Public Records; Chemical Test Operator’s Log; Breathalyzer Rights Form

Subject:

Requested By: Barbara Smith Assistant Secretary Department of Crime Control and Public Safety

Questions: Is the Chemical Test Operator’s Log (DHS-2069) a public record and subject to inspection while in the possession of the chemical test operator?

 

1.  
2. Is the Breathalyzer Operational Checklist (DHS-2012) which is completed and maintained by the breathalyzer operator a public record and subject to inspection?

    

3. Is the copy of Form HP-332 (Affidavit Form) maintained by the arresting officer which is completed when a person refuses to take a chemical test to determine alcoholic content of the blood, a public record and subject to inspection?

    

4. Is the copy of the HP-332A (rights of person requested to take chemical test to determine alcoholic content of blood under G.S. 20-161.(a)) which is maintained by the arresting officer a public record and subject to inspection?

    

5. Is the copy of the Alcohol Influence Report (HP-327) which is maintained by the arresting officer and the copy maintained at troop headquarters a public record and subject to inspection?

    

Conclusions: No.

 

1.  
2. No.

    

3. No.

    

4. No.

    

5. No.

    

The General Assembly has defined the term public records to mean ""public record" or "public records’ shall mean all documents, papers, letters, maps. . . . or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina Government or its subdivisions." G.S. 132-1.

A custodian of a public record is the "public official in charge of any office having public records." G.S. 132-2. "Every person having custody of public records shall permit them to be inspected and examined at reasonable times and under the supervision by any person, and he shall furnish certified copies thereof on payment of fees as prescribed by law." G.S. 132-6.

As we have previously noted, there is an exemption from the public records law for investigative reports and memoranda concerning investigations of crimes maintained by police agencies. Opinion of the Attorney General to the Honorable J. Herbert Haynes, Sheriff of McDowell County, 44 NCAG 340 (1975); Opinion of the Attorney General to Barbara Smith, Assistant Secretary, Department of Crime Control and Public Safety, NCAG (October 17, 1978). If the records mentioned fall within the exemption for records of police agencies, then they will not be subject to inspection absent an order from a court of competent jurisdiction.

The Chemical Test Operator’s Log contains information on criminal defendants who are requested to take a chemical test to determine alcoholic content of the blood. Th Log contains the operator’s name, the driver’s license number, name, birth day and sex of the person arrested. The date and time of arrest, the time and results of chemical test, if an accident was involved, the type of accident and additional arrest information such as the arresting officer’s name. The original of this Log is maintained by the chemical test operator. A single copy is made and sent to the Division of Health Services. The operator retains the original of the Log and uses this information to refresh his memory so that he may testify in court.

This information is evidence in a criminal trial. A criminal defendant can normally only obtain such evidence through discovery pursuant to Article 48 of Chapter 15A. This discovery is only available in superior court. G.S. 15A-904(e) would allow a criminal defendant in superior court to obtain this information. Without this statute, the defendant would have no right to find out this information. State v. Goldburg, 261 NC 181, 134 SE 2d 334, cert. den. 377 US 978 (1964). However, pursuant to G.S. 20-139.1(e), a defendant in a DUI case must be furnished a copy of the test results, nothing else. There would be no need for G.S. 20-139.1(e), if these records were public and subject to inspection. The General Assembly could not have intended that a defendant be required to discover test procedures or results pursuant to Article 48 of Chapter 15A or G.S. 20-139.1(e), while the general public had an unqualified right to such documents.

The Breathalyzer Operational Checklist is a form provided to operator’s of breathalyzer machines to assure that the instrument test was performed in accordance with the regulations of the Commission for Health Services of the Department of Human Resources. A chemical test operator must be prepared to testify that he performed the test according to the methods approved by the Commission for Health Services. G.S. 20-139.1(b). The Breathalyzer Operational Checklist is optional and is completed by the breathalyzer operator. Only an original is made and it is maintained by the operator and used by him to testify in court. Again, this item is a memorandum or report made by a law enforcement officer and therefore only subject to disclosure to a criminal defendant pursuant to Chapter 15A. Since a criminal defendant cannot obtain it except in superior court, the Legislature could not have intended that this item be a public record and subject to disclosure pursuant to Chapter 132.

The third question presented is whether the HP-332, Affidavit certifying refusal to take the breathalyzer test, is a public record and subject to inspection in the hands of the arresting officer.

G.S. 20-16.2(c) and (d) require that the arresting officer and the person authorized to administer a chemical test prepare a sworn report to the Division of Motor Vehicles before an individual’s license can be revoked for willfully refusing to submit to a test to determine the blood alcohol concentration. The original of this Affidavit is submitted to the Division of Motor Vehicles and a copy is maintained by the arresting officer. The arresting officer’s copy would be considered his notes or report and therefore not subject to disclosure as is the case to items specified above.

The HP-332A sets forth the name of the person arrested, place arrested, time and date of arrest and a statement of the rights contained in G.S. 20-16.2. This form is signed by the arresting officer, the chemical test operator, the defendant, if willing, and provides for a statement as to whether the test was refused and if not the date and time of the test and the test results. When the defendant refuses to take the test the original is submitted to the the Drivers License Section of the Division of Motor Vehicles. The first copy is given to the defendant and the second copy is retained by the arresting officer. A third copy may be attached to the warrant. When the defendant submits to the test, the original is sent to the district first sergeant for review and then given back to the arresting officer. The first copy is given to the defendant and the second copy may be attached to the warrant. The question presented is whether the copy maintained by the police officer (either sent to the first sergeant and returned or maintained by the officer at all times) is a public record and subject to inspection. It is part of the evidence in a criminal trial and is maintained by the law enforcement officer. As stated above, his copy is not subject to inspection.

The Alcoholic Influence Report Form (Hp-327) is completed by the arresting officer. The arresting officer records his observations, the defendant’s performance on certain tests and the defendant’s answers to certain questions. Other data is also contained. This form is merely provided to allow the officer to record his findings. The original is maintained by the arresting officer and the copy is submitted to troop headquarters. If the defendant refuses, then a copy of the front page of the AIR form is submitted to the Drivers License Section of the Division of Motor Vehicles. Again, this information would be the notes, reports and memoranda of the law enforcement officer and not subject to disclosure while maintained by the officer.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Assistant Attorney General