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Senate | May 19, 2016 | Chamber | Judiciary II Senate

Full MP3 Audio File

[BLANK_AUDIO] The Senate members that cheered the House is still in session so that we don't need a House member [BLANK_AUDIO] [BLANK_AUDIO] [BLANK_AUDIO] So we will hold off just a moment. Did you count David? [INAUDIBLE] Okay. We are gonna go to the preliminaries for the meeting. Skipsstam/g is the one who has the bill on the calendar today and we are waiting for him to be here because the house is still in session. So it should be shortly so we will be waiting on Representative Stam. The Sergeant-at-arms today is Joe Jeffrey. Thank you. Becky Merrick. Becky, thank you. And Hal Roach? Thank you Hal for being here, thank you for helping us. And you know it does take work for the Sergeant-at-arms and the staff to get everything set up for the meeting. So I'd like to take just a moment to thank the members and the staff that did everything so that got all the copies run, make sure everybody is on cue for what they need to do. We have some pages today that are helping us. And I'm just gonna let each If the pages would stand up. Pages? And if you would just identify yourself and say where you're from and who your sponsor is. >> [INAUDIBLE] >> My name is Kate Taylor, I'm from Wilson, North Carolina, and my Senator is Senator [INAUDIBLE]. My name is Jennifer Chen. I'm from Chapel Hill, North Carolina and my senator is Senator Mike Woodard. >> My name is [INAUDIBLE] I'm from Riley and my [INAUDIBLE] senator is Senator Soucek. >> [INAUDIBLE] I'm from Durham, North Carolina and [INAUDIBLE] >> And on this side. >> [INAUDIBLE] >> Well she looks like she's young enough for a page but pages we do thank you for being here this week and we hope you had a good experience and we look forward to having you come back to see us so thank you. A little update on the calendar. We removed two bills last night that may have budgetary implications and there's also provisions in the budget so we pulled those two bills. The Senate Bill 741 which is sponsored by Senator Davis, it was removed this morning because the companion bill House 970 passed in the House this morning. So with Senator Davis' consent we have removed senate bill 741 so the only bill that we have on our calendar today is house bill 357, and as I said we are awaiting Representative Stam. >> [INAUDIBLE] Thank you and we will do so, we will turn it over to staff and let them explain the bill to the members. >> Thank you madam chair [INAUDIBLE] >> There is a PTS so senator Bingham moves that we will let the [UNKNOWN] those in favor say aye. >> Aye. >> Any opposing? Thank you. PCS is before the committee [INAUDIBLE] [BLANK_AUDIO] [BLANK_AUDIO] House Bill 357. The long title has been changed in that the PCS. It is now a bill entitled an act to amend procedures governing the

admissibility of written chemical analyses reports. It doesn't refer only to toxicology. It refers to any type of chemical analyses. Right now the only things that the PCS does is that it amends a provision in the motor vehicles chapter of the general statutes. The original bill was amending provisions in the chapter regarding evidence in chapter eight. This is moving the provisions and the changes to chapter 20 governing motor vehicles. Driving while impaired it relates to implied consent offence. If you look in the background information on the summary, DWI and another number of offenses are what are considered implied consent offences in North Carolina. If an individual is charged with one of those offenses, they are required to submit to a chemical analyses if requested and if the person refuses they could be subject to an administrative suspension or temporary revocation of their drivers license. In addition if an individual refuses, that refusal can be used as evidence in the trial as evidence of their guilt of the underlying offense. This particular bill changes the notice and demand provisions in North Carolina law which have been upheld as constitutional previously. Under current law if the state wishes to introduce a chemical analyses statement after the gave a report into evidence. The state is required to give a notice of its intent to introduce that without the testimony of the analyst and also to do that within 15 days of the hearing. This bill amends various sections and chapter 20 that would not only require the state to continue to confine with the 15 day before hearing provision and requires the state to also provide it within 15 days of receiving the report, statement of affidavit. And that way the state would not be able to obtain the report or receive the report and then wait six months and wait until two weeks before trial to have the report statement or affidavit admitted or to give its notice of intent to have it admitted without the testimony of the analyst and to give the defendant an opportunity to object. This also changes the law indicating that if a defendant objects in a proceeding, that the state gives notice and demand in a proceeding. If the state fails to give notice and demand that the defendant failed to object to the admission of the report, statement or affidavit without the testimony of the analyst. That whatever happens in the first hearing or doesn't happen in the first hearing, if that hearing or proceeding is continued then the action or inaction that the state of the defendant took the first opportunity continues through all of the continued hearings. Therefore, it does not give either the state or the defendant a second bite at the apple. In addition, the last arrow bullet point indicates that the current law provides that the defendant's failure to file a timely objection to is the introduction of a chemical analysis affidavit in District court is deemed to be a waver of the right to object to the admissibility of that affidavit. The PCS would add a provision requiring that if the person fails to object and the waver occurs, that the affidavit shall be admitted as evidence without the analyst testimony. The PCS also makes some clarifying changes for consistency purposes within 20-139.1 to terms report affidavit and statement. There were some inconsistencies in the previous law. And that would be the summary. Are there any questions? Senator Brown. >> Thank you, Madam Chairman. I've got a personal experience with this in which I hope solves. If a wildlife officer pulls over some that they think is drunk, and they have a boat full of beer cans and other things.

And they refuse to blow, they risk resolve that problem? [BLANK_AUDIO] Anybody from the wildlife [INAUDIBLE]. >> It's the chairman of the county commissioners who had implicated me in this event so this is real personal to me. >> Madam Chair. >> Senator Bingham, I don't know the answer to that, and I'll look into that and let you know. >> just from reading it, it appears that that's exactly what he'll to do cuz right now there's not anything that can be done. A wildlife [INAUDIBLE] and they are who knows what but refused to blow at the time, this was a year or so ago, they would just [INAUDIBLE] It appears this would solve that problem. >> Madam Chair, If I may. My feeling about this is that it would apply to any situation in which any chemical analyses report is thought to be introduced into evidence and it's in a court proceeding. So this applies only to the use of an affidavit statement or report. The report may include the statement and affidavit. It would apply to the admissibility of any type of chemical analyses report if it's uses is thought to be introduced into evidence in the court without the testimony of the analyst. And perhaps Representative Stam would be able to comment further on that. We have Representative Stam who is the primary bill sponsor here now- >> [COUGH]. >> For informational purposes Jane has gone over the bill explanation. We've had one question from senator Bingham. And I think Jane has addressed that. If you want to speak on the bill then we will entertain other questions. >> [INAUDIBLE] Ask him your question. >> Very briefly thank you Chair. Randleman and members Representative Browley, Faircloth, Faircloth being a long time law enforcement officer. Clerks office and also Rick Glazier was primary sponsor is being translated into better place but as recently a week ago he told me that he liked your version better than the house version. The senate has approved this, the urge was a 50 person stakeholder group of the entire criminal justice system to think of dozens of ways to expedite the efficiency of the criminal justice system without negatively impact in anyone's right and this is one of the recommendations, most of it was passed last year in House bill 173. The basic idea here is we wanna our analyst to spend more time analyzing and testifying when it's really contested but not just spending a lot of time in their cars and in the back of courtrooms. So, this goes along way towards that and I really appreciate the Senate committee fixing this Bill, this is a case where the Senate has improved at House business bill. So if you have further questions I'd be glad to answer >> [CROSSTALK] [LAUGH] >> Representative Huming/g do you want to add anything? >> Just as I legally need it and [INAUDIBLE] >> So I have, Senator Bingham you want address your question to Representative Stam? >> If you wish I'd be happy to.Representative Stam, there is an instance that I was involved in where a public official was drunk in a boat and refused to blow, and couldn't be prosecuted. According to page five line 28 to 32 it appears that that would resolve the problem is it that or am I wrong. >> Well that's current law. That should solve that problem. Yeah if you [INAUDIBLE]. >> [INAUDIBLE] I don't know. But this bill doesn't change that. I tell you what the house just passed the bill that makes the penalty for voting while impaired the same as driving while impaired and that would probably be a good place for an amendment to take care of that problem. >> There you go. >> Thank you Jackson. [CROSSTALK] [LAUGH]

>> Voting while impaired [LAUGH]. Millions of people would be convicted and Senator Jackson met with our stakeholder group and was actually part of this process. >> And I really appreciate it. And I've kinda lost my voice and I apologize for that. This is a really important area to address for exactly the reasons you stated. A lot of people aren't aware of how much time we spend in court instead of analyzing drugs and blood. So this is great to try and get them back there in their labs more often, which is where we pay them to be. I have a specific question about the addition of the provision that the state shall notify the defendant no later than 15 days after receiving the report. That's on page three, line 28. And that seems to me to be the most consequential part of the bill. And that does raise the burden somewhat on the state. And so my question is as the law stands the state must notify the defendant. Basically the state has to tell the defendant if the prosecution is not planning on calling the person who tested the blood. The Analyst. Right now there's the supreme court Case [INAUDIBLE] you have to call the actual analyst who tested the blood. And this is a way to get around that because we want out analyst testing blood and our way of getting around that has been upheld as constitutional as long as we provide notice to the defense. And you right now you have to provide notice 15 days before the proceeding. So 15 days before the trial. And this would add a provision the state also has to provide notice no later than 15 days after receiving the blood work or the report. And so my question is, it says the state shall notify the defendant 15 days after receiving the report. Does the state in this usage mean the District Attorney's office? >> Yes. >> Okay. That was my question you get the- >> That's the case then that's fine because we'll have 15 days. Whereas/g that could be construed to means law enforcement. Then we've got a problem. >> I'm sure this is the DA. The new [INAUDIBLE] refer that to her >> Yes this fall >> The reason is, is the DA who gets the report and he an intention or not of whether, because/g Other parts of the state don't have intentions about producing evidence, it's only the DA who has intentions of producing evidence or not. >> I agree with you completely, I'm just thinking like defense attorney trying to exclude blood report and reading the statute to say, if there's the state, and technically that includes law enforcement [BLANK_AUDIO] I would have no objection to a amendment either here or on the floor to say the district attorney notifies the defendant. >> Well if that's necessary, and it may not be, I haven't spoken with you about this but we'll take a closer look at it and if we decide that's necessary I'd appreciate it [BLANK_AUDIO] We will look at that in chapter eight. [INAUDIBLE] Forensics analysis report and chain of custody, it does specifically place the District Attorney within the context of the I believe that clarification would be helpful and [INAUDIBLE] >> Can we do that in the committee. If we could go ahead and get an amendment drafted. Senator Daniel >> Thank you madam chair [INAUDIBLE] They way I read this it only applies in chapter 20 [INAUDIBLE]. Only provide, apply and impair/g driving offences [INAUDIBLE] expand into drug analysis [INAUDIBLE] >>Representative Stam? >> Yeah, I believe that's not correct. It just happens to be in Chapter 20 because that's where it was previously and the idea was to have it at one statute rather than repetitively in other places. So unless I'm wrong it would apply in other states. >> Staff will respond. >> Thank you madam chairman. With regards to that as I indicated in my other comments, this began in chapter eight bill But this was paced in Chapter 20 because this particular bill pertains only to the [INAUDIBLE] in Chapter 20 and that's a problem after Chapter 20.

Was that a question? >> Well, you've probably answered right. I thought we were trying to consolidate him so we didn't have to conflict things of statutes. So is there, >> [INAUDIBLE] A moment till Seth has a chance to look this up. >> And if I may [INAUDIBLE] and [BLANK_AUDIO] Do you know if she's available? Is she available? >> I don't know but if I can [INAUDIBLE] [INAUDIBLE] >> I'm not sure it said that anywhere but, >> Representative Sam would you like to respond? >> I don't know that it said that it only applies to anywhere in Stand Chat for 20 and of course a catch line that says proceed to govern chemical analysis [INAUDIBLE] your position to control drinking problems but, >> [INAUDIBLE] [BLANK_AUDIO] And that's existing there, are you right? All right. >> Madam chair we [INAUDIBLE] in order to answer that the staff to work on moving the bill from Chapter 8 to Chapter 20 [INAUDIBLE] >> Oh, maybe it's because it was already covered in Chapter 8. >> [INAUDIBLE] >> Yes, that's it, that's it. >> [INAUDIBLE] >> You're right, you're right So everybody will be on the same page, will you explain your analysis later? >> If that's how you understand it, yes this applies to Chapter 20 because we already have something equivalent in Chapter 8, but they're supposed to be approximately the same, or exactly the same. Madam chair, my understanding was that the intent was that the provision for Chapter 20 be consistent with the provision on the availability of forensic evidence [INAUDIBLE] is already in Chapter 8. >> Did that answer your question Senator Daniel? Other questions from the committee And we are addressing, yes Senator Davis. >> More of a comment than a question, thank you Madam Chair. I particularly appreciate the part of this bill that helps lab technicians stay in the lab, that's assuming a trial goes as scheduled and that's an unwarranted assumption I guess, it's particularly problematic in the western part of the state because a lab technician can spend two days travelling when they really should be in the lab and so I really I'm grateful for this. It's a long way here from Murphy. >> Thank you. And I will comment also that in working through the process of this bill. I've sent it to the School of Government repeatedly [INAUDIBLE] version 20 and what the bill does is it sets procedural process so we're not talking about the Melendez Diaz case. We're setting procedure and And the School of the Government has kind of given us the thumbs up on the procedural aspect of the bill. Yes, Senator Bingham. >> Madam Chairperson. >> Excuse me just a second. >> If I may with regards to Senator [INAUDIBLE] the current law and numerous [INAUDIBLE]. >> Yeah, he may want to hear what you're saying Senator Jackson, I think Ms. Paul is speaking to your amendment or possible amendment. >> This may be something, Senator Jackson, that staff needs to look into and discuss with you and could be offered a before amendment because some of it changed is gonna have you change the [INAUDIBLE] In the statutes not just that one and so we'll have a number of amendments current law in chapter 20 refers to state and so we need to look at it within the context of all the [INAUDIBLE] and [INAUDIBLE] Again it will be a matter for the general assembly to determine if it's not specifically at the time anywhere for or after 20-139.1 whether it's necessary or it's desirable [INAUDIBLE]

>> Thank you. So we'll work on that, Senator Jackson, before it gets to the floor. We have the other bill sponsor Representative Faircloth, anything you wanna add to the discussion. >> Thank you, Madam Chair. Just on behalf of all the folks that work in the lab and the law enforcement officers that are out there trying to help the DA move these cases through. This is sorely needed, it would make quite a difference. Thank you. >> Thank you. Other questions from the committee? I see Dr. Byrd from the crime lab and I would like to give him a few moments to speak on the bill. >> [INAUDIBLE] Again we would appreciate being able that this will help us. After [INAUDIBLE], in the first six months there was a 600% increase in the amount of time my analysts were spending in testimony in the courtroom which is time spent away from the lab [INAUDIBLE] >> and also we have some DAs and also [INAUDIBLE] from the DAs conference so whichever wants to speak all three of you or whatever wants to speak. >> DAs have generally no problem supporting the bill but Madam Chairman is it appropriate for me to address the - >> This is the District Attorney Gary Frank >> Representative from Derby County and I think you're gonna open up a real can of worms if you change the reference from the state to the DA there. I think it may have some repercussions throughout this statute and other statutes, I think its pretty clear, the only addition is that 15 days after getting this report may be a very very long time before the case is actually tried. No problem, it's just, the DA's office will have to develop a procedure to get that in whether they've even looked at the cases what they're really gonna call that analyst under this. We have no problem. >> So Senator Jason, if you will work with Jen/g Paul and possibly in possibly the conference to see if the change is needed or not and then let us know and we'll assist in any way that we can. So are there members from the public that would like to speak on the bill? Okay. So any other questions or comments? >> Move for a favorable report at the appropriate time, Madam Chair. >> Thank you Senator McInnis/g and I need a second. >> [INAUDIBLE] >> Pardon me? >> I think Senator Bingham had another comment. >> Senator Bingham, do you have another question or comment. >> I move for a favorable report. >> And I heard a second somewhere? Yes, Senator Woodard. So members we have motion and second to give a favorable report to the PCS unfavorable to the original. Those in favor say aye. >> Aye. >> Any opposing? The PCS passes and it will move to the floor so thank you very much and the meeting is adjourned. [BLANK_AUDIO]