Appeal by defendant from judgment entered 21 May 2003 by Judge
Richard L. Doughton in Cleveland County Superior Court. Heard in
the Court of Appeals 31 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Allen W. Boyer for the defendant.
TIMMONS-GOODSON, Judge.
Shawn Patrick James (“defendant”) appeals his conviction of
impaired driving. For the reasons stated herein, we dismiss the
appeal.
The State's evidence at trial tended to show that defendant
was stopped and charged by State Trooper Kenneth E. Moore (“Trooper
Moore”) after the trooper observed defendant driving on the fog
line, the solid white line on the far right side of the road. Upon
approaching the car, Trooper Moore observed that there was a
“strong odor of alcohol in the vehicle,” and that defendant had
“red, glassy eyes.” Trooper Moore arrested defendant and
transported him to the Law Enforcement Center where he submitted toan Intoxilyzer test and several performance tests. Defendant was
charged and found guilty of Driving While Impaired.
The trial court ordered defendant to serve a suspended
sentence of sixty days in the Department of Corrections, and placed
defendant on supervised probation for a period of eighteen months
under all regular conditions of probation as well as the following
special conditions: defendant was ordered to complete twenty-four
hours of community service within forty-five days; defendant was
ordered not to “use, possess, or control any illegal or controlled
substance unless it has been prescribed for the Defendant” during
the term of his probation; defendant was also ordered not to “use,
possess, or consume any alcohol during this period.” Defendant
requested a limited driving privilege during his probation. The
trial court denied defendant's request. It is from this conviction
that defendant appeals.
The issues presented on appeal are whether the trial court
erred by (I) denying defendant limited driving privileges; and (II)
imposing a condition of probation that defendant not use, possess
or consume alcoholic beverages. The dispositive issue is whether
the questions raised by defendant were properly preserved for
appellate review. We note, and defendant concedes, that defense
counsel failed to object to these matters at trial. We further
note that these issues are not reviewable for plain error, which is
reserved for appellate review of jury instructions and evidentiary
rulings.
See State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109(1998)
cert. denied,
Atkins v. North Carolina, 526 U.S. 1147, 143
L.Ed.2d 1036 (1999). Defendant argues that these issues are
preserved for appeal because the trial court violated a statutory
mandate. We disagree.
Defendant first argues that “the trial court . . . violated
the statutory mandate of N.C. G.S. Sec. 20-179[.3](a) and (b) by
refusing to allow the defendant to show just cause why he is
eligible for a limited driving privilege.” We disagree.
General Statutes sections 20-179.3(a) and (b) provide in
pertinent part as follows:
(a) Definition of Limited Driving Privilege. _
A limited driving privilege is a judgment
issued in the discretion of a court for good
cause shown authorizing a person with a
revoked driver's license to drive for
essential purposes related to any of the
following:
(1) His employment.
(2) The maintenance of his household.
(3) His education.
(4) His court-ordered treatment or
assessment.
(5) Community service ordered as a
condition of the person's probation.
(6) Emergency medical care.
(b) Eligibility. _
(1) A person convicted of the offense of
impaired driving under G.S. 20-138.1
is eligible for a limited driving
privilege if:
a. At the time of the offense he
held either a valid driver's
license or a license that hadbeen expired for less than one
year;
b. At the time of the offense he
had not within the preceding
seven years been convicted of
an offense involving impaired
driving;
c. Punishment Level Three, Four,
or Five was imposed for the
offense of impaired driving;
d. Subsequent to the offense he
has not been convicted of, or
had an unresolved charge lodged
against him for, an offense
involving impaired driving; and
e. The person has obtained and
filed with the court a
substance abuse assessment of
the type required by G.S.
20-17.6 for the restoration of
a drivers license.
(2003).
Our review of the record on appeal reveals that defendant was
not eligible for a limited driving privilege because at the time of
trial defendant had not “obtained and filed with the court a
substance abuse assessment of the type required by G.S. 20-17.6 for
the restoration of a drivers license” as required by § 20-
179.3(b)(1)e. Because defendant was not eligible for a limited
driving privilege, we conclude that he was not entitled to the
opportunity to show just cause. For this reason we hold that the
trial court did not err by denying defendant limited driving
privileges. Defendant also argues that the trial court violated a
statutory mandate by ordering defendant not to use, possess or
consume alcohol. We disagree.
General Statutes section 15A-1343(b1)(10) provides that “[i]n
addition to the regular conditions of probation specified in
subsection (b), the court may, as a condition of probation, require
that during the probation the defendant . . . [s]atisfy any other
conditions determined by the court to be reasonably related to his
rehabilitation.” (2003).
The trial court's order that defendant not use, possess or
consume alcohol is reasonably related to defendant's rehabilitation
in that it prohibits defendant from engaging in conduct that could
reasonably lead to further alcohol-related offenses. Accordingly,
we conclude that the trial court's order violates no statutory
mandate. Defendant's assertion that his issues were properly
preserved for appeal is overruled and the appeal is dismissed.
Dismissed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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