Can a defense lawyer or a member of the public demand copies of the chemical test operator's log, breathalyzer rights form (HP-332A), or alcoholic influence report (HP-327) from a North Carolina law enforcement agency under the public records law?

Plain-English summary

Barbara Smith, Assistant Secretary of the Department of Crime Control and Public Safety, asked the AG five related questions about whether certain breathalyzer-related records were subject to public inspection under Chapter 132 (the public records law).

The AG answered no to all five. The records at issue, including the chemical test operator's log, the HP-332A breathalyzer rights form, the HP-327 Alcoholic Influence Report Form, and related notes and memoranda, were investigative materials of police agencies and exempt from the public records law. A criminal defendant could obtain the test results through G.S. 20-139.1(e) and could obtain other materials through criminal discovery under Article 48 of Chapter 15A, but not through the public records law.

The reasoning has several pieces.

The starting point is Chapter 132. G.S. 132-1 defines public records broadly: any documentary material made or received in connection with the transaction of public business by a North Carolina agency. G.S. 132-6 gives the public a right of inspection. But prior AG opinions, including Opinion to Sheriff J. Herbert Haynes (44 NCAG 340, 1975) and an October 17, 1978 opinion to Barbara Smith herself, had recognized an exemption for investigative reports and memoranda of police agencies. The breathalyzer records all fall within that investigative-records category.

The HP-332A is signed by the arresting officer, the chemical test operator, and (when willing) the defendant. It records the defendant's rights notification under G.S. 20-16.2, the arrest location and time, whether the test was refused or taken, and the test results. The disposition: the original goes to the DMV Drivers License Section (or, after submission, to the district first sergeant for review and then back to the arresting officer); copies go to the defendant and the arresting officer.

The HP-327 Alcoholic Influence Report records the officer's observations of the defendant, the defendant's performance on field sobriety tests, and the defendant's answers to officer questions. It is the officer's contemporaneous notes from the encounter.

Both forms (and the chemical test operator's log generally) are working records of the officer that document the investigation. Under the AG's reading, they are exactly the kind of investigative materials the prior opinions had exempted.

The structural argument the AG made: the statutory framework gives a criminal defendant specific tools to get evidence. G.S. 15A-904(e) lets a Superior Court defendant get discovery under Article 48 of Chapter 15A. G.S. 20-139.1(e) requires that a DWI defendant be given the test results. If breathalyzer records were public, the General Assembly would not have needed G.S. 20-139.1(e), because the defendant could just file a public records request. The existence of the specific discovery statutes is evidence that the General Assembly did not intend the records to be public. State v. Goldburg, 261 N.C. 181, framed the background rule that a criminal defendant has no general right to investigative materials absent a specific statute.

Currency note

This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Both Chapter 132 and Chapter 15A have been amended substantially since 1978. North Carolina now has detailed public records law treatment of certain law enforcement records (notably the 2018 body-worn camera amendments), and the DWI evidentiary framework has been refined by both statute and case law. The basic principle (investigative records get an exemption) has held, but the exemption's scope and the available defense access pathways have changed.

Historical context: what the AG concluded

The opinion did the following:

It applied the police-investigative-records exemption to breathalyzer records. Prior AG opinions had established the exemption. The 1978 opinion extended the exemption to the specific breathalyzer document types. That was a logical move; the documents are by nature contemporaneous officer-generated records of a criminal investigation.

It distinguished test results from procedural records. The AG noted that G.S. 20-139.1(e) requires giving the defendant a copy of the test results specifically, not all related records. So a DWI defendant always gets the breath alcohol number, but does not automatically get the operator's log, the rights form, or the AIR. Those other documents come, if at all, through criminal discovery.

It used a negative-implication argument from the discovery statutes. If breathalyzer records were public, the discovery statutes specifying defendant access would be unnecessary. The existence of those statutes signals that the records are not generally public.

It treated the records as continuing to be investigative while held by the officer. The opinion's careful framing is that the records are not subject to inspection "while held by the law enforcement agency" or "while maintained by the officer." That phrasing leaves open what happens after the case ends or the records are filed in court. Once filed in court, public-records analysis often gives way to court-records analysis with its own rules.

Background and statutory framework

The North Carolina public records law (Chapter 132) is one of the broader state public records statutes in the country. Its general policy is that public records are public, with specific exemptions for sensitive categories. The investigative-records exemption is not in the statutory text in clean form; it has developed through AG opinions and case law as a recognized category of records that the General Assembly did not intend to make public while the investigation is active.

The breathalyzer framework in North Carolina runs on G.S. 20-16.2 (implied consent), G.S. 20-138.1 et seq. (DWI offenses), and G.S. 20-139.1 (chemical test procedures and admissibility). The State Highway Patrol maintains forms HP-332A and HP-327 as standardized documentation of the chemical test process and the field sobriety encounter. Local law enforcement use similar forms.

The defendant's evidence-access framework runs on Article 48 of Chapter 15A (discovery in criminal cases), G.S. 20-139.1(e) (test results disclosure), and constitutional due process protections. Article 48 is available only in Superior Court. Misdemeanor DWI cases originate in District Court, where the defendant has more limited discovery rights. The AG opinion reflects the statutory framework at the time.

State v. Goldburg, the case the AG cited, is a 1964 North Carolina Supreme Court decision holding that absent a specific statute, a criminal defendant has no general right to compel production of investigative materials. That holding established the default rule the discovery statutes carve out specific exceptions to.

Common questions

Can the defense lawyer get the operator's log through criminal discovery?

In Superior Court, yes, through Article 48 of Chapter 15A discovery (as applicable). In District Court, the answer was more limited at the time, depending on the rules governing District Court discovery as they existed in 1978. Discovery rules have changed since.

Can a journalist or member of the public get these records?

Under the 1978 opinion, no, while the records are held by the agency. A journalist would have to find another path: court file (once filed), DMV records (in the limited ways those are public), interviews with witnesses or officials, or other source materials.

What about after the case ends?

The opinion focuses on records "held by the law enforcement agency" or "maintained by the officer." It does not say investigative records are permanently exempt regardless of case status. Subsequent case law has worked out post-conclusion treatment in considerable detail. Current practice should be checked against the latest law.

Is the test result itself public?

The test result is given to the defendant under G.S. 20-139.1(e). The opinion does not say the result is itself a public record on file with the agency; the statutory disclosure is to the defendant, not to the world. In practice, test results get introduced into evidence at trial and become part of the court record at that point.

What about Body-worn camera footage from the DWI stop?

The 1978 opinion predates body-worn cameras. Modern North Carolina law governs body camera footage with specific provisions (G.S. 132-1.4A and surrounding sections enacted in 2016 and amended thereafter). Those provisions control over the older investigative-records exemption framework for the specific medium of body camera recordings.

Did this opinion change with the modern discovery overhaul?

North Carolina substantially expanded criminal discovery rights in 2004 (the "open file" discovery amendments). Those changes affected the access path for defendants, but did not necessarily change the public records analysis. The basic structural point (defendants get records through criminal discovery, not through public records requests) survived.

Source

• Landing page: https://ncdoj.gov/opinions/public-records-chemical-test-operators-log-breathalyzer-rights-form/

Citations

• N.C.G.S. § 132-1
• N.C.G.S. § 132-2
• N.C.G.S. § 132-6
• N.C.G.S. § 15A-904(e)
• N.C.G.S. § 20-139.1(e)
• N.C.G.S. § 20-16.2
• Article 48 of Chapter 15A
• State v. Goldburg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978 (1964)
• 44 NCAG 340 (1975) (prior AG opinion to Sheriff J. Herbert Haynes, McDowell County)
• AG opinion to Barbara Smith dated October 17, 1978

Original opinion text

Subject:

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

Conclusions: No. 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.

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 N.C. 181, 134 S.E.2d 334, cert. denied 377 U.S. 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 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 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 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