State v. Gray

MORRIS, Judge.

• Defendant contends, inter alia, that the trial court erred in admitting evidence of the breathalyzer test over his objection in view of the State’s failure to establish as a foundational-requirement that the test, as performed, met the operational standards prescribed by statute. We agree. The failure of the State to produce evidence of the test operator’s compliance with G.S. 20-139.1 (b) must be deemed prejudicial error.

During the course of the trial, W. P. Thomas, a qualified operator of the breathalyzer machine, testified on voir dire that he administered the test to defendant after advising him of his “rights.” The record, however, does not indicate whether Mr. Thomas followed the statutorily prescribed methods of administering the test. Under G.S. 20-139.1 (b), “[e]hemical analy-ses of the person’s breath .or blood, to be considered valid under the provisions of this section, shall have been performed according to methods approved by the Commission for Health Services and by an individual possessing a valid permit issued by the Commission for Health Services for this purpose.” The burden of proving compliance with G.S. 20-139.1 (b) lies with the State and “ . . . the failure to offer any proof is not sanctioned by the courts. ...” State v. Warf, 16 N.C. App. 431, 432, 192 S.E. 2d 37 (1972). The State’s failure to lay the proper foundation for the admission of evidence of the results of the breathalyzer test entitles defendant to a new trial.

We deem it unnecessary to address the other contentions raised by the defendant.

New trial.

Chief Judge Brock and Judge Britt concur.