An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-588


Filed: 7 January 2003


         v.                         Guilford County
                                     No. 99 CRS 102577

    Appeal by defendant from judgment entered 15 October 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

    Hall & Hall, by Douglas L. Hall, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Terry Lee Haith was charged with driving while impaired and reckless driving to endanger on 26 September 1999. His case was heard in the Guilford County Criminal District Court on 12 June 2000, where he was convicted of the driving while impaired charge, the State having decided not to proceed on the reckless driving charge. Defendant appealed his conviction to the Guilford County Superior Court on 13 June 2000.
    Defendant was tried at the 1 October 2001 Criminal Session of the Guilford County Superior Court. Again, the State did not proceed on the reckless driving charge. On 4 October 2001, the jury returned a verdict of guilty as to the driving while impaired. Defendant's sentence of 60 days was suspended, and he was placed on 12 months' unsupervised probation. Defendant also was ordered to perform 24 hours of community service.
    The State presented evidence tending to show that at approximately 3:12 a.m. on 26 September 1999, Deputy Jeffrey Greeson of the Guilford County Sheriff's Department observed a vehicle weaving within its lane of travel near the intersection of Lindsay Avenue and Murrow Street in Greensboro. Officer Greeson followed the vehicle and observed the vehicle straddle two lanes and then swerve abruptly to the left to avoid a traffic island. Officer Greeson stopped the vehicle, which was occupied by defendant alone. Noting the odor of alcohol, the officer asked defendant whether he had had something to drink. Defendant responded that he had “some beers.” Deputy Greeson also observed that defendant's speech was slurred, he was unbalanced while stepping out of the vehicle, his eyes were red and glassy, and his demeanor was carefree. Defendant performed poorly on the field sobriety tests. Deputy Greeson formed the opinion that defendant had consumed an amount of some impairing substance sufficient to appreciably impair his mental and physical faculties. Deputy Greeson arrested defendant and transported him to the detention center. Deputy Greeson took defendant into the intoxilyzer room for the purpose of obtaining a sample of his breath. Defendant refused to sign the waiver of rights form and to answer any questions. Four times defendant failed to expel sufficient breath for a breath sample. On the fifth attempt defendant pushed themachine away and instructed the officers to record him as having willfully refused to submit a sample of breath.
    At the conclusion of the State's evidence, defendant moved to dismiss the charge for insufficient evidence. The court denied the motion and noted, sua sponte, that inquiry into defendant's exercise of his rights under Miranda may have been improper. The court invited defendant to make a motion for a mistrial. Defendant conferred with his attorney and notified the court, through his attorney, that he did not desire a mistrial and that he desired to proceed with the trial. Defendant then informed the court that he did not wish to present evidence. Defendant renewed his motion to dismiss the charge and the court denied it again.


    Defendant first contends that the trial court committed plain error by not declaring a mistrial after the jury heard testimony that defendant refused to waive his Miranda rights. As noted above, defendant declined the invitation to move for a mistrial and insisted upon completing the trial. “A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c) (2001). This contention is overruled.

    Defendant's remaining contention is that the trial court erred by denying his motions to dismiss. Defendant argues the evidence is insufficient to show that defendant was operating the vehicle, that the vehicle was operating on a public highway or vehiculararea, or that defendant was impaired by an intoxicating substance.     In ruling upon a motion to dismiss, the court must determine whether the State has presented substantial evidence of each element of the offense. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
    Evidence that a motorist has been drinking, considered together with evidence of faulty driving or other conduct demonstrating impairment of mental or physical faculties, is prima facie evidence sufficient to take a charge of impaired driving to the jury and to withstand a motion to dismiss. State v. Rich, 351 N.C. 386, 397-98, 527 S.E.2d 299, 305 (2000). Here, defendant was the only occupant of the vehicle the officer observed being operated in an erratic manner on the public streets of Greensboro. Defendant admitted that he had been drinking a quantity of beer. Defendant's eyes were red and glassy, his speech was mumbled, and he was unsteady on his feet. He performed poorly on the field sobriety tests. Based upon the foregoing evidence, a jury could reasonably find that defendant was guilty of the crime of driving while impaired. This contention is overruled.
    We find no error.    No error.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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