2. Evidence--results of alco-sensor test--alcohol cause of impairment
The trial court erred in a criminal contempt proceeding arising from defendant's public
intoxication in court for a driving while impaired charge by admitting the results of defendant's
alco-sensor test, because: (1) N.C.G.S. § 20-16.3(d) provides that the only instance in which the
results can be used for substantive evidence is to determine whether a person's alleged
impairment is caused by an impairing substance other than alcohol; and (2) the test in this case
was used to show that alcohol was in fact the cause of her impairment and that she was impaired.
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
Atkins & Craven, by Lee Atkins and Susan S. Craven, for
defendant appellant.
McCULLOUGH, Judge.
On 6 May 2002, defendant was present in Henderson County
Criminal District Court for her trial on a driving while impaired
charge. The court bailiff was informed by the clerk that defendant
had an odor of alcohol about her. The bailiff walked by defendantwhile she was standing in the courtroom and smelled the odor of
alcohol. The bailiff was within two feet of defendant, but did not
speak to her. Defendant was unstable on her feet when trying to
stand up straight, and was weaving back and forth. The bailiff
then notified the Assistant District Attorney, and the Henderson
County District Court Judge, the Honorable Randy Pool.
After receiving the information as to defendant's supposed
condition, the judge called defendant around to make an inquiry of
her. He asked defendant if she had been drinking, which she first
denied. The judge informed her that it had come to his attention
that she had the odor of alcohol about her, to which she admitted
having had a drink during lunch. After this admission, the judge
asked that she submit to an alco-sensor test. The judge later
testified that he observed defendant's face to be redder the day of
the summary contempt hearing in his courtroom, than it did at her
de novo hearing before the superior court. He further testified
that “I didn't think she was staggering, certainly not; but I
thought that she was a little uneasy maybe on her feet, or unsteady
maybe slightly on her feet.”
Officer John M. Johnson, a K-9 patrol officer with the
Henderson County Sheriff's Office, administered an alco-sensor test
using the sensor he kept in his car. Defendant registered
approximately .08 on the alco-sensor, and Officer Johnson reported
this to the judge.
The judge reported the results of the test to defendant,
telling her that she was legally impaired. Based upon this, and the
odor from her breath, he held her in contempt of court because shehad willfully reached the legal level of intoxication before coming
to court on her driving while impaired charge. The judge testified
that he did not believe he could try defendant in her condition as
her competency to stand trial was in question, and she would have
been of questionable assistance to her attorney. This caused the
judge to stop his proceedings and deal with the situation. He
testified his proceeding was delayed 15 minutes by defendant's
impairment. The judge further testified that he entered an oral
order holding defendant in contempt of court and that defendant was
represented by counsel. An order and commitment on the contempt
charge was signed that day, 6 May 2002, by the judge. The judge
ordered defendant to serve 24 hours in jail and to turn in her
driver's license and not operate a motor vehicle until disposition
of her charge of driving while impaired.
In between the contempt order of 6 May 2002, and the de novo
superior court hearing before Judge Guice, defendant told her
probation officer, Donna Cannon, that on 6 May 2002 defendant had
two glasses of wine before going to court. Defendant believed it
did not matter as she was not driving.
After the de novo superior court hearing on the contempt
charge, Judge Guice found that defendant was in direct criminal
contempt of the District Court of Henderson County on 6 May 2002.
Judge Guice adopted the same punishment as ordered by the district
court judge, ordering defendant be discharged from any further
obligation to the court.
On appeal, defendant raises six issues alleging reversible
error: (I) that the district court and superior court did notsufficiently find that the facts upon which the judgment was based
were established beyond a reasonable doubt; (II) & (III) that the
trial court improperly admitted the evidence of the alco-sensor
test results; (IV) & (V) that the trial court's findings of fact do
not sufficiently show that defendant was in contempt; and (VI)
that defendant was unlawfully prosecuted for public intoxication
without any showing that defendant was disruptive. Because we find
that it was reversible error for the trial court not to indicate
the standard of proof used in its de novo order, this opinion does
not reach the other issues on appeal.
therefore required:
[T]he statute (N.C. Gen. Stat[]. § 5A-14(b))
clearly requires that the standard should be
“beyond a reasonable doubt” and we find
implicit in the statute the requirement that
the judicial official's findings should
indicate that that standard was applied to his
findings of fact.
State v. Verbal, 41 N.C. App. 306, 307, 254 S.E.2d 794, 795 (1979)
(emphasis added). We hold the same is required in an order issued
from a plenary hearing, as the import and consequences of the two
hearings is substantially equivalent.
In Verbal, the defendant, an attorney, was cited by the trial
court for direct contempt and sentenced after a summary proceedingto imprisonment for being 18 minutes late in returning to court
after a lunch recess while a trial in which defendant was appearing
was in progress. We reversed the superior court's finding of
contempt during a summary proceeding when the trial court failed to
allow the defendant an opportunity to be heard, nor did the court
indicate what standard was applied in the court's contempt order.
Id. We held these violations of the statute to make the lower
court's order of contempt “fatally deficient” and reversed. Id.
(See footnote 1)
In the present case, neither the district court's findings in
the summary proceeding, nor the superior court's findings in their
de novo plenary proceeding, specifically indicate that the “beyond
a reasonable doubt” standard of proof required by N.C. Gen. Stat.
§ 5A-14(b) (for summary proceedings) or N.C. Gen. Stat. § 5A-15(f)
(for plenary proceedings) was actually applied. The State argues
that the record does indicate, albeit indirectly, that the proper
standard was used. Before making his findings of fact and
conclusions of law from the de novo hearing, the superior court
judge said that he “want[ed] to look at 5A-11 and 5A-14." The
district attorney replied, “I have that, Judge. I've got it open
to 5A-11.” However, in his order, the trial judge cites only to N.C. Gen. Stat. § 5A-11, stating “that under [N.C. Gen. Stat.] §
5A-11, Criminal Contempt, that Criminal Contempt (a)(1), the
conduct of the defendant was conduct which did interrupt[.]” The
record does not indicate that he looked at N.C. Gen. Stat. § 5A-
15(f) for the standard of proof required in plenary proceedings.
The only indication that the proper standard of review was applied
was that he asked to review the statute before making his findings
and that at the beginning of his findings, the boilerplate language
of the order states “after consideration of the applicable law.”
We do not believe this sufficient to meet the requirement of Verbal
that the “findings should indicate that that standard was
applied[.]” Verbal, 41 N.C. App. at 307, 254 S.E.2d at 795
(emphasis added). Here, at best, the transcript indicates the judge
may or may not have applied the proper standard, and there is no
indication of the standard applied by the district court.
The State argues that, assuming we find the order did not
comply with the principles of Verbal, the error was harmless and
there is no reasonable possibility that a different result would
have been reached. See N.C. Gen. Stat. § 15A-1443(a) (2003).
However, as guided by Verbal's mandate concerning summary contempt
proceedings, we hold that a superior court order from a plenary
proceeding of contempt must also indicate that the reasonable doubt
standard of proof was applied. Failure to make such an indication
is fatally deficient, unless the proceeding is of a limited
instance where there were no factual determinations for the court
to make. See In Re Owens, 128 N.C. App. 577, 582, 496 S.E.2d 592,
595 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605 (1999) (Though thetrial court failed to make a finding of the standard of proof
applied, contempt was upheld of a witness for refusing to answer a
question directed.).
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