STATE OF NORTH CAROLINA
v
.
LAWYER EDWARD GREGORY
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Samuel L. Bridges for defendant-appellant.
WALKER, Judge.
Defendant was found guilty of habitual driving while impaired
(DWI) and driving while license revoked (DWLR). He was sentenced
to a minimum of 19 months and a maximum of 23 months for his
habitual DWI conviction and to 120 days for the DWLR conviction.
The trial court suspended defendant's DWLR sentence on the
condition that he be placed on probation for 36 months with
intensive probation for 6 months.
The State's evidence tended to show that in the early morning
hours of 20 June 2001, Deputy Sheriff Brian Clifton of the Johnston
County Sheriff's Department was on routine patrol traveling north
on Brightleaf Boulevard in Smithfield when he observed a vehicle
traveling in the same direction make an “abrupt” movement from the
right lane into the left turn lane without signaling. DeputyClifton pulled behind the vehicle and followed it as it made a left
turn and accelerated to 50 miles per hour in a 25 mile-per-hour
zone. After Deputy Clifton activated his siren and blue lights to
initiate a stop, the vehicle “jammed on the brakes approximately
three times, hard stops.” The vehicle turned onto a side street
and then stopped in the middle of the lane of traffic rather than
pulling off the edge of the road.
Deputy Clifton testified that, as he approached the vehicle,
the driver's side window was down, and he noticed a strong odor of
alcohol coming from inside the vehicle. He also testified that
after he determined defendant was the driver, he asked him if he
had been drinking, and defendant responded “that he had a few beers
about an hour ago.” Deputy Clifton asked defendant if he had a
driver's license, and defendant responded that he did not. Deputy
Clifton then asked defendant to step back to the patrol car to
determine the status of defendant's driver's license.
Deputy Clifton further testified that, as defendant began
walking towards the patrol car, “[h]e staggered, [and] placed his
left hand on the side of the van” to steady himself. When
defendant got into the patrol car, Deputy Clifton noticed defendant
had a strong odor of alcohol, red, glassy eyes and slurred speech.
As Deputy Clifton administered two alco-sensor tests, he received
a report that defendant's driver's license had been revoked.
Deputy Clifton then informed defendant that he was going to be
placed under arrest for DWI and DWLR and that the vehicle would be
seized as a result of the incident. Deputy Clifton testified that,at this point, defendant became “belligerent” and “combative” and
“didn't want to cooperate in any way.” Deputy Clifton further
testified that he did not request defendant to perform any field
sobriety tests because he “didn't feel it was in his [defendant's]
best interest...[since] it wouldn't be safe.”
Deputy Clifton took defendant to the intoxilyzer room of the
Smithfield Police Department, where Officer Greg Franklin began to
read defendant his intoxilyzer rights. Deputy Clifton testified
that defendant argued with Officer Franklin, cursed and became
“very belligerent, uncooperative, [and] extremely combative....”
After Officer Franklin finished reading defendant his intoxilyzer
rights, defendant refused to sign the intoxilyzer rights form or to
submit to the intoxilyzer test.
Deputy Clifton read defendant his Miranda rights and asked
him to answer questions for the alcohol incident report, but
defendant refused. Deputy Clifton and Officer Franklin then took
defendant to the magistrate to be charged.
At trial, Deputy Clifton testified that, in his opinion,
defendant had consumed a sufficient quantity of an impairing
substance to appreciably impair his mental and physical faculties.
Officer Franklin similarly testified that, in his opinion,
defendant was appreciably impaired based on his interaction with
defendant in the intoxilyzer room.
Defendant first contends the trial court erred in denying his
motion to dismiss for insufficient evidence. Specifically,
defendant argues that, because the State's evidence did not includean intoxilyzer test or any field sobriety tests, it failed to
present sufficient objective evidence that he was appreciably
impaired to sustain his conviction for DWI.
In ruling on a motion to dismiss for insufficient evidence,
the trial court must determine whether substantial evidence of each
element of the offense charged has been presented. State v. Carr,
122 N.C. App. 369, 470 S.E.2d 70 (1996). “'Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” State v. Bullard, 312 N.C.
129, 160, 322 S.E.2d 370, 387 (1984) (citation omitted). The trial
court must view all evidence in the light most favorable to the
State and draw all reasonable inferences in the State's favor.
State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994).
“A person commits the offense of habitual impaired driving if
he drives while impaired as defined in G.S. 20-138.1 and has been
convicted of three or more offenses involving impaired driving....”
N.C. Gen. Stat. § 20-138.5(a) (2001). For a defendant to be guilty
of driving while impaired under N.C. Gen. Stat. § 20-138.1 (2001),
the State must prove “that defendant had ingested a sufficient
quantity of an impairing substance to cause his faculties to be
appreciably impaired.” State v. Phillips, 127 N.C. App. 391, 393,
489 S.E.2d 890, 891 (1997) (citation omitted).
An intoxilyzer test and field sobriety tests are not required
to establish a defendant's faculties as being appreciably impaired
under N.C. Gen. Stat. § 20-138.1. See, e.g., State v. Rich, 351
N.C. 386, 527 S.E.2d 299 (2000). Further, “it is a well-settledrule that a lay person may give his opinion as to whether a person
is intoxicated so long as that opinion is based on the witness's
personal observation.” Rich, supra, 351 N.C. at 398, 527 S.E.2d at
306 (citing State v. Lindley, 286 N.C. 255, 258, 210 S.E.2d 207,
209 (1974)). An officer's opinion that a defendant is appreciably
impaired is competent testimony and admissible evidence when it is
based on the officer's personal observation of an odor of alcohol
and of faulty driving or other evidence of impairment. Rich,
supra; Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970); State
v. Hewitt, 263 N.C. 759, 140 S.E.2d 241 (1965). The refusal to
submit to an intoxilyzer test also is admissible as substantive
evidence of guilt on a DWI charge. State v. Pyatt, 125 N.C. App.
147, 479 S.E.2d 218 (1997).
Here, Deputy Clifton testified that he observed defendant make
an abrupt lane change without signaling, speed and “jam” on his
brakes before stopping in the middle of a lane of traffic. He also
testified that he noticed a strong odor of alcohol coming from
defendant and that defendant had red, glassy eyes as well as
slurred speech. Further, Deputy Clifton testified that defendant
staggered when he walked to the patrol car and had to steady
himself against his vehicle. Both Deputy Clifton and Officer
Franklin testified that, in their opinions, defendant's faculties
were appreciably impaired. Defendant also refused to submit to an
intoxilyzer test after being read his intoxilyzer rights. Thus,
based on this evidence of defendant's impairment, we hold the trialcourt did not err in denying defendant's motion to dismiss for
insufficient evidence.
In his next assignment of error, defendant argues that the
trial court erred in denying his motion in limine to suppress and
bar the use of his prior DWI convictions. Defendant contends that
N.C. Gen. Stat. § 8C-1, Rule 609 (2001) prohibits the use of prior
DWI convictions for impeachment purposes when the convictions are
“unclassified” misdemeanors.
We first note that Rule 609 permits impeachment by “evidence
that the witness has been convicted of a felony, or of a Class A1,
Class 1, or Class 2 misdemeanor....” N.C. Gen. Stat. § 8C-1, Rule
609(a). The classification of a DWI conviction involves a review
of applicable statutes. N.C. Gen. Stat. § 20-138.1(d) states that
“[i]mpaired driving as defined in this section is a misdemeanor.”
N.C. Gen. Stat. § 15A-1340.23(a) (2001) provides that “[i]f the
offense is a misdemeanor for which there is no classification, it
is as classified in G.S. 14-3.” The relevant portion of N.C. Gen.
Stat. § 14-3 (2001) states that
[a]ny misdemeanor that has a specific
punishment, but is not assigned a
classification by the General Assembly
pursuant to law is classified as follows,
based on the maximum punishment allowed by law
for the offense... (1) If that maximum
punishment is more than six months
imprisonment, it is a Class 1 misdemeanor....
N.C. Gen. Stat. § 14-3(a)(1). The maximum punishment permitted by
statute for misdemeanor DWI is imprisonment for “a minimum term of
not less than 30 days and a maximum term of not more than 24
months.” N.C. Gen. Stat. § 20-179(g) (2001). A careful reading of these statutes leads us to conclude that a DWI conviction is a
Class 1 misdemeanor and, thus, is admissible for impeachment
purposes under Rule 609(a). Therefore, we hold the trial court
properly denied defendant's motion in limine to suppress his prior
DWI convictions.
We have carefully reviewed defendant's remaining assignment of
error and find it to be without merit.
No error.
Judges McCULLOUGH and TYSON concur.
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