DWI statute · North Carolina General Statutes, Chapter 20

G.S. 20-38.5. Facilities

The full text of G.S. 20-38.5 (Facilities), with plain-English commentary from North Carolina DWI defense attorneys Chris Adkins and Chris Purkey in the side column. Article 2D: Implied-Consent Offense Procedures.

Attorney commentary

G.S. 20-38.5 sets the ground rules for getting into the breath-test room and reaching a person held after an implied-consent arrest. In each county, the chief district court judge, the Department of Health and Human Services (DHHS), the district attorney, and the sheriff must set a written procedure for attorneys and witnesses to reach the chemical analysis room, approve where the implied-consent rights notice is posted there, and approve a procedure that lets family, friends, or a qualified person called to draw blood or urine reach an arrested person who is held and cannot get pretrial release. Public signs must explain these procedures. In a State or municipal building, the highway patrol head or police chief replaces the sheriff; for a mobile or temporary instrument, DHHS acts alone.

What it means in a DWI case

It is how the witness right in G.S. 20-16.2 works in practice: the witness a person chooses before a breath test needs a posted, known way to get into the room.
It supports the access rights a magistrate addresses under G.S. 20-38.4, such as people coming to the jail to see the person’s condition.
Subdivision (a)(3) expressly provides for a qualified person to come in and collect blood or urine, which matters when someone held in custody wants an independent test.

Watch for

Get the county’s written access procedure and photos of the signs, and compare them with what the witness was told at the front desk. A witness who followed posted instructions and was still kept out has a stronger “reasonable efforts” argument.
Timing: lobby video, visitor logs, text messages, and the test ticket can show when the witness arrived compared with when the test started.
The statute does not itself state a remedy. Relief usually comes through suppression under G.S. 20-16.2 or a motion to dismiss for denied access.

Key cases

We found no published NC appellate decision construing G.S. 20-38.5 by name. Courts apply these access-rights decisions:

State v. Hatley, 190 N.C. App. 639, 661 S.E.2d 43 (2008) — breath results should have been suppressed where the chosen witness arrived in time, told the front desk why she was there, and was never brought in for the test.
State v. Buckheit, 223 N.C. App. 269 (2012) — same result where the witness waited in the lobby as told; she made reasonable efforts to gain access but was prevented.
State v. Knoll, 322 N.C. 535 (1988) — DWI charges were dismissed where magistrates’ statutory violations kept defendants from family and friends and irreparably prejudiced their ability to gather evidence.

Commentary by Attorney Chris Adkins & Attorney Chris Purkey, Adkins & Purkey, PLLC · Reviewed November 2026 · General information, not legal advice.

§ 20-38.5. Facilities.

(a) The Chief District Court Judge, the Department of Health and Human Services, the district attorney, and the sheriff shall:

(1) Establish a written procedure for attorneys and witnesses to have access to the chemical analysis room.

(2) Approve the location of written notice of implied-consent rights in the chemical analysis room in accordance with G.S. 20-16.2.

(3) Approve a procedure for access to a person arrested for an implied-consent offense by family and friends or a qualified person contacted by the arrested person to obtain blood or urine when the arrested person is held in custody and unable to obtain pretrial release from jail.

(b) Signs shall be posted explaining to the public the procedure for obtaining access to the room where the chemical analysis of the breath is administered and to any person arrested for an implied-consent offense. The initial signs shall be provided by the Department of Transportation, without costs. The signs shall thereafter be maintained by the county for all county buildings and the county courthouse.

(c) If the instrument for performing a chemical analysis of the breath is located in a State or municipal building, then the head of the highway patrol for the county, the chief of police for the city or that person’s designee shall be substituted for the sheriff when determining signs and access to the chemical analysis room. The signs shall be maintained by the owner of the building. When a breath testing instrument is in a motor vehicle or at a temporary location, the Department of Health and Human Services shall alone perform the functions listed in subdivisions (a)(1) and (a)(2) of this section. (2006-253, s. 5.)

Official text of N.C. Gen. Stat. § 20-38.5 as published by the North Carolina General Assembly (Chapter 20 PDF, retrieved November 10, 2026). Verify the current version on ncleg.gov ↗.

G.S. 20-38.5. Facilities

§ 20-38.5. Facilities.

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