An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-669


Filed: 1 June 2004


         v.                        Mecklenburg County
                                No. 01 CRS 118094


    Appeal by defendant from judgment entered 2 August 2002 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 May 2004.

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

    James L. Goldsmith, Jr., for defendant-appellant.

    ELMORE, Judge.

    On 28 September 2000, defendant was arrested for driving while impaired after his car was stopped by police while driving in the wrong direction on I-277 in Charlotte, North Carolina. Following his arrest, defendant was taken to the Mecklenburg County Sheriff's Department for processing and administration of an intoxilyzer test. At 4:51 a.m., defendant called his wife and asked her to come to the jail to witness the test. At 5:30 a.m., the test was administered. The reported concentration of alcohol was 0.11. Shortly after defendant took the test, his wife arrived at the jail and asked to see him. However, her requests were ignored. Defendant's requests to see his wife were likewise ignored. Defendant was released on bond at approximately 11:04 a.m.
    Prior to trial, defendant moved to dismiss the charge of impaired driving pursuant to State v. Knoll; State v. Warren; State v. Hicks, 322 N.C. 535, 369 S.E.2d 558 (1988). Defendant argued that the lost opportunity to access counsel and witnesses caused him irreparable prejudice to his case. The trial court found that defendant was “denied access to his wife and that this denial came at a critical juncture when defendant could have gathered evidence on his behalf by having his wife observe him and form opinions as to his sobriety following his arrest.” However, the Court found that defendant had failed to show any prejudice because he had “failed to show that his wife's testimony would have been helpful or significant to his defense.” Nevertheless, to eliminate any potential prejudice to the defendant, the trial court barred the State from “presenting any evidence to the jury regarding the arresting officers' (or any other witnesses') observations and opinions as to the Defendant's sobriety . . ., including the results of any field sobriety tests performed prior to the Defendant's arrest.” Defendant appeals.
    After careful review of the record, briefs, and contentions of the parties, we affirm. General Statute § 20-138.1(a) states that:
        A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

        (1) While under the influence of an impairing substance; or

        (2) After having consumed sufficient alcohol that he has, at any relevant time after thedriving, an alcohol concentration of 0.08 or more.

N.C. Gen. Stat. § 20-138.1(a)(2003).

Here, defendant claims that his case must be dismissed because he was denied his statutory right to access. See General Statute § 15A-501(5). However, in “cases arising under N.C.G.S. § 20-138.1(a)(2), prejudice will not be assumed to accompany a violation of defendant's statutory rights, but rather, defendant must make a showing that he was prejudiced in order to gain relief.” Knoll, 322 N.C. at 545, 369 S.E.2d at 564.
    We find State v. Rasmussen, 158 N.C. App. 544, 582 S.E.2d 44 (2003) controlling on the facts of this case. In Rasmussen, the defendant likewise argued that he was denied access to family. This Court, however, found no prejudice because the trial court had “suppressed the introduction of the field sobriety test results at trial. The trial court also dismissed the appreciable impairment theory of DWI and submitted the issue to the jury solely on the theory that defendant had an alcohol concentration of 0.08 or higher.” Id. at 554, 582 S.E.2d at 52. Accordingly, the Court in Rasmussen denied the defendant's request for a new trial.
    In the case sub judice, as in Rasmussen, the trial court precluded the State from introducing evidence of the field sobriety tests and limited defendant's trial to a determination of whether he had a blood alcohol concentration of 0.08 or more in violation of G.S. 20-138.1(a)(2). Thus, defendant can show no prejudice from the denial of access to his wife. Accordingly, based on Rasmussen, we affirm.    Affirmed.    
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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