Recently, trial courts are managing the flow of litigation by utilizing G.S. 20-139.1(e)(2). This statute requires that implied consent cases be continued until the chemical analyst, who analyzed the defendant’s blood, breath, or urine, can be present.  This is, of course, unless the defendant waives his rights to such an analysis.

This is very important in an impaired driving case, where now, courts must consider G.S. 20-139.1(e)(2).  This statute states that “the case shall be continued until the analyst can be present,” and that “the criminal case shall not be dismissed due to the failure of the analyst to appear, unless the analyst willfully fails to appear after being ordered to appear by the court.”

In State v. Joe, 723 S.E.2d 339 (2012), the court determined that the trial court may grant a defendant’s motion to dismiss under G.S. 15A-954, or the State may dismiss pursuant to G.S. 15A-931.  Thus, the legislature has instructed courts to continue certain implied consent cases so that a chemical analyst may appear.  However, if an analyst willfully does not appear after having been summoned by the court, the court may grant an exception to this rule.

The overall question we are confronted with here is whether it is unconstitutional for a legislature to be involved so directly with trial court matters?

Article IV, Section 13(2) of the NC Constitution allows the General Assembly to “make rules of procedure and practice for the Superior Court and District Court Divisions,” and further provides that “no rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.” So, the General Statute is likely constitutional in that the legislature is in a proper area to make determinations.

If you or someone close to you has been charged with a DUI, or alcohol related crime in North Carolina, make sure that you are covering every possible base.  G.S. 20-139.1(e)(2) can be a protection measure for many people; it ensures that the scientific tests, which is the most reliable evidence in a DUI case, must be presented through a chemical analyst.  At Reeves, Aiken & Hightower, LLP., we stay up to date on the most recent North Carolina decisions so that we can represent our clients in the most efficient way possible.  If you have been charged with driving under the influence, call our Charlotte, North Carolina office at 704-499-9000 for a consultation.