blood. Reading this statute really makes me question how these things become law.
Admissibility. This is the notice and demand statute that exists for the purpose of curing the confrontation clause problem facing the State when it wants to put something in evidence without producing the witness to testify about it. Specifically, this statute provides the method for the State to introduce the evidence of a person’s alcohol concentration without the necessity of the chemical analyst being present and testifying. In order to do this, the State must notify the Defendant at least 15 business days before the proceeding of its intent to introduce the evidence through a report and must provide a copy of the report to the Defendant. If the Defendant fails to object in writing at least five business days before the proceeding, then the State will be permitted to introduce the report, and the chemical analyst will not be required to appear and testify. If the Defendant objects in time, then the State must bring in the chemical analyst to testify (or try to get the evidence in under the rules of evidence – more on that below). The Defendant’s failure to object is a waiver of his confrontation clause rights. And there may be times that the Defendant wants the evidence to come in – a low alcohol concentration, the lack of impairing substances, for example.
When the Defendant wants the evidence contained in the report to be introduced into evidence, the Defendant is not bound by the rules in this statute. The Defendant can get the report, which fortunately is always an affidavit, into evidence through one of the State’s other witnesses on cross-examination. This is so because the notice and demand statute applies only to the State, and this is so because the State doesn’t have a confrontation clause right. The way to introduce an affidavit into evidence is easy; the foundation is simply that it is an affidavit relating to this case; it is an affidavit of whoever the affiant is; the affidavit is properly notarized or certified.
This section of the statute is titled “Procedure for Establishing Chain of Custody Without Calling Unnecessary Witnesses.” How interesting that the legislature thinks that chain of custody witnesses are unnecessary (I wonder what George Orwell would have to say about this particular piece of newspeak). In order for the State to avoid bringing in all of the chain of custody witnesses, it must comply with the same notice provisions as in (c1) and the defendant fails to object as in (c1).
For some reason, the State feels, and Judges of course accept, that it need only comply with (c1) but not (c3). Invariably, Defendants file their objections, show up in court, and the State has their chemical analyst but not a single chain of custody witness between the policeman who received the evidence from the nurse and the chemical analyst who received the evidence from someone else. The State has a piece of paper identifying who all the “unnecessary” witnesses are; so the State knows who these people are; they all work for the State government in some capacity; yet, upon the Defendant’s timely objection, the State brings into Court only the witness referred to in (c1) but none of the witnesses referred to in (c3). And yet the rules under (c1) are identical to those under (c3). And, invariably, the State gets away with it; the State gets to introduce the evidence without bringing into court their chain of custody witnesses. If the State knows it can get way with ignoring (c3), why does it even bother bringing in the chemical analyst under (c1)? Why doesn’t the State ignore this rule too?
Here’s why: Because the State has done a great job of bamboozling the admittedly willingly-bamboozled judiciary into going along with the “chain-of-custody-goes-to-weight-not-admissibilty” argument. This argument, in the context of 20-139.1(c3) is a total red herring. The statute is unambiguous that the only way in which the State can avoid bringing in the chain of custody witnesses is if it provides the statutory notice and the Defendant fails to object; there is nothing in this statute or anywhere else that provides an exception to the rule. While the argument that chain of custody issues may go to weight rather than admissibility has some basis, when a statute like 20-139.1(c3) exists, there can be no argument over weight versus admissibility unless the Defendant has failed to object. This entire statute is about admissibility; the legislature has spoken as clearly as we could ask it to: chain of custody witness-statements can come in through a piece of paper only if the state has notified the Defendant if its intent to do so and the Defendant has failed to object.
As to the argument of weight versus admissibility, which should arise only in the event that either the State has failed to notify the Defendant or the Defendant has failed to object when the State has notified the Defendant, the bold assertion that issues of chain of custody go to weight rather than admissibility is simply false; it is one of many examples of the State mis-characterizing the law, the Defense bar failing to fight, and judges who know which side their bread is buttered on, going along with the misstatement of the law.
Breaks in the chain of custody go to admissibility; weak links in the chain of custody go to weight. See State v. Pennington, 327 N.C. 89 (1990); State v. Fleming, 350 N.C. 109 (1999); State v. Campbell, 317 N.C. 386 (1984); State v. McDonald, 151 N.C. App. 236 (2002); and, crucially, see the two civil cases: Lombroia v. Peek, 107 N.C. App. 745 (1992), and Columbus County, on behalf of Brooks v. Davis, 163 N.C. App. 64 (2004). The civil cases are especially strong for the criminal defendant to argue because civil defendants are not afforded the same constitutional protections as criminal defendants; in particular, civil litigants do not benefit from criminal defendants’ confrontation clause rights. But remember, do not get lured into this argument if, under 20-139.1(c3), the State has notified you and you have objected. This provision of the statute has replaced the weight versus admissibility argument by plainly and clearly laying out the method for admitting into evidence the chain of custody evidence in a blood or urine test case without the appearance of the chain of custody witnesses.
And, as if we need any further certainty as to the statutory intent of both (c1) and (c3), both of these provisions include the following language: “Upon filing a timely objection, the admissibility (my italics) shall be determined and governed by the appropriate rules of evidence.” So the legislature actually emphasizes the only manner in which chain of custody statements come into evidence in the absence of the actual chain of custody witness by including this additional language – that the rules of evidence will then determine and govern the admissibility of the chain of custody statement. What the statute fails to mention (because it need not since the Constitution overrides everything) is that the evidence will not be admitted if it violates the Defendant’s constitutional rights. And in the case of the State providing notice to the Defendant and the Defendant’s objecting, where admissibility will then be governed by the rules of evidence, if the State is able to find a rule of evidence that would allow the piece of evidence to be introduced, the State must do so without violating the Defendant’s constitutional right to be confronted with and to cross-examine the witness against him. See Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.
20-139.1(e1) and (e2)
This provision of the statute allows the State, in District Court, to introduce the chemical analyst’s affidavit without further authentication and without the testimony of the analyst with respect to the five listed matters. Number 5 is interesting in that it seems to disallow the Court from taking judicial notice of the preventive maintenance records that is discussed above under 20-139.1(b2). Under this provision, the affidavit must contain “the date the most recent preventive maintenance procedures were performed on the breath-testing instrument used, as shown (my italics) on the maintenance records for that instrument.” It sounds like, the State, in this scenario, would need to actually produce the preventive maintenance records, and not be allowed to have the Court take judicial notice of them, as is allowed under 20-139.19(b2), discussed above. And even if the state wins the argument that the Court can take judicial notice of the preventive maintenance records, the affidavit must still contain the date of the most recent preventive maintenance procedures.
The method for admitting this affidavit into evidence (e2) is identical to the methods referred to and discussed above in 20-139.1(c1) and (c3) – notice and demand. What this provision glaringly omits is any reference to a test ticket. If the affidavit doesn’t contain the alcohol concentration (which, for some reason, it rarely if ever does), then, in the absence of any mention of a test ticket or any other piece of paper that might contain the alcohol concentration, the affidavit comes in but the test ticket containing the alcohol concentration does not; only the affidavit comes into evidence. It is well worth noting that the equivalent statute that existed in North Carolina, prior to the changes mandated by Crawford v. Washington, allowed the introduction of the chemical analyst’s affidavit and “attached test ticket” to establish the Defendant’s alcohol concentration. So the argument that the legislature obviously intended for the test ticket to be admissible as well as the affidavit is defeated by the fact that the legislature has previously dealt with this issue in the era prior to Crawford overruling the Ohio v. Roberts, 448 U.S. 56 (1980) hearsay reliability standard, and specifically included the “attached test ticket” language.
Just like sections (c1) and (c3), section (e2) calls for the rules of evidence to govern in the event that the State has provided notice and the Defendant has objected. And, of course, the same confrontation clause analysis applies here as it does under (c1) and (c2).
Note the awful language that “the case shall (my italics) be continued until the analyst can be present.” Is this true even if the file has been marked “last for the State”? Does this provision allow for an indefinite continuance? It seems to – which, of course, raises a speedy trial issue. Interestingly, the case can be dismissed if the analyst “willfully fails to appear after being ordered to appear by the court.” I would have thought the remedy would be suppression of the evidence (and the analyst being held in contempt of court), but apparently, it’s dismissal of the case.
There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor.
NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under the DWI sentencing statute. This innocuous-looking language at the bottom of the list of all the specific grossly aggravating and aggravating factors is in fact a hugely dangerous piece of legislation and horribly unconstitutional.
It is dangerous because it allows the prosecutor to make up aggravating factors and it allows a judge to find made-up aggravating factors. More on this later. Let’s look at some law.
In his concurring opinion in Ring v. Arizona, 536 U.S. 584 (2002), Justice Scalia writes: “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to the imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by a jury beyond a reasonable doubt.” Ring at ____. Throughout Scalia’s opinion in Blakely v. Washington, 542 U.S. 296 (2004), and his concurring opinions in Ring and Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as Justice Ginsburg’s opinion, in which Scalia joined, in Cunningham v. California, 549 U.S. ____ (2007), the Supreme Court unflinchingly, unwaveringly and repeatedly reminds us that there is no difference between an element of a crime and an aggravating factor.
In Blakely, Scalia responds to Justice O’Connor’s dissent thus: “It bears repeating that the issue between us is not whether the Constitution limits States’ authority to reclassify elements as sentencing factors (we all agree it does)…” Blakely at ___. He goes onto speculate about the absurd consequences that would result in allowing elements to be found by a jury and factors to be found by a judge: “The jury need only find whatever facts the legislature chooses to label elements of the crime, and those it labels sentencing factors – no matter how much they increase the punishment – may be found by a judge. This would mean, for example, that a judge could sentence a man for committing a murder even if the jury convicted him of only illegally possessing the firearm used to commit it – or of making an illegal lane-change while fleeing the death scene.” Blakely at ___.
Justice Scalia’s “greater offense” theory is, in essence, that aggravating factors are simply elements of a greater offense. Throughout Blakely, Scalia refers to “facts legally essential” to the punishment: “Every fact which is legally essential to the punishment must be charged in the indictment and proceed to the jury.” Blakely at ___. In other words, facts that are presented to the judge, post-trial, and the finding of which cause an enhancement of the punishment, are not “legally essential to the punishment” for the crime the defendant has just been convicted of, but become “legally essential” facts to the greater offense of the crime that the defendant has not just been convicted of but which the State seeks to punish the defendant for. Blakely prohibits a jury trial for a lesser offense followed by a bench trial for the greater offense: “The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong a mere preliminary to a judicial inquisition into facts of the crime the State actually seeks to punish.” Blakely at ___.
Apprendi and Blakely seem to suggest that in order for the State to punish a defendant for a greater offense, it will have to include the aggravating factors in the indictment and prove them to a jury beyond a reasonable doubt. Cunningham allows for the State to indict the defendant on the lesser offense and punish the defendant for the greater offense so long as the State puts the defendant on notice of its intent to use aggravating factors (or elements of the greater offense) to aggravate the lesser offense. This notice requirement eliminates the need to include the aggravating factors in the indictment and allows for a bifurcated hearing; however, the State must still prove to a jury the aggravating factors beyond a reasonable doubt. So a defendant could plead guilty to the lesser offense that he is charged with in the indictment and require a jury to be empaneled to determine whether the elements of the greater offense he has been given notice of are proven beyond a reasonable doubt.
North Carolina has, for the most part, modified its behavior to comply with the Apprendi/Blakely/Ring/Cunningham rule. Other than in District Court (which I disagree with), the State must put the Defendant on notice of its intent to aggravate a DWI; and the Defendant has the right for a jury to decide whether the aggravating factors (elements of the greater offense, or Mary Jane) are proven beyond a reasonable doubt.
Back to non-statutory aggravating factors. None of the Apprendi cases deals with non-statutory aggravating factors. In each case, the factors are known and described by statute. The issue is: whether, when and how those aggravating factors can be used against a defendant. Non-statutory aggravating factors are unconstitutional because they are non-statutory. Since we know aggravating factors are elements of a greater offense, just as no one can create elements of an offense out of thin air, neither can aggravating factors be created out of nothing. Only the legislature has the authority to create crimes and their elements; only the legislature has the authority to create aggravating factors – they are the same thing. If elements of a crime (whether it be the lesser offense or the greater offense) are unknown and cannot be found in a statute book, how on earth are people to be expected to know what behavior is allowed and what behavior is disallowed. If, suddenly, behavior a person engaged in is considered an element of a crime yet it exists in no statute, how could any of us ever know if we’re gong to be punished for it? That’s worse than ex post facto. Also, a prosecutor coming up with some “factor that aggravates the seriousness of the offense” permits the executive branch of government to invade the function of the legislative branch, and clearly violates the principle of separation of powers.
There is no such thing as a non-statutory aggravating factor. Just as there is no such thing as a non-statutory element of a crime (elements and factors are the same thing). If an element of a crime doesn’t exist in a statute book, it just doesn’t exist; it can’t be just made up – and certainly not by either the lone employee of the State standing at the prosecutor table or the lone employee of the State sitting on the bench. Do not allow a prosecutor to convince a judge to find non-statutory aggravating factors; they simply don’t exist; they are unconstitutional.