STATE OF NORTH CAROLINA
v
.
Macon County
No.02 CRS 50051
RICHARD VINCENT WORLEY
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Charles L. Morgan, Jr., for defendant-appellant.
HUDSON, Judge.
On 25 November 2002, a jury convicted defendant of driving
while impaired (DWI), and the court imposed a 6 month sentence,
suspended for 24 months. Defendant appeals the conviction, and for
the reasons below, we find no error.
At approximately 9:46 p.m., 12 January 2002, Trooper K.D.
Hyde, of the North Carolina Highway Patrol, observed defendant's
vehicle traveling in excess of the speed limit. When the trooper
clocked defendant's vehicle at seventy-seven m.p.h. in a fifty-five
m.p.h. zone, he turned on his blue lights and siren and pursued
defendant. Trooper Hyde saw defendant weave between the shoulder
and the travel lane before he stopped. As Trooper Hyde exited his
vehicle, he saw defendant get out of his own vehicle and stumblealong holding the side of his truck. Trooper Hyde also observed
that defendant had red, glassy eyes, was very disoriented, and
smelled strongly of alcohol. Defendant performed poorly on two
psycho-physical tests administered by Trooper Hyde.
Based on his observations, Trooper Hyde formed the opinion
that defendant was impaired and placed him under arrest for DWI.
He took defendant to the Macon County Jail, and read him his
rights, whereupon defendant blew a .14 on the Intoxylizer.
Defendant appeared before a magistrate, who ordered that defendant
be released to a sober adult or at daylight. Defendant telephoned
his mother, who picked him up the next morning.
Before the trial, defendant issued a subpoena duces tecum for
production of the repair records of, and raw data downloaded from,
the Intoxilyzer unit used here. In response, the State filed a
motion to quash. Defendant then filed a “Motion to Continue and
Compel Timely Production of Data”, and later, a “Motion for
Independent Testing”, and a motion to dismiss. On 19 November
2002, the trial court held an evidentiary hearing, at the
conclusion of which it granted the State's motion to quash and
denied all of defendant's motions.
Defendant argues that the trial court erred in denying his
motion to compel. He asserts that the information he sought in the
subpoena duces tecum would have allowed him to present an
affirmative defense, and the denial of that information violated
his due process rights. Defendant concedes that he was not
entitled to this information in advance under the discoverystatute, N.C.G.S. § 15A-901 (2003). We need not decide whether
defendant was entitled to the information he sought through the
subpoena duces tecum, as we conclude that any possible error was
harmless beyond a reasonable doubt.
This Court has repeatedly held that the proper standard for
reviewing a court's refusal to grant a defendant's request for
information is whether such denial, if error, was harmless beyond
a reasonable doubt. State v. Cunningham, 108 N.C. App. 185, 197,
423 S.E.2d 802, 809 (1992); State v. McKeithan, 140 N.C. App 422,
436, 537 S.E.2d 526, 535 (2000). Here, as in Cunningham and
McKeithan, the evidence against defendant is overwhelming.
Defendant admitted that he had consumed four drinks, as well as an
entire bottle of cough syrup which contained alcohol. Furthermore,
the arresting officer observed defendant's car weaving, and
defendant stumbling as he exited his vehicle. The arresting
officer testified:
I observed red glassy eyes . . . [H]e was very unsteady
on his feet . . . I asked Mr. Worley why he was traveling
so fast . . . He just continued to stare at me. He was
very disoriented. I had to ask Mr. Worley that question
about 3 times before I finally got an answer . . . I
asked Mr. Worley for his driver's license. At that time,
he still seemed very disoriented. He took his wallet out
of his pocket. He handed me a Sams Card . . . I then
instructed Mr. Worley that it was his Sams Card and not
his driver's license. I handed it back to Mr. Worley for
him to observe and look at. He then was still very
disoriented. He looked at it very hard, handed it back
to me and said, “No sir, this is my driver's license.”
Defendant then failed two field sobriety tests. Given this
overwhelming evidence of defendant's intoxication, we conclude that
there is no reasonable possibility that the jury would haveconcluded otherwise. Thus, any error in denying defendant's
request for the Intoxylizer and its data was harmless beyond a
reasonable doubt. We overrule this assignment of error.
Defendant also assigns error to the court's denial of
defendant's motion to dismiss. He contends that the magistrate
violated N.C.G.S. § 15A-534.2 (2003) when he ordered that defendant
be released “to sober adult or daylight.” He argues that no part
of G.S. § 15A-534.2 allows detention of an impaired driver “until
daylight.” Although the statute does not explicitly authorize
holding an impaired driver “until daylight,” it does specifically
allow holding an impaired driver until:
(1) The defendant's physical and mental
faculties are no longer impaired to the
extent that he presents a danger of physical
injury to himself or others or of damage to
property if he is released; or
(2) A sober, responsible adult is willing and
able to assume responsibility for the
defendant until his physical and mental
faculties are no longer impaired.
Further, G.S. § 15A-534.2 (c) provides that “[t]he defendant may be
denied pretrial release under this section for a period no longer
than 24 hours.” Defendant contends that after he spoke with his
mother, at approximately 11:00 p.m, she called the jail and was
told she would have to wait until morning. The State challenges
this account and asserts that defendant's mother was not delayed
and merely chose to pick him up in the morning. The trial court
found as fact that “Defendant's mother picked the Defendant up in
the morning and was not delayed nor inhibited from coming andpicking up the Defendant sooner.” Defendant has not challenged
this finding of fact and thus, it is conclusive on appeal.
Further, the record shows that defendant arrived at the detention
facility at 12:33 a.m. and was released at 8:00 a.m. _ he was in
custody far less than twenty-four hours. As the magistrate's order
was within the scope of G.S. § 15A-534.2, we conclude that the
defendant has failed to show that any official detained him in
violation of the statute.
The State also asserts that defendant has failed to show any
prejudice. As we have concluded that defendant has not shown a
violation of the statute, we need not address the question of
prejudice.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***