IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-338
Filed 16 January 2024
Buncombe County, Nos. 21-CRS-82197-99
STATE OF NORTH CAROLINA
v.
CORY MICAH FORNEY
Appeal by defendant from judgments entered 8 July 2022 by Judge R. Gregory
Horne in Buncombe County Superior Court. Heard in the Court of Appeals 14
November 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General J.D. Prather, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
THOMPSON, Judge.
In this appeal from defendant’s conviction on a charge of impaired driving,
among other offenses, he argues that the trial court erred in admitting the results of
a chemical analysis of defendant’s breath. While we agree that the evidence in
question should not have been admitted at trial, we conclude that the error was not
prejudicial to defendant. Accordingly, defendant’s conviction on a charge of impaired
driving must be upheld.
I. Factual Background and Procedural History STATE V. FORNEY
Opinion of the Court
The evidence introduced at defendant’s trial tended to show the following: On
9 March 2021, Officer Samuel DeGrave, of the Asheville Police Department, was on
traffic enforcement duty observing a stop sign located in East Asheville. Just after
10:00 p.m., a red Dodge minivan being operated by defendant1 failed to stop at the
stop sign, and DeGrave initiated a traffic stop. At the beginning of their interaction,
DeGrave explained the reason for the traffic stop and defendant informed DeGrave
that defendant had no driver’s license. DeGrave detected an odor of alcohol
emanating from the vehicle and noticed that the odor was stronger when defendant
spoke. DeGrave further observed that defendant’s speech was slow and slurred and
his eyes were red and glassy; DeGrave’s suspicion that defendant had consumed
alcohol was also raised when he saw defendant put a piece of mint gum into his mouth
while DeGrave was verifying defendant’s identity and that of the female passenger
in the vehicle.
After completing that process, DeGrave returned to the minivan and informed
defendant that DeGrave was going to conduct three standardized field sobriety tests,
which the officer was certified to perform. He thereafter performed three such tests
on defendant. On the horizontal gaze nystagmus (HGN) test—about which DeGrave
was allowed to testify as an expert—DeGrave noted six of six possible indications of
impairment. DeGrave noted two of eight possible indications of impairment on the
1 The vehicle’s occupants also included a female passenger in the passenger seat and a child
in the back seat.
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walk-and-turn test and three of four indications of impairment on the one-leg-stand
test. DeGrave testified that a research study of these results created a 91% likelihood
that defendant was appreciably impaired. Based upon his observations and the test
results, DeGrave formed the opinion that defendant had consumed a sufficient
quantity of alcohol to appreciably impair his faculties and arrested him.
At the Buncombe County Jail, Officer Kenneth Merritt of the Biltmore Forest
Police Department, a certified chemical analyst, was called in to perform a breath
analysis of defendant using an “EC/IR II Intoximeter.” After advising defendant of
his implied consent rights, Merritt began a fifteen-minute “observation period”
designed to ensure that the individual does not eat food, consume alcohol, regurgitate,
or smoke prior to testing, primarily to ensure the presence of no “mouth alcohol” that
might affect the accuracy of the blood alcohol reading. Merritt administered a breath
test at 12:05 a.m. which resulted in a 0.11 blood alcohol concentration (BAC) reading.
When Merritt then noticed that defendant had chewing gum in his mouth, he had
defendant spit out the gum and then administered a second breath test at 12:07 a.m.,
which again resulted in a 0.11 BAC reading.
Defendant was later charged with driving while impaired, driving while
impaired with three prior convictions of driving while impaired within 10 years of the
date of the offense, driving while license revoked, and failure to stop for a stop sign.
The case came on for hearing before Judge Gregory Horne at the 5 July 2022 session
of Superior Court, Buncombe County. Defendant filed several pretrial motions,
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including a motion in limine which sought to exclude the results of the EC/IR II
breath testing on the basis that Merritt failed to follow the required observation
protocol before administering the second breath test. That motion was denied
following an evidentiary hearing. Defendant then pled guilty to the offenses of driving
while impaired with three prior convictions of driving while impaired within 10 years
of the date of the offense and driving while license revoked, not guilty to driving while
impaired, and not responsible for the stop sign violation.
The other matters proceeded to trial before a jury, and when Merritt was asked
to describe the step of the Intoximeter procedure known as the “observation period,”
he testified that “the observation period is a 15-minute period that I’m looking for
regurgitation, or as bad as it sounds, throw up, eating food, consuming alcohol, or
smoking cigarettes. It is mainly to detect for mouth alcohol.” (Emphasis added.)
Merritt also stated that he did not see defendant “put anything in his mouth or . . .
see any signs of him regurgitating or drinking or anything like that.” Nevertheless,
Merritt testified that after he then collected a first breath sample from defendant,
Merritt “was notified that [defendant] had gum in his mouth.” Merritt had defendant
spit out the gum and collected the second breath sample required under the pertinent
procedures two minutes later. Defendant renewed his objection to the admission of
the Intoximeter results, and the trial court overruled those objections and allowed
the results to be published to the jury.
-4- STATE V. FORNEY
On cross examination, defendant’s trial counsel discussed the waiting period
with Merritt:
Q. And the reason that we need an observation period is to make sure that there’s nothing going on internally for the subject of the test that could skew the results of the test, correct?
A. For the most part, yes, sir. My understanding is to allow for deterioration of mouth alcohol.
Merritt acknowledged that “the reason for the rules and regulations, again, is to
assure us of the accuracy and reliability of the results that the [Intoximeter] provides”
and also agreed that “for best practices” he should have restarted the observation
period after having defendant spit out the gum. However, Merritt repeatedly stated
that he did not believe the rules had been violated because they only explicitly ask
the analyst “to look for consuming alcohol, smoking, eating, and regurgitating” and
do not address chewing gum.
The State then called Daniel Cutler, an employee of the North Carolina
Forensic Tests for Alcohol Branch of the Division of Public Health within DHHS, who
was then acting as a Drug and Alcohol Impaired Driving Regional Coordinator
supervising the affairs of the Forensic Tests for Alcohol Branch within the western
18 counties of the State, and Cutler was admitted as an expert in the EC/IR II breath
testing instrument and its procedures without objection. Cutler testified that “[g]um
in the mouth will not, and by all indications, looking at the test record, did not affect
the results of the breath sample,” citing two published studies. Cutler explained that
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one of those studies indicated that chewing “sugar-free gum, which is a salivary flow
promoter” for five minutes led to lower BAC results as compared to the control
situation in which no gum was chewed. The first study was conducted using “an
Intoxilyzer 5000C,” the testing instrument used in North Carolina prior to our State’s
adoption of the Intoximeter Model EC/IR II. The second study cited involved testing
with “75 different brands of chewing gum” and indicated that one brand of gum,
“Trident Splash Strawberry with Kiwi” caused elevated BAC results, but the
remaining varieties of gum did not. The testing instruments used in that study were
“the Alco-Sensor IV DWF, and Alcotest 7410 GLC.”
Dr. Andy Ewans, a forensic toxicologist, testified for the defense as an expert
in toxicology and agreed that “in general” gum in a test subject’s mouth would not
affect chemical analysis results. He further noted, however, Cutler’s own reference to
a study indicating an impact on BAC results from at least some types of gum and also
emphasized that regardless, “the protocol established by statute was not followed by
Sergeant Merritt
On 8 July 2022, the jury found defendant guilty of the impaired driving charge
and responsible for the stop sign violation. Defendant gave notice of appeal in open
court.
II. Analysis
Defendant’s sole contention on appeal is that the trial court committed error
in denying his motion to exclude the results of the Intoximeter’s chemical analysis
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and in overruling defendant’s objections to the admission of that evidence when it
was introduced at trial. Specifically, defendant argues that after having defendant
remove the gum from his mouth, Merritt’s failure to conduct a new observation period
rendered the Intoximeter results inadmissible under the relevant provision of the
North Carolina General Statutes and related Department of Health and Human
Services rules. We agree. However, because defendant has failed to show “a
reasonable possibility that, had the error in question not been committed, a different
result would have been reached at the trial,” N.C. Gen. Stat. §15A-1443(a) (2021), we
hold that he has not demonstrated prejudice.
A. Error in admission of chemical analysis results
The primary issue before us in this appeal, which appears to be a matter of
first impression, is one of statutory and regulatory interpretation. Such questions are
reviewed de novo. Sound Rivers Inc. v. N.C. Dep’t of Envtl. Quality, 271 N.C. App.
674, 727, 845 S.E.2d 802, 834 (2020), affirmed in part and disc. review allowed in
part, ___ N.C. ___, 891 S.E.2d 83 (2023).
An appeal de novo is one in which the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the trial court.
In re K.S., 380 N.C. 60, 64, 868 S.E.2d 1, 4 (2022) (citations, quotation marks, and
brackets omitted).
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The provisions at the heart of this appeal concern the admissibility of breath
test results obtained by means of chemical analysis. “A chemical analysis of the
breath . . . is admissible in any court . . . if it . . . is performed in accordance with the
rules of the Department of Health and Human Services.” N.C. Gen. Stat. §20-
139.1(b)(1) (2021).2 See also State v. Davis, 208 N.C. App. 26, 34, 702 S.E.2d 507, 513
(2010). The pertinent Department of Health and Human Services (DHHS) rules are
found in Chapter 10A, Subchapter 41B of the North Carolina Administrative Code,
titled “Injury Control.” The testing procedure for the type of Intoximeter employed
for the chemical analysis of defendant’s breath—the EC/IR II—is found in 10A NCAC
41B.0322 and provides that “when administering a test using the Intoximeters,” a
chemical analyst must, inter alia, “[e]nsure [that] observation period requirements
have been met” before collecting two breath samples for analysis. 10A NCAC
41B.0322(2), (6), (7); see also N.C. Gen. Stat. § 20-139.1(b)(1), (b3). The “observation
period,” in turn, is defined as
a period during which a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen. The chemical analyst may observe while conducting the operational procedures in using a breath testing instrument. Dental devices or oral jewelry need not be
2 This statute also requires that “[t]he person performing the analysis ha[ve] . . . a current permit . . . to perform a test of the breath using the type of instrument employed.” N.C. Gen. Stat. § 20-139.1(b)(1). Merritt’s certification to perform the chemical analysis here is not disputed.
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removed.
10A NCAC 41B.0101(6) (emphases added). As the proponent of breath test evidence
in an impaired driving case, “the State bears the burden of proving compliance with
the ‘observation period’ requirement set out in N.C. Gen. Stat. § 20-139.1.” State v.
Roberts, 237 N.C. App. 551, 560, 767 S.E.2d 543, 550 (2014), disc. review denied, 368
N.C. 258, 771 S.E.2d 324 (2015).
The basis of defendant’s motion in limine to exclude the chemical analysis
results was that, while Merritt conducted an observation period before obtaining the
first breath sample from defendant, after determining that defendant had gum in his
mouth and having defendant spit out the gum, Merritt did not conduct an additional
observation period and then began the testing process again. At the hearing on the
motion, the State contended that Merritt did not violate the statutory mandate or the
DHHS rules “because chewing gum is not eating,” further emphasizing that “it would
be different if [defendant] had actually taken the gum and put it in his mouth during
the observation period, but there’s nothing in this observation period definition that
required the officer to actually check the person’s mouth.” Rather, the State argued
that an analyst need only “make sure [test subjects] don’t eat, drink, regurgitate,
anything like that.” Defendant, in contrast, argued that the determination of whether
a violation occurred centered on whether “[t]here’s a foreign substance in his mouth
. . . . We did not have a second observation period after the foreign substance was
found. Therefore, we do not have the proper procedure.”
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In explaining the decision to deny defendant’s motion to exclude, the trial court
appears to have adopted the State’s, rather than defendant’s, framing of the question
and therefore focused on whether “chewing gum” was an activity covered by the plain
language of 10A NCAC 41B.0101(6). In so doing, the trial court found “that there is
no evidence that [defendant] ingested alcohol or other fluids, that he regurgitated,
vomited or smoked during the 15 minutes. Therefore, the issue is . . . whether or not
chewing gum equates to eating or having eaten within the 15-minute period.”
(Emphasis added.) After noting that “eaten” is not defined in the pertinent portion of
the Administrative Code, the trial court consulted an online dictionary and found that
a definition for “eat” is “to take in through the mouth as food, ingest, chew and
swallow in turn.”3 The trial court then held that because “chewing gum does not equal
having eaten something[,]” Merritt’s failure to conduct a second observation period
after having defendant spit out his gum was in “technical compliance with the rules
and regulations.” While it may be the case that “chewing gum does not equal having
eaten something[,]” upon our de novo consideration, we agree with defendant’s
appellate assertions that “the trial court was wrong in following the State’s
suggestion that the issue boiled down to “whether or not chewing gum constitutes
eating” and that instead, the DHHS rules here must be “interpreted to contain an
3 Consulting a dictionary to determine the plain meaning of a word not defined in a statute is
entirely appropriate. Wing v. Goldman Sachs Trust Co., N.A., 382 N.C. 288, 298, 876 S.E.2d 390, 398 (2022).
- 10 - STATE V. FORNEY
implicit requirement that foreign objects must generally be removed from the test
subject’s mouth during the observation period.”
As our Supreme Court has recently emphasized:
“The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134 (1990). Although the first step in determining legislative intent involves an examination of the “plain words of the statute,” Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291 (1991), “[l]egislative intent can be ascertained not only from the phraseology of the statute but also from the nature and purpose of the act and the consequences which would follow its construction one way or the other,” Sutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 265, 382 S.E.2d 759 (1989) (citations omitted).
State v. Alexander, 380 N.C. 572, 587, 869 S.E.2d 215, 227 (2022) (emphases added).
Thus, in attempting to ascertain the legislative intent behind a statute or rule, “strict
literalism [should] not be applied to the point of producing ‘absurd results.’ ” Proposed
Assessments of Additional Sales & Use Tax v. Jefferson-Pilot Ins. Co., 161 N.C. App.
558, 560, 589 S.E.2d 179, 181 (2003) (quoting Taylor v. Crisp, 286 N.C. 488, 496, 212
S.E.2d 381, 386 (1975)). See also Public Citizen v. United States Dep’t of Justice, 491
U.S. 440, 470, (1989) (Kennedy, J., concurring) (“Where the plain language of the
statute would lead to patently absurd consequences that [the legislature] could not
possibly have intended, [courts] need not apply the language in such a fashion.”)
(citations and internal quotation marks omitted) and Commissioner of Ins. v.
Automobile Rate Office, 294 N.C. 60, 68, 241 S.E.2d 324, 329 (1978) (holding that a
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reviewing court must avoid reading the plain language of a statute or rule in a
manner that leads to absurd or bizarre consequences).
Here, the plain language of the rule defining the observation period—the
individual words themselves—may appear to be clear and unambiguous, providing a
specific list of actions that an analyst must determine the person to be tested has not
engaged in for the fifteen minutes prior to the sample being taken: “ingested alcohol
or other fluids, regurgitated, vomited, eaten, or smoked,” with “chewed” or “chewed
gum” not appearing in the list. 10A NCAC 41B.0106(6). In addition, DHHS elected
not to end the list in this rule with a catch-all term such as “or had other substances
or foreign objects in the mouth.” Nevertheless, the intent of subsection N.C. Gen. Stat.
§ 20-139.1(b)(1), titled “Approval of Valid Test Methods; Licensing Chemical
Analysts,” is also plain and unambiguous: to ensure that chemical analysis results
are sufficiently valid that they may be admitted “in any court or administrative
hearing or proceeding” as evidence of impairment. See N.C. Gen. Stat. § 20-
139.1(b)(1). In an effort to achieve that end, the legislature has delegated to DHHS—
an agency undoubtedly more expert than the General Assembly regarding BAC
measurement, chemical analysis, and the procedures appropriate to maximize
scientific reliability and validity—the task of rulemaking regarding breath testing
via Intoximeters. In turn, DHHS has set forth various relevant definitions in 10A
NCAC 41B.0106(6) and a specific procedure for the Intoximeter employed here in 10A
NCAC 41B.0322.
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In sum, we believe the intent of both the legislature and DHHS in the
provisions pertinent here is clear: to ensure that the chemical analysis of a subject’s
breath is accurate in measuring BAC and not tainted by the presence of substances
in the mouth during testing. And in our view, to adopt the State’s position that the
observation period requirement is not violated when a subject “chews” something
during the period would lead to absurd results and have bizarre consequences
because it would mean, for example, that a subject could engage in the following
activities not listed in 10A NCAC 41B.0106(6) moments before the taking of breath
samples: chewing gum—presumably including nicotine gum—or tobacco or food that
is spit out before swallowing, dipping snuff, sucking on a medicated throat lozenge or
a hard candy, using an inhaler, and swallowing a pill. Surely if “ingest[ing] . . . other
fluids,” which would include ordinary tap water, is considered a potential problem in
ensuring an admissible chemical analysis of a breath sample, the examples just
stated would likewise be problematic. This assumption aligns with the testimony
from Merritt, a certified chemical analyst, that the purpose of the observation period
“is to allow for deterioration of mouth alcohol” before taking breath samples.
We acknowledge the testimony at trial from the State’s expert witness Cutler
but note that one of the studies he cited used only sugar-free gum and the other did
find an increased BAC reading after one type of gum was tested. Here, there was no
evidence presented about the specific type or brand of gum in defendant’s mouth
during the observation period and testing and DeGrave’s observation of defendant
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putting a piece of “mint gum” in his mouth occurred some two hours before the
chemical analysis. Further, while defendant’s chemical analysis was conducted using
the Intox EC/IR II, the two studies Cutler cited regarding the effect of chewing gum
were conducted using other testing instruments, one of which was previously used in
North Carolina, but which has since been replaced by the Intoximeter EC/ER II. In
any event, the procedures promulgated by DHHS in 10A NCAC 41B.0322 are
specified to “be followed when administering a test using the Intoximeters, Model
Intox EC/IR II and Model Intox EC/IR II (Enhanced with serial number 10,000 or
higher)” and Cutler himself testified that “over the years there have been many
different technologies for breath testing,” presumably with different procedures for
their use.
We also reject the State’s contention that chewing gum would actually make
the chemical analysis “more accurate,” citing Cutler’s testimony that chewing gum
might reduce the “mouth alcohol effect” by 85%. We disagree that the reduction of the
“mouth alcohol effect” would make the test more accurate, even if chewing gum could
have some effect, potentially beneficial to a test subject, on the chemical analysis
results. More importantly, as Cutler testified, the Intoximeter estimates alcohol in
the blood (BAC) based on a measurement of alcohol in the breath—a ratio which in
reality varies amongst different people—by using a single specific ratio to standardize
the testing of all test subjects. Test results for breath samples taken from persons
chewing gum, even under Cutler’s testimony, would likely differ from those where a
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test subject did not have foreign substances in his or her mouth during the
observation period (and while giving a breath sample). This circumstance undercuts
the efforts indicated by the DHHS rules to standardize chemical analysis by
Intoximeter and frustrates the intent of the General Assembly to automatically
permit the admission of such evidence in any court.
In this appeal, we need only address an asserted violation of the requirements
for automatic admissibility of chemical analysis of the breath on the facts before us:
that defendant had gum of an unknown sort4 in his mouth during the observation
period and during the taking of the first breath sample. For the reasons discussed
above, we hold that the DHHS observation provisions were violated in defendant’s
case and that Merritt should have conducted a new fifteen-minute observation period
after having defendant spit out his gum and before taking breath samples.
B. Prejudicial impact of error
Having concluded that the trial court erred in allowing the chemical analysis
results to be admitted in this case, we must now determine whether this error
prejudiced defendant.
A defendant is prejudiced by errors relating to rights
4 At trial, DeGrave testified that he saw defendant “putting mint gum in his mouth” as DeGrave was walking back to defendant’s vehicle after returning to his patrol car where he had attempted to check defendant’s identification materials and that of the passenger in the car. DeGrave did not testify about whether he was able to assess whether the gum was ordinary chewing gum, nicotine gum, or some other type of gum. In addition, the traffic stop was several hours prior to the chemical analysis, and nothing in the record establishes whether the gum in defendant’s mouth during the observation period and the taking of the first breath sample was the same gum which DeGrave witnessed defendant putting into his mouth.
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arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.
N.C. Gen. Stat. § 15A-1443(a) (2021).
In accordance with N.C. Gen. Stat. § 20-138.1(a)(1) and (2), the jury in this
trial was instructed that the State could establish the impairment element of driving
while impaired either by establishing that defendant (1) drove while his mental and
physical faculties were substantially impaired by the consumption of alcohol, or (2)
drove after he had consumed sufficient alcohol that he “had an alcohol concentration
of 0.08 or more grams of alcohol per 210 liters of breath.” Regarding the latter option
of proving impairment, the jury was further instructed that “[t]he results of a
chemical analysis are deemed sufficient evidence to prove a person’s alcohol
concentration.” In light of our holding above, the question is whether “there is a
reasonable possibility that” the erroneous admission of evidence of defendant’s BAC
impacted the jury’s verdict.
The arresting officer in this matter testified that running a stop sign is not,
standing alone, evidence of impairment, and that he did not witness any other illegal
or unsafe driving by defendant. Defendant was at all times during the traffic stop,
arrest, and detention able to: respond almost immediately when DeGrave turned on
the blue lights in his vehicle; pull off onto a less-traveled side street, which DeGrave
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“appreciate[d]”; appear not disheveled; have already removed the keys from his
vehicle’s ignition and placed them on the dashboard, which DeGrave again
“appreciated”; be “polite and cooperative”; understand and follow directions; engage
in conversation; inform DeGrave that he had “blades” on his person and arrange with
the officer to place them on the roof of the vehicle; place the blades on the roof without
difficulty or fumbling; and maintain his balance.
However, when DeGrave conducted standardized field sobriety tests on
defendant, he observed six out of six possible clues of impairment on the horizontal
nystagmus gaze test, two out of eight clues of impairment on the walk-and-turn test,
and two out of four clues of impairment on the one-leg-stand test. DeGrave testified
that these results taken together suggested “a 91 percent case that” defendant was
appreciably impaired. In light of this evidence and DeGrave’s testimony about
defendant’s red glassy eyes, slurred speech, and strong odor of alcohol, we conclude
that there is not a reasonable possibility that the jury would have returned a verdict
of not guilty in the absence of the erroneously admitted chemical analysis evidence.
III. Conclusion
The trial court in this matter should have excluded the State’s chemical
analysis evidence due to the analyst’s failure to conduct a proper observation period
after defendant removed gum from his mouth. Nevertheless, because defendant has
failed to establish that he was prejudiced by the trial court’s error, his conviction must
be upheld. See N.C. Gen. Stat. § 15A-1443(a).
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NO PREJUDICIAL ERROR.
Judge ARROWOOD concurs in result only.
Judge WOOD concurs by separate opinion.
- 18 - No. COA23-338 – State v. Forney
WOOD, Judge, concurring in the result only.
Although I agree with the result reached by the majority, I would hold the trial
court’s admission of the breath chemical analysis results was not error. The majority
holds the admission of the breath chemical analysis results was error but not
prejudicial error.
As the majority recognizes, “[t]he primary rule of construction of a statute is to
ascertain the intent of the legislature and to carry out such intention to the fullest
extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134,
137 (1990) (citation omitted). Thus, “[t]he best indicia of that intent are the [plain]
language of the statute or ordinance, the spirit of the act and what the act seeks to
accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629,
265 S.E.2d 379, 385 (1980) (citations omitted). However, “if the statutory language
is clear and unambiguous, then the statutory analysis ends, and the court gives the
words in the statute their plain and definite meaning.” State v. Lemus, 273 N.C. App.
155, 159, 848 S.E.2d 239, 242 (2020) (cleaned up).
As discussed by the majority, the statutory and regulatory provisions in this
case address the admissibility of breath tests results obtained by means of chemical
analysis. N.C. Gen. Stat. § 20-139.1(b) provides in pertinent part:
A chemical analysis of the breath . . . is admissible in any court . . . if it meets both of the following requirements:
(1) It is performed in accordance with the rules of the Department of Health and Human Services. STATE V. FORNEY
WOOD, J., concurring in result.
(2) The person performing the analysis had . . . a current permit . . . to perform a test of the breath using the type of instrument employed.”
N.C. Gen. Stat. § 20-139.1(b) (2021).
The pertinent DHHS regulations are found at 10A NCAC 41B.0322 and 10A NCAC
41B.0101(6) of the North Carolina Administrative Code. 10A NCAC 41B.0322
provides that when administering a test using the Intoximeter, such as the one used
in the present case, a chemical analyst must “[e]nsure [that] observation period
requirements have been met” before collecting two breath samples for analysis. In
turn, 10A NCAC 41B.0101(6) defines “observation period” as:
a period during which a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen. The chemical analyst may observe while conducting the operational procedures in using a breath testing instrument. Dental devices or oral jewelry need not be removed[.]
10A NCAC 41B.0101(6).
Here, the DHHS regulations do not explicitly list chewing gum or having gum
in one’s mouth under 10A NCAC 41B.0101(6)’s definition of “observation period.”
After hearing the evidence presented during Defendant’s motion in limine, the trial
court determined the issue regarding adherence to the regulatory procedures during
the observation period concerned whether the act of chewing gum constitutes eating.
As the trial court noted, there is nothing in the Administrative Code which offers a
2 STATE V. FORNEY
definition of “eaten” as the term is used in 10A NCAC 41B.0101(6). Therefore, this
word “must be given [its] common and ordinary meaning.” Lemus, 273 N.C. App. at
159, 848 S.E.2d at 242 (citation omitted).
Consequently, the trial court consulted a Merriam-Webster dictionary to
determine that the definition of “eat” is “to take in through the mouth as food, ingest,
chew and swallow in turn.” Based upon the ordinary understanding of the word
“eaten” in the context of the DHHS regulations, the trial court held that the officer
complied with the regulatory requirements for the observation period. Applying the
plain and unambiguous language of the statutory and regulatory provisions, the trial
court determined no evidence was presented that anything had been eaten by
Defendant during the fifteen minutes of Officer Merritt’s observations.
Although “best practice” operating procedures might have prompted Officer
Merritt to restart the observation period after having Defendant spit out the gum,
this “best practice” is not controlling. Instead, the statutory and regulatory
provisions control.
While the majority suggests we should depart from the plain language of the
DHHS regulations to avoid “absurd results” in the future, it is this Court’s role to
“interpret statutes as they are written; we do not rewrite statutes to ensure they
achieve what we believe is the legislative intent.” C Invs. 2, LLC v. Auger, 277 N.C.
App. 420, 422, 860 S.E.2d 295, 298 (2021), aff’d, 383 N.C. 1, 881 S.E.2d 270 (2022).
Thus, if “our interpretation of the plain language of a statute yields unintended
3 STATE V. FORNEY
results, the General Assembly can amend the statute to ensure it achieves the intent
of the legislative branch of our government.” Id. Because the trial court made its
determination based on the plain reading of the statute and DHHS regulations, I
would find no error. Therefore, I respectfully concur in the result only.