§ 20‑139.1. Proceduresgoverning chemical analyses; admissibility; evidentiary provisions; controlled‑drinkingprograms.
(a) Chemical AnalysisAdmissible. In any implied‑consent offense under G.S. 20‑16.2, aperson's alcohol concentration or the presence of any other impairing substancein the person's body as shown by a chemical analysis is admissible in evidence.This section does not limit the introduction of other competent evidence as toa person's alcohol concentration or results of other tests showing the presenceof an impairing substance, including other chemical tests.
(b) Approval of ValidTest Methods; Licensing Chemical Analysts. The results of a chemical analysisshall be deemed sufficient evidence to prove a person's alcohol concentration.A chemical analysis of the breath administered pursuant to the implied‑consentlaw is admissible in any court or administrative hearing or proceeding if itmeets both of the following requirements:
(1) It is performed inaccordance with the rules of the Department of Health and Human Services.
(2) The personperforming the analysis had, at the time of the analysis, a current permitissued by the Department of Health and Human Services authorizing the person toperform a test of the breath using the type of instrument employed.
For purposes of establishingcompliance with subdivision (b)(1) of this section, the court or administrativeagency shall take notice of the rules of the Department of Health and HumanServices. For purposes of establishing compliance with subdivision (b)(2) ofthis section, the court or administrative agency shall take judicial notice ofthe list of permits issued to the person performing the analysis, the type ofinstrument on which the person is authorized to perform tests of the breath,and the date the permit was issued. The Department of Health and Human Servicesmay ascertain the qualifications and competence of individuals to conductparticular chemical analyses and the methods for conducting chemical analyses.The Department may issue permits to conduct chemical analyses to individuals itfinds qualified subject to periodic renewal, termination, and revocation of thepermit in the Department's discretion.
(b1) When Officer MayPerform Chemical Analysis. Any person possessing a current permit authorizingthe person to perform chemical analysis may perform a chemical analysis.
(b2) Breath AnalysisResults Preventive Maintenance. The Department of Health and Human Servicesshall perform preventive maintenance on breath‑testing instruments usedfor chemical analysis. A court or administrative agency shall take judicialnotice of the preventive maintenance records of the Department. Notwithstandingthe provisions of subsection (b), the results of a chemical analysis of aperson's breath performed in accordance with this section are not admissible inevidence if:
(1) The defendantobjects to the introduction into evidence of the results of the chemicalanalysis of the defendant's breath; and
(2) The defendantdemonstrates that, with respect to the instrument used to analyze thedefendant's breath, preventive maintenance procedures required by theregulations of the Department of Health and Human Services had not beenperformed within the time limits prescribed by those regulations.
(b3) Sequential BreathTests Required. The methods governing the administration of chemical analysesof the breath shall require the testing of at least duplicate sequential breathsamples. The results of the chemical analysis of all breath samples are admissibleif the test results from any two consecutively collected breath samples do notdiffer from each other by an alcohol concentration greater than 0.02. Only thelower of the two test results of the consecutively administered tests can beused to prove a particular alcohol concentration. A person's refusal to givethe sequential breath samples necessary to constitute a valid chemical analysisis a refusal under G.S. 20‑16.2(c).
A person's refusal to give thesecond or subsequent breath sample shall make the result of the first breathsample, or the result of the sample providing the lowest alcohol concentrationif more than one breath sample is provided, admissible in any judicial oradministrative hearing for any relevant purpose, including the establishmentthat a person had a particular alcohol concentration for conviction of anoffense involving impaired driving.
(b4) Repealed by SessionLaws 2006‑253, s. 16, effective December 1, 2006, and applicable tooffenses committed on or after that date
(b5) Subsequent TestsAllowed. A person may be requested, pursuant to G.S. 20‑16.2, to submitto a chemical analysis of the person's blood or other bodily fluid or substancein addition to or in lieu of a chemical analysis of the breath, in thediscretion of a law enforcement officer. If a subsequent chemical analysis isrequested pursuant to this subsection, the person shall again be advised of theimplied consent rights in accordance with G.S. 20‑16.2(a). A person'swillful refusal to submit to a chemical analysis of the blood or other bodilyfluid or substance is a willful refusal under G.S. 20‑16.2.
(b6) The Department ofHealth and Human Services shall post on a Web page a list of all persons whohave a permit authorizing them to perform chemical analyses, the types ofanalyses that they can perform, the instruments that each person is authorizedto operate, the effective dates of the permits, and the records of preventivemaintenance. A court or administrative agency shall take judicial notice ofwhether, at the time of the chemical analysis, the chemical analyst possessed apermit authorizing the chemical analyst to perform the chemical analysisadministered and whether preventive maintenance had been performed on thebreath‑testing instrument in accordance with the Department's rules.
(c) Blood and Urine forChemical Analysis. Notwithstanding any other provision of law, when a bloodor urine test is specified as the type of chemical analysis by a lawenforcement officer, a physician, registered nurse, emergency medicaltechnician, or other qualified person shall withdraw the blood sample andobtain the urine sample, and no further authorization or approval is required.If the person withdrawing the blood or collecting the urine requests writtenconfirmation of the law enforcement officer's request for the withdrawal ofblood or collecting the urine, the officer shall furnish it before blood iswithdrawn or urine collected. When blood is withdrawn or urine collectedpursuant to a law enforcement officer's request, neither the person withdrawingthe blood nor any hospital, laboratory, or other institution, person, firm, orcorporation employing that person, or contracting for the service ofwithdrawing blood or collecting urine, may be held criminally or civilly liableby reason of withdrawing the blood or collecting the urine, except that thereis no immunity from liability for negligent acts or omissions. A personrequested to withdraw blood or collect urine pursuant to this subsection mayrefuse to do so only if it reasonably appears that the procedure cannot beperformed without endangering the safety of the person collecting the sample orthe safety of the person from whom the sample is being collected. If theofficer requesting the blood or urine requests a written justification for therefusal, the medical provider who determined the sample could not be collectedsafely shall provide written justification at the time of the refusal.
(c1) Admissibility. Theresults of a chemical analysis of blood or urine reported by the North CarolinaState Bureau of Investigation Laboratory, the Charlotte, North Carolina, PoliceDepartment Laboratory, or any other laboratory approved for chemical analysisby the Department of Health and Human Services, are admissible as evidence inall administrative hearings, and in any court, without further authenticationand without the testimony of the analyst. The results shall be certified by theperson who performed the analysis. The provisions of this subsection may beutilized in any administrative hearing, but can only be utilized in cases triedin the district and superior court divisions, or in an adjudicatory hearing injuvenile court, if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theevidence would be used of its intention to introduce the report into evidenceunder this subsection and provides a copy of the report to the defendant, and
(2) The defendant failsto file a written objection with the court, with a copy to the State, at leastfive business days before the proceeding at which the report would be used thatthe defendant objects to the introduction of the report into evidence.
If the defendant's attorney ofrecord, or the defendant if that person has no attorney, fails to file awritten objection as provided in this subsection, then the report may beadmitted into evidence without the testimony of the analyst. Upon filing atimely objection, the admissibility of the report shall be determined andgoverned by the appropriate rules of evidence.
The report containing theresults of any blood or urine test may be transmitted electronically or viafacsimile. A copy of the affidavit sent electronically or via facsimile shallbe admissible in any court or administrative hearing without furtherauthentication. A copy of the report shall be sent to the charging officer, theclerk of superior court in the county in which the criminal charges arepending, the Division of Motor Vehicles, and the Department of Health and HumanServices.
Nothing in this subsectionprecludes the right of any party to call any witness or to introduce anyevidence supporting or contradicting the evidence contained in the report.
(c2) A chemical analysisof blood or urine, to be admissible under this section, shall be performed inaccordance with rules or procedures adopted by the State Bureau ofInvestigation, or by another laboratory accredited by the American Society ofCrime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) for thesubmission, identification, analysis, and storage of forensic analyses.
(c3) Procedure forEstablishing Chain of Custody Without Calling Unnecessary Witnesses.
(1) For the purpose ofestablishing the chain of physical custody or control of blood or urine testedor analyzed to determine whether it contains alcohol, a controlled substance orits metabolite, or any impairing substance, a statement signed by eachsuccessive person in the chain of custody that the person delivered it to theother person indicated on or about the date stated is prima facie evidence thatthe person had custody and made the delivery as stated, without the necessityof a personal appearance in court by the person signing the statement.
(2) The statement shallcontain a sufficient description of the material or its container so as todistinguish it as the particular item in question and shall state that thematerial was delivered in essentially the same condition as received. Thestatement may be placed on the same document as the report provided for insubsection (c1) of this section.
(3) The provisions ofthis subsection may be utilized in any administrative hearing, but can only beutilized in cases tried in the district and superior court divisions, or in anadjudicatory hearing in juvenile court, if:
a. The State notifiesthe defendant at least 15 business days before the proceeding at which thestatement would be used of its intention to introduce the statement intoevidence under this subsection and provides a copy of the statement to thedefendant, and
b. The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the statement would beused that the defendant objects to the introduction of the statement intoevidence.
If thedefendant's attorney of record, or the defendant if that person has noattorney, fails to file a written objection as provided in this subsection,then the statement may be admitted into evidence without the necessity of apersonal appearance by the person signing the statement. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence.
(4) Nothing in thissubsection precludes the right of any party to call any witness or to introduceany evidence supporting or contradicting the evidence contained in thestatement.
(c4) The results of ablood or urine test are admissible to prove a person's alcohol concentration orthe presence of controlled substances or metabolites or any other impairingsubstance if:
(1) A law enforcementofficer or chemical analyst requested a blood and/or urine sample from theperson charged; and
(2) A chemical analysisof the person's blood was performed by a chemical analyst possessing a permitissued by the Department of Health and Human Services authorizing the chemicalanalyst to analyze blood or urine for alcohol or controlled substances,metabolites of a controlled substance, or any other impairing substance.
For purposes of establishingcompliance with subdivision (2) of this subsection, the court or administrativeagency shall take judicial notice of the list of persons possessing permits,the type of instrument on which each person is authorized to perform tests ofthe blood and/or urine, and the date the permit was issued and the date itexpires.
(d) Right to AdditionalTest. Nothing in this section shall be construed to prohibit a person fromobtaining or attempting to obtain an additional chemical analysis. If the personis not released from custody after the initial appearance, the agency havingcustody of the person shall make reasonable efforts in a timely manner toassist the person in obtaining access to a telephone to arrange for anyadditional test and allow access to the person in accordance with the agreedprocedure in G.S. 20‑38.5. The failure or inability of the person whosubmitted to a chemical analysis to obtain any additional test or to withdrawblood does not preclude the admission of evidence relating to the chemicalanalysis.
(d1) Right to RequireAdditional Tests. If a person refuses to submit to any test or tests pursuantto this section, any law enforcement officer with probable cause may, without acourt order, compel the person to provide blood or urine samples for analysisif the officer reasonably believes that the delay necessary to obtain a courtorder, under the circumstances, would result in the dissipation of thepercentage of alcohol in the person's blood or urine.
(d2) Notwithstanding anyother provision of law, when a blood or urine sample is requested undersubsection (d1) of this section by a law enforcement officer, a physician,registered nurse, emergency medical technician, or other qualified person shallwithdraw the blood and obtain the urine sample, and no further authorization orapproval is required. If the person withdrawing the blood or collecting theurine requests written confirmation of the charging officer's request for thewithdrawal of blood or obtaining urine, the officer shall furnish it beforeblood is withdrawn or urine obtained. A person requested to withdraw blood orcollect urine pursuant to this subsection may refuse to do so only if itreasonably appears that the procedure cannot be performed without endangering thesafety of the person collecting the sample or the safety of the person fromwhom the sample is being collected. If the officer requesting the blood orurine requests a written justification for the refusal, the medical providerwho determined the sample could not be collected safely shall provide writtenjustification at the time of the refusal.
(d3) When blood iswithdrawn or urine collected pursuant to a law enforcement officer's request,neither the person withdrawing the blood nor any hospital, laboratory, or otherinstitution, person, firm, or corporation employing that person, or contractingfor the service of withdrawing blood, may be held criminally or civilly liableby reason of withdrawing that blood, except that there is no immunity from liabilityfor negligent acts or omissions. The results of the analysis of blood or urineunder this subsection shall be admissible if performed by the State Bureau ofInvestigation Laboratory or any other hospital or qualified laboratory.
(e) Recording Results ofChemical Analysis of Breath. A person charged with an implied‑consentoffense who has not received, prior to a trial, a copy of the chemical analysisresults the State intends to offer into evidence may request in writing a copyof the results. The failure to provide a copy prior to any trial shall begrounds for a continuance of the case but shall not be grounds to suppress theresults of the chemical analysis or to dismiss the criminal charges.
(e1) Use of ChemicalAnalyst's Affidavit in District Court. An affidavit by a chemical analystsworn to and properly executed before an official authorized to administeroaths is admissible in evidence without further authentication and without thetestimony of the analyst in any hearing or trial in the District Court Divisionof the General Court of Justice with respect to the following matters:
(1) The alcoholconcentration or concentrations or the presence or absence of an impairingsubstance of a person given a chemical analysis and who is involved in the hearingor trial.
(2) The time of thecollection of the blood, breath, or other bodily fluid or substance sample orsamples for the chemical analysis.
(3) The type of chemicalanalysis administered and the procedures followed.
(4) The type and statusof any permit issued by the Department of Health and Human Services that theanalyst held on the date the analyst performed the chemical analysis inquestion.
(5) If the chemicalanalysis is performed on a breath‑testing instrument for whichregulations adopted pursuant to subsection (b) require preventive maintenance,the date the most recent preventive maintenance procedures were performed onthe breath‑testing instrument used, as shown on the maintenance recordsfor that instrument.
The Department of Health andHuman Services shall develop a form for use by chemical analysts in making thisaffidavit.
(e2) Except as governedby subsection (c1), (c2), or (c3) of this section, the State can only use theprovisions of subsection (e1) of this section if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theaffidavit would be used of its intention to introduce the affidavit intoevidence under this subsection and provides a copy of the affidavit to thedefendant, and
(2) The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the affidavit would beused that the defendant objects to the introduction of the affidavit intoevidence.
The failure to file a timelyobjection as provided in this subsection shall be deemed a waiver of the rightto object to the admissibility of the affidavit. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence. The case shall be continued until theanalyst can be present. The criminal case shall not be dismissed due to thefailure of the analyst to appear, unless the analyst willfully fails to appearafter being ordered to appear by the court. Nothing in subsection (e1) orsubsection (e2) of this section precludes the right of any party to call anywitness or to introduce any evidence supporting or contradicting the evidencecontained in the affidavit.
(f) Evidence ofRefusal Admissible. If any person charged with an implied‑consentoffense refuses to submit to a chemical analysis or to perform field sobrietytests at the request of an officer, evidence of that refusal is admissible inany criminal, civil, or administrative action against the person.
(g) Controlled‑DrinkingPrograms. The Department of Health and Human Services may adopt rulesconcerning the ingestion of controlled amounts of alcohol by individualssubmitting to chemical testing as a part of scientific, experimental,educational, or demonstration programs. These regulations shall prescribeprocedures consistent with controlling federal law governing the acquisition,transportation, possession, storage, administration, and disposition of alcoholintended for use in the programs. Any person in charge of a controlled‑drinkingprogram who acquires alcohol under these regulations must keep recordsaccounting for the disposition of all alcohol acquired, and the records must atall reasonable times be available for inspection upon the request of anyfederal, State, or local law‑enforcement officer with jurisdiction overthe laws relating to control of alcohol. A controlled‑drinking programexclusively using lawfully purchased alcoholic beverages in places in whichthey may be lawfully possessed, however, need not comply with the record‑keepingrequirements of the regulations authorized by this subsection. All actspursuant to the regulations reasonably done in furtherance of bona fideobjectives of a controlled‑drinking program authorized by the regulationsare lawful notwithstanding the provisions of any other general or localstatute, regulation, or ordinance controlling alcohol. (1963, c. 966, s. 2; 1967,c. 123; 1969, c. 1074, s. 2; 1971, c. 619, ss. 12, 13; 1973, c. 476, s. 128; c.1081, s. 2; c. 1331, s. 3; 1975, c. 405; 1979, 2nd Sess., c. 1089; 1981, c.412, s. 4; c. 747, s. 66; 1983, c. 435, s. 26; 1983 (Reg. Sess., 1984), c.1101, s. 20; 1989, c. 727, s. 219(2); 1991, c. 689, s. 233.1(b); 1993, c. 285,s. 7; 1997‑379, ss. 5.3‑5.5; 1997‑443, s. 11A.10; 1997‑443,s. 11A.123; 1997‑456, s. 34(b); 2000‑155, s. 8; 2003‑95, s.1; 2003‑104, s. 2; 2006‑253, s. 16; 2007‑115, ss. 5, 6; 2007‑493,ss. 3, 18, 22, 23; 2009‑473, ss. 3‑6.)
§ 20‑139.1. Proceduresgoverning chemical analyses; admissibility; evidentiary provisions; controlled‑drinkingprograms.
(a) Chemical AnalysisAdmissible. In any implied‑consent offense under G.S. 20‑16.2, aperson's alcohol concentration or the presence of any other impairing substancein the person's body as shown by a chemical analysis is admissible in evidence.This section does not limit the introduction of other competent evidence as toa person's alcohol concentration or results of other tests showing the presenceof an impairing substance, including other chemical tests.
(b) Approval of ValidTest Methods; Licensing Chemical Analysts. The results of a chemical analysisshall be deemed sufficient evidence to prove a person's alcohol concentration.A chemical analysis of the breath administered pursuant to the implied‑consentlaw is admissible in any court or administrative hearing or proceeding if itmeets both of the following requirements:
(1) It is performed inaccordance with the rules of the Department of Health and Human Services.
(2) The personperforming the analysis had, at the time of the analysis, a current permitissued by the Department of Health and Human Services authorizing the person toperform a test of the breath using the type of instrument employed.
For purposes of establishingcompliance with subdivision (b)(1) of this section, the court or administrativeagency shall take notice of the rules of the Department of Health and HumanServices. For purposes of establishing compliance with subdivision (b)(2) ofthis section, the court or administrative agency shall take judicial notice ofthe list of permits issued to the person performing the analysis, the type ofinstrument on which the person is authorized to perform tests of the breath,and the date the permit was issued. The Department of Health and Human Servicesmay ascertain the qualifications and competence of individuals to conductparticular chemical analyses and the methods for conducting chemical analyses.The Department may issue permits to conduct chemical analyses to individuals itfinds qualified subject to periodic renewal, termination, and revocation of thepermit in the Department's discretion.
(b1) When Officer MayPerform Chemical Analysis. Any person possessing a current permit authorizingthe person to perform chemical analysis may perform a chemical analysis.
(b2) Breath AnalysisResults Preventive Maintenance. The Department of Health and Human Servicesshall perform preventive maintenance on breath‑testing instruments usedfor chemical analysis. A court or administrative agency shall take judicialnotice of the preventive maintenance records of the Department. Notwithstandingthe provisions of subsection (b), the results of a chemical analysis of aperson's breath performed in accordance with this section are not admissible inevidence if:
(1) The defendantobjects to the introduction into evidence of the results of the chemicalanalysis of the defendant's breath; and
(2) The defendantdemonstrates that, with respect to the instrument used to analyze thedefendant's breath, preventive maintenance procedures required by theregulations of the Department of Health and Human Services had not beenperformed within the time limits prescribed by those regulations.
(b3) Sequential BreathTests Required. The methods governing the administration of chemical analysesof the breath shall require the testing of at least duplicate sequential breathsamples. The results of the chemical analysis of all breath samples are admissibleif the test results from any two consecutively collected breath samples do notdiffer from each other by an alcohol concentration greater than 0.02. Only thelower of the two test results of the consecutively administered tests can beused to prove a particular alcohol concentration. A person's refusal to givethe sequential breath samples necessary to constitute a valid chemical analysisis a refusal under G.S. 20‑16.2(c).
A person's refusal to give thesecond or subsequent breath sample shall make the result of the first breathsample, or the result of the sample providing the lowest alcohol concentrationif more than one breath sample is provided, admissible in any judicial oradministrative hearing for any relevant purpose, including the establishmentthat a person had a particular alcohol concentration for conviction of anoffense involving impaired driving.
(b4) Repealed by SessionLaws 2006‑253, s. 16, effective December 1, 2006, and applicable tooffenses committed on or after that date
(b5) Subsequent TestsAllowed. A person may be requested, pursuant to G.S. 20‑16.2, to submitto a chemical analysis of the person's blood or other bodily fluid or substancein addition to or in lieu of a chemical analysis of the breath, in thediscretion of a law enforcement officer. If a subsequent chemical analysis isrequested pursuant to this subsection, the person shall again be advised of theimplied consent rights in accordance with G.S. 20‑16.2(a). A person'swillful refusal to submit to a chemical analysis of the blood or other bodilyfluid or substance is a willful refusal under G.S. 20‑16.2.
(b6) The Department ofHealth and Human Services shall post on a Web page a list of all persons whohave a permit authorizing them to perform chemical analyses, the types ofanalyses that they can perform, the instruments that each person is authorizedto operate, the effective dates of the permits, and the records of preventivemaintenance. A court or administrative agency shall take judicial notice ofwhether, at the time of the chemical analysis, the chemical analyst possessed apermit authorizing the chemical analyst to perform the chemical analysisadministered and whether preventive maintenance had been performed on thebreath‑testing instrument in accordance with the Department's rules.
(c) Blood and Urine forChemical Analysis. Notwithstanding any other provision of law, when a bloodor urine test is specified as the type of chemical analysis by a lawenforcement officer, a physician, registered nurse, emergency medicaltechnician, or other qualified person shall withdraw the blood sample andobtain the urine sample, and no further authorization or approval is required.If the person withdrawing the blood or collecting the urine requests writtenconfirmation of the law enforcement officer's request for the withdrawal ofblood or collecting the urine, the officer shall furnish it before blood iswithdrawn or urine collected. When blood is withdrawn or urine collectedpursuant to a law enforcement officer's request, neither the person withdrawingthe blood nor any hospital, laboratory, or other institution, person, firm, orcorporation employing that person, or contracting for the service ofwithdrawing blood or collecting urine, may be held criminally or civilly liableby reason of withdrawing the blood or collecting the urine, except that thereis no immunity from liability for negligent acts or omissions. A personrequested to withdraw blood or collect urine pursuant to this subsection mayrefuse to do so only if it reasonably appears that the procedure cannot beperformed without endangering the safety of the person collecting the sample orthe safety of the person from whom the sample is being collected. If theofficer requesting the blood or urine requests a written justification for therefusal, the medical provider who determined the sample could not be collectedsafely shall provide written justification at the time of the refusal.
(c1) Admissibility. Theresults of a chemical analysis of blood or urine reported by the North CarolinaState Bureau of Investigation Laboratory, the Charlotte, North Carolina, PoliceDepartment Laboratory, or any other laboratory approved for chemical analysisby the Department of Health and Human Services, are admissible as evidence inall administrative hearings, and in any court, without further authenticationand without the testimony of the analyst. The results shall be certified by theperson who performed the analysis. The provisions of this subsection may beutilized in any administrative hearing, but can only be utilized in cases triedin the district and superior court divisions, or in an adjudicatory hearing injuvenile court, if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theevidence would be used of its intention to introduce the report into evidenceunder this subsection and provides a copy of the report to the defendant, and
(2) The defendant failsto file a written objection with the court, with a copy to the State, at leastfive business days before the proceeding at which the report would be used thatthe defendant objects to the introduction of the report into evidence.
If the defendant's attorney ofrecord, or the defendant if that person has no attorney, fails to file awritten objection as provided in this subsection, then the report may beadmitted into evidence without the testimony of the analyst. Upon filing atimely objection, the admissibility of the report shall be determined andgoverned by the appropriate rules of evidence.
The report containing theresults of any blood or urine test may be transmitted electronically or viafacsimile. A copy of the affidavit sent electronically or via facsimile shallbe admissible in any court or administrative hearing without furtherauthentication. A copy of the report shall be sent to the charging officer, theclerk of superior court in the county in which the criminal charges arepending, the Division of Motor Vehicles, and the Department of Health and HumanServices.
Nothing in this subsectionprecludes the right of any party to call any witness or to introduce anyevidence supporting or contradicting the evidence contained in the report.
(c2) A chemical analysisof blood or urine, to be admissible under this section, shall be performed inaccordance with rules or procedures adopted by the State Bureau ofInvestigation, or by another laboratory accredited by the American Society ofCrime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) for thesubmission, identification, analysis, and storage of forensic analyses.
(c3) Procedure forEstablishing Chain of Custody Without Calling Unnecessary Witnesses.
(1) For the purpose ofestablishing the chain of physical custody or control of blood or urine testedor analyzed to determine whether it contains alcohol, a controlled substance orits metabolite, or any impairing substance, a statement signed by eachsuccessive person in the chain of custody that the person delivered it to theother person indicated on or about the date stated is prima facie evidence thatthe person had custody and made the delivery as stated, without the necessityof a personal appearance in court by the person signing the statement.
(2) The statement shallcontain a sufficient description of the material or its container so as todistinguish it as the particular item in question and shall state that thematerial was delivered in essentially the same condition as received. Thestatement may be placed on the same document as the report provided for insubsection (c1) of this section.
(3) The provisions ofthis subsection may be utilized in any administrative hearing, but can only beutilized in cases tried in the district and superior court divisions, or in anadjudicatory hearing in juvenile court, if:
a. The State notifiesthe defendant at least 15 business days before the proceeding at which thestatement would be used of its intention to introduce the statement intoevidence under this subsection and provides a copy of the statement to thedefendant, and
b. The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the statement would beused that the defendant objects to the introduction of the statement intoevidence.
If thedefendant's attorney of record, or the defendant if that person has noattorney, fails to file a written objection as provided in this subsection,then the statement may be admitted into evidence without the necessity of apersonal appearance by the person signing the statement. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence.
(4) Nothing in thissubsection precludes the right of any party to call any witness or to introduceany evidence supporting or contradicting the evidence contained in thestatement.
(c4) The results of ablood or urine test are admissible to prove a person's alcohol concentration orthe presence of controlled substances or metabolites or any other impairingsubstance if:
(1) A law enforcementofficer or chemical analyst requested a blood and/or urine sample from theperson charged; and
(2) A chemical analysisof the person's blood was performed by a chemical analyst possessing a permitissued by the Department of Health and Human Services authorizing the chemicalanalyst to analyze blood or urine for alcohol or controlled substances,metabolites of a controlled substance, or any other impairing substance.
For purposes of establishingcompliance with subdivision (2) of this subsection, the court or administrativeagency shall take judicial notice of the list of persons possessing permits,the type of instrument on which each person is authorized to perform tests ofthe blood and/or urine, and the date the permit was issued and the date itexpires.
(d) Right to AdditionalTest. Nothing in this section shall be construed to prohibit a person fromobtaining or attempting to obtain an additional chemical analysis. If the personis not released from custody after the initial appearance, the agency havingcustody of the person shall make reasonable efforts in a timely manner toassist the person in obtaining access to a telephone to arrange for anyadditional test and allow access to the person in accordance with the agreedprocedure in G.S. 20‑38.5. The failure or inability of the person whosubmitted to a chemical analysis to obtain any additional test or to withdrawblood does not preclude the admission of evidence relating to the chemicalanalysis.
(d1) Right to RequireAdditional Tests. If a person refuses to submit to any test or tests pursuantto this section, any law enforcement officer with probable cause may, without acourt order, compel the person to provide blood or urine samples for analysisif the officer reasonably believes that the delay necessary to obtain a courtorder, under the circumstances, would result in the dissipation of thepercentage of alcohol in the person's blood or urine.
(d2) Notwithstanding anyother provision of law, when a blood or urine sample is requested undersubsection (d1) of this section by a law enforcement officer, a physician,registered nurse, emergency medical technician, or other qualified person shallwithdraw the blood and obtain the urine sample, and no further authorization orapproval is required. If the person withdrawing the blood or collecting theurine requests written confirmation of the charging officer's request for thewithdrawal of blood or obtaining urine, the officer shall furnish it beforeblood is withdrawn or urine obtained. A person requested to withdraw blood orcollect urine pursuant to this subsection may refuse to do so only if itreasonably appears that the procedure cannot be performed without endangering thesafety of the person collecting the sample or the safety of the person fromwhom the sample is being collected. If the officer requesting the blood orurine requests a written justification for the refusal, the medical providerwho determined the sample could not be collected safely shall provide writtenjustification at the time of the refusal.
(d3) When blood iswithdrawn or urine collected pursuant to a law enforcement officer's request,neither the person withdrawing the blood nor any hospital, laboratory, or otherinstitution, person, firm, or corporation employing that person, or contractingfor the service of withdrawing blood, may be held criminally or civilly liableby reason of withdrawing that blood, except that there is no immunity from liabilityfor negligent acts or omissions. The results of the analysis of blood or urineunder this subsection shall be admissible if performed by the State Bureau ofInvestigation Laboratory or any other hospital or qualified laboratory.
(e) Recording Results ofChemical Analysis of Breath. A person charged with an implied‑consentoffense who has not received, prior to a trial, a copy of the chemical analysisresults the State intends to offer into evidence may request in writing a copyof the results. The failure to provide a copy prior to any trial shall begrounds for a continuance of the case but shall not be grounds to suppress theresults of the chemical analysis or to dismiss the criminal charges.
(e1) Use of ChemicalAnalyst's Affidavit in District Court. An affidavit by a chemical analystsworn to and properly executed before an official authorized to administeroaths is admissible in evidence without further authentication and without thetestimony of the analyst in any hearing or trial in the District Court Divisionof the General Court of Justice with respect to the following matters:
(1) The alcoholconcentration or concentrations or the presence or absence of an impairingsubstance of a person given a chemical analysis and who is involved in the hearingor trial.
(2) The time of thecollection of the blood, breath, or other bodily fluid or substance sample orsamples for the chemical analysis.
(3) The type of chemicalanalysis administered and the procedures followed.
(4) The type and statusof any permit issued by the Department of Health and Human Services that theanalyst held on the date the analyst performed the chemical analysis inquestion.
(5) If the chemicalanalysis is performed on a breath‑testing instrument for whichregulations adopted pursuant to subsection (b) require preventive maintenance,the date the most recent preventive maintenance procedures were performed onthe breath‑testing instrument used, as shown on the maintenance recordsfor that instrument.
The Department of Health andHuman Services shall develop a form for use by chemical analysts in making thisaffidavit.
(e2) Except as governedby subsection (c1), (c2), or (c3) of this section, the State can only use theprovisions of subsection (e1) of this section if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theaffidavit would be used of its intention to introduce the affidavit intoevidence under this subsection and provides a copy of the affidavit to thedefendant, and
(2) The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the affidavit would beused that the defendant objects to the introduction of the affidavit intoevidence.
The failure to file a timelyobjection as provided in this subsection shall be deemed a waiver of the rightto object to the admissibility of the affidavit. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence. The case shall be continued until theanalyst can be present. The criminal case shall not be dismissed due to thefailure of the analyst to appear, unless the analyst willfully fails to appearafter being ordered to appear by the court. Nothing in subsection (e1) orsubsection (e2) of this section precludes the right of any party to call anywitness or to introduce any evidence supporting or contradicting the evidencecontained in the affidavit.
(f) Evidence ofRefusal Admissible. If any person charged with an implied‑consentoffense refuses to submit to a chemical analysis or to perform field sobrietytests at the request of an officer, evidence of that refusal is admissible inany criminal, civil, or administrative action against the person.
(g) Controlled‑DrinkingPrograms. The Department of Health and Human Services may adopt rulesconcerning the ingestion of controlled amounts of alcohol by individualssubmitting to chemical testing as a part of scientific, experimental,educational, or demonstration programs. These regulations shall prescribeprocedures consistent with controlling federal law governing the acquisition,transportation, possession, storage, administration, and disposition of alcoholintended for use in the programs. Any person in charge of a controlled‑drinkingprogram who acquires alcohol under these regulations must keep recordsaccounting for the disposition of all alcohol acquired, and the records must atall reasonable times be available for inspection upon the request of anyfederal, State, or local law‑enforcement officer with jurisdiction overthe laws relating to control of alcohol. A controlled‑drinking programexclusively using lawfully purchased alcoholic beverages in places in whichthey may be lawfully possessed, however, need not comply with the record‑keepingrequirements of the regulations authorized by this subsection. All actspursuant to the regulations reasonably done in furtherance of bona fideobjectives of a controlled‑drinking program authorized by the regulationsare lawful notwithstanding the provisions of any other general or localstatute, regulation, or ordinance controlling alcohol. (1963, c. 966, s. 2; 1967,c. 123; 1969, c. 1074, s. 2; 1971, c. 619, ss. 12, 13; 1973, c. 476, s. 128; c.1081, s. 2; c. 1331, s. 3; 1975, c. 405; 1979, 2nd Sess., c. 1089; 1981, c.412, s. 4; c. 747, s. 66; 1983, c. 435, s. 26; 1983 (Reg. Sess., 1984), c.1101, s. 20; 1989, c. 727, s. 219(2); 1991, c. 689, s. 233.1(b); 1993, c. 285,s. 7; 1997‑379, ss. 5.3‑5.5; 1997‑443, s. 11A.10; 1997‑443,s. 11A.123; 1997‑456, s. 34(b); 2000‑155, s. 8; 2003‑95, s.1; 2003‑104, s. 2; 2006‑253, s. 16; 2007‑115, ss. 5, 6; 2007‑493,ss. 3, 18, 22, 23; 2009‑473, ss. 3‑6.)
§ 20‑139.1. Proceduresgoverning chemical analyses; admissibility; evidentiary provisions; controlled‑drinkingprograms.
(a) Chemical AnalysisAdmissible. In any implied‑consent offense under G.S. 20‑16.2, aperson's alcohol concentration or the presence of any other impairing substancein the person's body as shown by a chemical analysis is admissible in evidence.This section does not limit the introduction of other competent evidence as toa person's alcohol concentration or results of other tests showing the presenceof an impairing substance, including other chemical tests.
(b) Approval of ValidTest Methods; Licensing Chemical Analysts. The results of a chemical analysisshall be deemed sufficient evidence to prove a person's alcohol concentration.A chemical analysis of the breath administered pursuant to the implied‑consentlaw is admissible in any court or administrative hearing or proceeding if itmeets both of the following requirements:
(1) It is performed inaccordance with the rules of the Department of Health and Human Services.
(2) The personperforming the analysis had, at the time of the analysis, a current permitissued by the Department of Health and Human Services authorizing the person toperform a test of the breath using the type of instrument employed.
For purposes of establishingcompliance with subdivision (b)(1) of this section, the court or administrativeagency shall take notice of the rules of the Department of Health and HumanServices. For purposes of establishing compliance with subdivision (b)(2) ofthis section, the court or administrative agency shall take judicial notice ofthe list of permits issued to the person performing the analysis, the type ofinstrument on which the person is authorized to perform tests of the breath,and the date the permit was issued. The Department of Health and Human Servicesmay ascertain the qualifications and competence of individuals to conductparticular chemical analyses and the methods for conducting chemical analyses.The Department may issue permits to conduct chemical analyses to individuals itfinds qualified subject to periodic renewal, termination, and revocation of thepermit in the Department's discretion.
(b1) When Officer MayPerform Chemical Analysis. Any person possessing a current permit authorizingthe person to perform chemical analysis may perform a chemical analysis.
(b2) Breath AnalysisResults Preventive Maintenance. The Department of Health and Human Servicesshall perform preventive maintenance on breath‑testing instruments usedfor chemical analysis. A court or administrative agency shall take judicialnotice of the preventive maintenance records of the Department. Notwithstandingthe provisions of subsection (b), the results of a chemical analysis of aperson's breath performed in accordance with this section are not admissible inevidence if:
(1) The defendantobjects to the introduction into evidence of the results of the chemicalanalysis of the defendant's breath; and
(2) The defendantdemonstrates that, with respect to the instrument used to analyze thedefendant's breath, preventive maintenance procedures required by theregulations of the Department of Health and Human Services had not beenperformed within the time limits prescribed by those regulations.
(b3) Sequential BreathTests Required. The methods governing the administration of chemical analysesof the breath shall require the testing of at least duplicate sequential breathsamples. The results of the chemical analysis of all breath samples are admissibleif the test results from any two consecutively collected breath samples do notdiffer from each other by an alcohol concentration greater than 0.02. Only thelower of the two test results of the consecutively administered tests can beused to prove a particular alcohol concentration. A person's refusal to givethe sequential breath samples necessary to constitute a valid chemical analysisis a refusal under G.S. 20‑16.2(c).
A person's refusal to give thesecond or subsequent breath sample shall make the result of the first breathsample, or the result of the sample providing the lowest alcohol concentrationif more than one breath sample is provided, admissible in any judicial oradministrative hearing for any relevant purpose, including the establishmentthat a person had a particular alcohol concentration for conviction of anoffense involving impaired driving.
(b4) Repealed by SessionLaws 2006‑253, s. 16, effective December 1, 2006, and applicable tooffenses committed on or after that date
(b5) Subsequent TestsAllowed. A person may be requested, pursuant to G.S. 20‑16.2, to submitto a chemical analysis of the person's blood or other bodily fluid or substancein addition to or in lieu of a chemical analysis of the breath, in thediscretion of a law enforcement officer. If a subsequent chemical analysis isrequested pursuant to this subsection, the person shall again be advised of theimplied consent rights in accordance with G.S. 20‑16.2(a). A person'swillful refusal to submit to a chemical analysis of the blood or other bodilyfluid or substance is a willful refusal under G.S. 20‑16.2.
(b6) The Department ofHealth and Human Services shall post on a Web page a list of all persons whohave a permit authorizing them to perform chemical analyses, the types ofanalyses that they can perform, the instruments that each person is authorizedto operate, the effective dates of the permits, and the records of preventivemaintenance. A court or administrative agency shall take judicial notice ofwhether, at the time of the chemical analysis, the chemical analyst possessed apermit authorizing the chemical analyst to perform the chemical analysisadministered and whether preventive maintenance had been performed on thebreath‑testing instrument in accordance with the Department's rules.
(c) Blood and Urine forChemical Analysis. Notwithstanding any other provision of law, when a bloodor urine test is specified as the type of chemical analysis by a lawenforcement officer, a physician, registered nurse, emergency medicaltechnician, or other qualified person shall withdraw the blood sample andobtain the urine sample, and no further authorization or approval is required.If the person withdrawing the blood or collecting the urine requests writtenconfirmation of the law enforcement officer's request for the withdrawal ofblood or collecting the urine, the officer shall furnish it before blood iswithdrawn or urine collected. When blood is withdrawn or urine collectedpursuant to a law enforcement officer's request, neither the person withdrawingthe blood nor any hospital, laboratory, or other institution, person, firm, orcorporation employing that person, or contracting for the service ofwithdrawing blood or collecting urine, may be held criminally or civilly liableby reason of withdrawing the blood or collecting the urine, except that thereis no immunity from liability for negligent acts or omissions. A personrequested to withdraw blood or collect urine pursuant to this subsection mayrefuse to do so only if it reasonably appears that the procedure cannot beperformed without endangering the safety of the person collecting the sample orthe safety of the person from whom the sample is being collected. If theofficer requesting the blood or urine requests a written justification for therefusal, the medical provider who determined the sample could not be collectedsafely shall provide written justification at the time of the refusal.
(c1) Admissibility. Theresults of a chemical analysis of blood or urine reported by the North CarolinaState Bureau of Investigation Laboratory, the Charlotte, North Carolina, PoliceDepartment Laboratory, or any other laboratory approved for chemical analysisby the Department of Health and Human Services, are admissible as evidence inall administrative hearings, and in any court, without further authenticationand without the testimony of the analyst. The results shall be certified by theperson who performed the analysis. The provisions of this subsection may beutilized in any administrative hearing, but can only be utilized in cases triedin the district and superior court divisions, or in an adjudicatory hearing injuvenile court, if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theevidence would be used of its intention to introduce the report into evidenceunder this subsection and provides a copy of the report to the defendant, and
(2) The defendant failsto file a written objection with the court, with a copy to the State, at leastfive business days before the proceeding at which the report would be used thatthe defendant objects to the introduction of the report into evidence.
If the defendant's attorney ofrecord, or the defendant if that person has no attorney, fails to file awritten objection as provided in this subsection, then the report may beadmitted into evidence without the testimony of the analyst. Upon filing atimely objection, the admissibility of the report shall be determined andgoverned by the appropriate rules of evidence.
The report containing theresults of any blood or urine test may be transmitted electronically or viafacsimile. A copy of the affidavit sent electronically or via facsimile shallbe admissible in any court or administrative hearing without furtherauthentication. A copy of the report shall be sent to the charging officer, theclerk of superior court in the county in which the criminal charges arepending, the Division of Motor Vehicles, and the Department of Health and HumanServices.
Nothing in this subsectionprecludes the right of any party to call any witness or to introduce anyevidence supporting or contradicting the evidence contained in the report.
(c2) A chemical analysisof blood or urine, to be admissible under this section, shall be performed inaccordance with rules or procedures adopted by the State Bureau ofInvestigation, or by another laboratory accredited by the American Society ofCrime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) for thesubmission, identification, analysis, and storage of forensic analyses.
(c3) Procedure forEstablishing Chain of Custody Without Calling Unnecessary Witnesses.
(1) For the purpose ofestablishing the chain of physical custody or control of blood or urine testedor analyzed to determine whether it contains alcohol, a controlled substance orits metabolite, or any impairing substance, a statement signed by eachsuccessive person in the chain of custody that the person delivered it to theother person indicated on or about the date stated is prima facie evidence thatthe person had custody and made the delivery as stated, without the necessityof a personal appearance in court by the person signing the statement.
(2) The statement shallcontain a sufficient description of the material or its container so as todistinguish it as the particular item in question and shall state that thematerial was delivered in essentially the same condition as received. Thestatement may be placed on the same document as the report provided for insubsection (c1) of this section.
(3) The provisions ofthis subsection may be utilized in any administrative hearing, but can only beutilized in cases tried in the district and superior court divisions, or in anadjudicatory hearing in juvenile court, if:
a. The State notifiesthe defendant at least 15 business days before the proceeding at which thestatement would be used of its intention to introduce the statement intoevidence under this subsection and provides a copy of the statement to thedefendant, and
b. The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the statement would beused that the defendant objects to the introduction of the statement intoevidence.
If thedefendant's attorney of record, or the defendant if that person has noattorney, fails to file a written objection as provided in this subsection,then the statement may be admitted into evidence without the necessity of apersonal appearance by the person signing the statement. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence.
(4) Nothing in thissubsection precludes the right of any party to call any witness or to introduceany evidence supporting or contradicting the evidence contained in thestatement.
(c4) The results of ablood or urine test are admissible to prove a person's alcohol concentration orthe presence of controlled substances or metabolites or any other impairingsubstance if:
(1) A law enforcementofficer or chemical analyst requested a blood and/or urine sample from theperson charged; and
(2) A chemical analysisof the person's blood was performed by a chemical analyst possessing a permitissued by the Department of Health and Human Services authorizing the chemicalanalyst to analyze blood or urine for alcohol or controlled substances,metabolites of a controlled substance, or any other impairing substance.
For purposes of establishingcompliance with subdivision (2) of this subsection, the court or administrativeagency shall take judicial notice of the list of persons possessing permits,the type of instrument on which each person is authorized to perform tests ofthe blood and/or urine, and the date the permit was issued and the date itexpires.
(d) Right to AdditionalTest. Nothing in this section shall be construed to prohibit a person fromobtaining or attempting to obtain an additional chemical analysis. If the personis not released from custody after the initial appearance, the agency havingcustody of the person shall make reasonable efforts in a timely manner toassist the person in obtaining access to a telephone to arrange for anyadditional test and allow access to the person in accordance with the agreedprocedure in G.S. 20‑38.5. The failure or inability of the person whosubmitted to a chemical analysis to obtain any additional test or to withdrawblood does not preclude the admission of evidence relating to the chemicalanalysis.
(d1) Right to RequireAdditional Tests. If a person refuses to submit to any test or tests pursuantto this section, any law enforcement officer with probable cause may, without acourt order, compel the person to provide blood or urine samples for analysisif the officer reasonably believes that the delay necessary to obtain a courtorder, under the circumstances, would result in the dissipation of thepercentage of alcohol in the person's blood or urine.
(d2) Notwithstanding anyother provision of law, when a blood or urine sample is requested undersubsection (d1) of this section by a law enforcement officer, a physician,registered nurse, emergency medical technician, or other qualified person shallwithdraw the blood and obtain the urine sample, and no further authorization orapproval is required. If the person withdrawing the blood or collecting theurine requests written confirmation of the charging officer's request for thewithdrawal of blood or obtaining urine, the officer shall furnish it beforeblood is withdrawn or urine obtained. A person requested to withdraw blood orcollect urine pursuant to this subsection may refuse to do so only if itreasonably appears that the procedure cannot be performed without endangering thesafety of the person collecting the sample or the safety of the person fromwhom the sample is being collected. If the officer requesting the blood orurine requests a written justification for the refusal, the medical providerwho determined the sample could not be collected safely shall provide writtenjustification at the time of the refusal.
(d3) When blood iswithdrawn or urine collected pursuant to a law enforcement officer's request,neither the person withdrawing the blood nor any hospital, laboratory, or otherinstitution, person, firm, or corporation employing that person, or contractingfor the service of withdrawing blood, may be held criminally or civilly liableby reason of withdrawing that blood, except that there is no immunity from liabilityfor negligent acts or omissions. The results of the analysis of blood or urineunder this subsection shall be admissible if performed by the State Bureau ofInvestigation Laboratory or any other hospital or qualified laboratory.
(e) Recording Results ofChemical Analysis of Breath. A person charged with an implied‑consentoffense who has not received, prior to a trial, a copy of the chemical analysisresults the State intends to offer into evidence may request in writing a copyof the results. The failure to provide a copy prior to any trial shall begrounds for a continuance of the case but shall not be grounds to suppress theresults of the chemical analysis or to dismiss the criminal charges.
(e1) Use of ChemicalAnalyst's Affidavit in District Court. An affidavit by a chemical analystsworn to and properly executed before an official authorized to administeroaths is admissible in evidence without further authentication and without thetestimony of the analyst in any hearing or trial in the District Court Divisionof the General Court of Justice with respect to the following matters:
(1) The alcoholconcentration or concentrations or the presence or absence of an impairingsubstance of a person given a chemical analysis and who is involved in the hearingor trial.
(2) The time of thecollection of the blood, breath, or other bodily fluid or substance sample orsamples for the chemical analysis.
(3) The type of chemicalanalysis administered and the procedures followed.
(4) The type and statusof any permit issued by the Department of Health and Human Services that theanalyst held on the date the analyst performed the chemical analysis inquestion.
(5) If the chemicalanalysis is performed on a breath‑testing instrument for whichregulations adopted pursuant to subsection (b) require preventive maintenance,the date the most recent preventive maintenance procedures were performed onthe breath‑testing instrument used, as shown on the maintenance recordsfor that instrument.
The Department of Health andHuman Services shall develop a form for use by chemical analysts in making thisaffidavit.
(e2) Except as governedby subsection (c1), (c2), or (c3) of this section, the State can only use theprovisions of subsection (e1) of this section if:
(1) The State notifiesthe defendant at least 15 business days before the proceeding at which theaffidavit would be used of its intention to introduce the affidavit intoevidence under this subsection and provides a copy of the affidavit to thedefendant, and
(2) The defendant failsto file a written notification with the court, with a copy to the State, atleast five business days before the proceeding at which the affidavit would beused that the defendant objects to the introduction of the affidavit intoevidence.
The failure to file a timelyobjection as provided in this subsection shall be deemed a waiver of the rightto object to the admissibility of the affidavit. Upon filing a timelyobjection, the admissibility of the report shall be determined and governed bythe appropriate rules of evidence. The case shall be continued until theanalyst can be present. The criminal case shall not be dismissed due to thefailure of the analyst to appear, unless the analyst willfully fails to appearafter being ordered to appear by the court. Nothing in subsection (e1) orsubsection (e2) of this section precludes the right of any party to call anywitness or to introduce any evidence supporting or contradicting the evidencecontained in the affidavit.
(f) Evidence ofRefusal Admissible. If any person charged with an implied‑consentoffense refuses to submit to a chemical analysis or to perform field sobrietytests at the request of an officer, evidence of that refusal is admissible inany criminal, civil, or administrative action against the person.
(g) Controlled‑DrinkingPrograms. The Department of Health and Human Services may adopt rulesconcerning the ingestion of controlled amounts of alcohol by individualssubmitting to chemical testing as a part of scientific, experimental,educational, or demonstration programs. These regulations shall prescribeprocedures consistent with controlling federal law governing the acquisition,transportation, possession, storage, administration, and disposition of alcoholintended for use in the programs. Any person in charge of a controlled‑drinkingprogram who acquires alcohol under these regulations must keep recordsaccounting for the disposition of all alcohol acquired, and the records must atall reasonable times be available for inspection upon the request of anyfederal, State, or local law‑enforcement officer with jurisdiction overthe laws relating to control of alcohol. A controlled‑drinking programexclusively using lawfully purchased alcoholic beverages in places in whichthey may be lawfully possessed, however, need not comply with the record‑keepingrequirements of the regulations authorized by this subsection. All actspursuant to the regulations reasonably done in furtherance of bona fideobjectives of a controlled‑drinking program authorized by the regulationsare lawful notwithstanding the provisions of any other general or localstatute, regulation, or ordinance controlling alcohol. (1963, c. 966, s. 2; 1967,c. 123; 1969, c. 1074, s. 2; 1971, c. 619, ss. 12, 13; 1973, c. 476, s. 128; c.1081, s. 2; c. 1331, s. 3; 1975, c. 405; 1979, 2nd Sess., c. 1089; 1981, c.412, s. 4; c. 747, s. 66; 1983, c. 435, s. 26; 1983 (Reg. Sess., 1984), c.1101, s. 20; 1989, c. 727, s. 219(2); 1991, c. 689, s. 233.1(b); 1993, c. 285,s. 7; 1997‑379, ss. 5.3‑5.5; 1997‑443, s. 11A.10; 1997‑443,s. 11A.123; 1997‑456, s. 34(b); 2000‑155, s. 8; 2003‑95, s.1; 2003‑104, s. 2; 2006‑253, s. 16; 2007‑115, ss. 5, 6; 2007‑493,ss. 3, 18, 22, 23; 2009‑473, ss. 3‑6.)
