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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. CHRISTIAN LEE STRECKFUSS
Filed: 21 June 2005
1. Motor Vehicles--driving while impaired--motion to dismiss--sufficiency of evidence-
The trial court did not violate defendant's right against double jeopardy by denying his
motion to dismiss the charge of driving while impaired even though the State confiscated and
retained his South Dakota driver's license when defendant refused to take an Intoxilyzer test and
imposed a $50 fee, because: (1) contrary to defendant's argument, nothing in N.C.G.S. § 20-16.5
indicates that the purpose underlying the statute is different for out-of-state drivers than it is for
North Carolina drivers when the threat posed to the citizens of North Carolina by an impaired
driver driving on North Carolina highways is the same regardless of what state's license the
driver has; (2) it is clear from the plain language of N.C.G.S. § 20-16.5 that it applies equally to
a driver who has a North Carolina driver's license and to a driver who has a license from another
state; (3) defendant does not argue, and nothing in the record indicates, that defendant was
actually deprived of the ability to drive in the State of South Dakota for thirty days, and nothing
in the record suggests that defendant could not have applied for or obtained a duplicate license or
otherwise sought relief in South Dakota; (4) the State provides statutory remedies for a driver to
secure his revoked license, which mitigate any possible punitive effects of the State's
confiscation of a nonresident's license; and (5) the $50 fee is not a fine, but rather a minimal
administrative fee that covers the costs for the action.
2. Criminal Law--motion to dismiss--double jeopardy--time of motion--denial as
The trial court's error of dismissing as untimely defendant's motion to dismiss a driving
while impaired charge on the ground of double jeopardy did not prejudice defendant when the
trial court correctly ruled on the substantive issue of double jeopardy.
3. Criminal Law--prejudice analysis--no double jeopardy violation
The trial court did not err by applying a prejudice analysis in denying defendant's motion
to dismiss a driving while impaired charge on the ground of double jeopardy, because dismissal
was not mandatory when the trial court properly concluded that defendant was not placed in
prior jeopardy for the offense.
4. Evidence_-lay testimony--field sobriety tests
The trial court did not err in a driving while impaired case by allowing a deputy to testify
regarding the field sobriety tests over defendant's objection even though the State failed to
establish both that the deputy was qualified to properly administer or interpret the tests and that
the tests had been properly administered, because the testimony was relevant to the deputy's lay
testimony that defendant was impaired.
Appeal by defendant from judgment entered 30 September 2003
and order entered 30 October 2003 by Judge Wade Barber in Superior
Court, Wake County. Heard in the Court of Appeals 2 February 2005.
Attorney General Roy Cooper, by Assistant Attorney GeneralPatricia A. Duffy, for the State.
George B. Currin for defendant-appellant.
Deputy Joel B. Goodwin (Deputy Goodwin) of the Wake County
Sheriff's Office was on patrol on 15 March 2002
southbound on Capital Boulevard, at approximately 1:00 a.m., when
saw Christian Lee Streckfuss (defendant) turn onto northbound
Capital Boulevard. Deputy Goodwin made a u-turn and followed
defendant's vehicle, which was traveling approximately seventy-five
m.p.h. in a fifty-five m.p.h. zone. He also observed that
defendant was unable to maintain a steady, straight line in his
lane of traffic. Deputy Goodwin pulled defendant over to the side
of the road.
When Deputy Goodwin approached defendant's vehicle, defendant
rolled down his window and Deputy Goodwin smelled a "strong odor of
alcoholic beverage emanating from the vehicle." Defendant produced
a South Dakota driver's license and a North Carolina registration
for the rental vehicle defendant was driving. Defendant admitted
to having had "a couple of drinks."
Deputy Goodwin observed that
defendant's "eyes were kind of red and glassy and his speech was
slightly slurred." Deputy Goodwin administered field sobriety
tests to defendant. After defendant failed three attempts to stand
on one foot, Deputy Goodwin formed the opinion that defendant's
mental and physical capacities were impaired. Deputy Goodwin
Chemical Analyst Jackie Oliver (Oliver) read defendant his
rights prior to administering the Intoxilyzer test and gavedefendant an opportunity to call an attorney, which defendant
declined. Defendant refused to take the Intoxilyzer test. Oliver
noted that defendant's eyes were "red kind of glassy" and that
defendant smelled like alcohol.
Deputy Goodwin seized defendant's South Dakota driver's
license pursuant to N.C. Gen. Stat. § 20-16.5(b). Defendant's
license was held by the State of North Carolina for thirty days and
was not released until defendant paid the required $50.00 fee.
At a pre-trial hearing, defendant pled guilty to speeding, but
moved to dismiss the driving while impaired (DWI) charge on double
jeopardy grounds. In an order entered 30 October 2003, the trial
dismissed defendant's motion as being untimely filed.
However, the trial court also ruled on the merits of the motion,
concluding that the confiscation of defendant's South Dakota
license did not "place Defendant in prior jeopardy for the
At trial, defendant was convicted of driving while impaired.
He received a sixty-day suspended sentence and was ordered to pay
a fine of $713.00. Defendant appeals.
 Defendant first argues that the trial court erred in
denying his motion to dismiss the DWI charge against him.
Defendant argues that criminal prosecution and punishment of
defendant for driving while impaired were barred
State's confiscation and retention of his South Dakota driver's
license and imposition of a $50.00 fee constituted punishment for
double jeopardy purposes.
Defendant's license was seized pursuant to N.C. Gen. Stat. §20-16.5 (b) when he refused to submit to the chemical analysis of
an intoxilyzer test.
Defendant concedes that our Courts have
previously held that N.C.G.S. § 20-16.5 is remedial in nature, and
that it does not constitute punishment for double jeopardy
purposes. See State v. Evans, 145 N.C. App. 324, 334, 550 S.E.2d
853, 860 (2001); see also State v. Oliver, 343 N.C. 202, 209-10,
470 S.E.2d 16, 21 (1996). However, defendant argues that these
prior decisions are inapplicable to him because his license was an
out-of-state license. Defendant asserts that our Courts' decisions
that the statute's provisions do not constitute punishment for
double jeopardy purposes are premised on the recognition that the
civil revocation serves a lawful remedial purpose that outweighs
its punitive effects. See Evans, 145 N.C. App. at 334-35, 550
S.E.2d at 860. Defendant contends that because he was a
nonresident driver, the confiscation of his out-of-state license
punished him by depriving him of the ability to drive in the State
of South Dakota for thirty days, and thus the punitive effects of
the revocation outweigh the remedial purpose. We disagree.
In Evans, our Court thoroughly analyzed N.C.G.S. § 20-16.5 to
determine whether the statute, as amended in 1997, violated the
Double Jeopardy clause of the United States Constitution or the Law
of the Land clause of the North Carolina Constitution. Id. at 331-
34, 550 S.E.2d at 858-60. We noted that "because N.C.G.S. §
20-16.5, as enacted, reflects an intent by the legislature for the
revocation provision to be a remedial measure, only the clearest
proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty."
Evans, 145 N.C. App. at 332, 550 S.E.2d at 859 (internal quotes andcitations omitted). We reiterated that the statute has a
legitimate remedial purpose, which
is to remove from our highways
drivers who either cannot or will not operate a motor vehicle
safely and soberly" and "to prevent unsafe and unfit drivers from
operating vehicles and endangering the citizens of North Carolina."
Id. at 331-32, 550 S.E.2d at 859. Finally, we concluded that the
statute does not subject a person to double jeopardy because the
statute "is neither punitive in purpose nor effect[.]" Id. at 334,
550 S.E.2d at 860.
Contrary to defendant's argument, nothing in our analysis of
N.C.G.S. § 20-16.5 indicates that the purpose underlying the
statute is different for out-of-state drivers than it is for North
Carolina drivers. Certainly, the threat posed to the citizens of
North Carolina by an impaired driver driving on North Carolina
highways is the same regardless of what state's license the driver
has. Furthermore, it is clear from the plain language of N.C.G.S.
§ 20-16.5, and related statutes, that N.C.G.S. § 20-16.5 applies
equally to a driver who has a North Carolina driver's license and
to a driver who has a license from another state.
First, related statute N.C. Gen. Stat. § 20-22 provides that
driver's licenses of out-of-state drivers "shall be subject to
suspension or revocation by the Division [of Motor Vehicles] in
like manner and for like cause as a driver's license issued [in
North Carolina] may be suspended or revoked." N.C. Gen. Stat. §
20-22(a) (2003). Therefore, the revocation of a license pursuant
to N.C.G.S. § 20-16.5 for failure to submit to chemical analysis
applies to nonresident drivers.
Second, the plain language of N.C.G.S. § 20-16.5 demonstratesthat the General Assembly intended for the statute to apply equally
to drivers from other states, as well as to those from North
Carolina. See Electric Supply Co. v. Swain Electrical Co., 328
N.C. 651, 656, 403 S.E.2d 291, 294 (1991) ("Legislative purpose is
first ascertained from the plain words of the statute."). The
statute applies to
any person "who operates a motor vehicle upon
the highways of the State[,]" State v. Allen, 14 N.C. App. 485,
489, 188 S.E.2d 568, 571 (1972)
, and is charged with an implied
consent offense, such as impaired driving. N.C. Gen. Stat. § 20-
16.5(b)(1)-(3) (2003) (referring to N.C. Gen. Stat. § 20-16.2).
Such a person "is deemed to have given consent to a breathalyzer
test." Allen, 14 N.C. App. at 489, 188 S.E.2d at 571
. If the
illfully refuses to submit to the chemical analysis
the person's driver's license is subject to revocation for thirty
days, assuming the other
provisions of N.C.G.S. § 20-16.5(b) are
met. N.C.G.S. § 20-16.5(b).
Third, N.C.G.S. § 20-16.5 expressly applies to licenses issued
in states other than North Carolina. The statute defines
"Surrender of a Driver's License" as "[t]he act of turning over to
a court or a law-enforcement officer the person's most recent,
valid driver's license . . . issued by the Division [of Motor
Vehicles] or by a similar agency in another jurisdiction[.]" N.C.
Gen. Stat. § 20-16.5(a)(5) (2003) (emphasis added). Additionally,
when N.C. Gen. Stat. § 20-16.2 is read together with N.C.G.S. § 20-
16.5, it is clear that the immediate civil license revocation for
persons charged with implied-consent offenses in N.C.G.S. § 20-16.5
applies to persons with out-of-state licenses. N.C.G.S. § 20-16.2
includes a provision requiring the North Carolina Division of MotorVehicles to notify "the motor vehicle administrator of the state of
the person's residence and of any state in which the person has a
license" of the revocation when a nonresident's privilege to drive
in the State has been revoked. N.C. Gen. Stat. § 20-16.2(f)
(2003). Defendant's argument that the statute does not have a
remedial purpose as applied to drivers with out-of-state licenses
is without merit.
Similarly, we are not persuaded by defendant's contention that
the punitive effects of N.C.G.S. § 20-16.5, as applied to a
nonresident, outweigh the lawful remedial purpose discussed above.
Defendant asserts that N.C.G.S. § 20-16.5 serves only to punish him
by depriving him of the ability to drive in the State of South
Dakota for thirty days. Defendant's argument is centered on the
premise that the State of North Carolina does not have authority to
restrict or interfere with defendant's ability to drive in his home
state. See Hendrick v. Maryland, 235 U.S. 610, 622, 59 L. Ed. 385,
391 (1915) (stating that it is within the police power of a state
to "prescribe uniform regulations necessary for public safety and
order in respect to the operation upon its highways of all motor
vehicles[,]" including licensing their drivers). However, that the
State of North Carolina might have improperly seized defendant's
driver's license does not mean that the revocation amounts to
Defendant does not argue, and nothing in the record indicates,
that defendant was actually deprived of the ability to drive in the
State of South Dakota for thirty days. Neither is there evidence
in the record showing when or whether defendant returned to South
Dakota. Nor does defendant demonstrate that he was denied theprivilege of driving in South Dakota. "The license is merely
physical evidence of the existence of the privilege to drive in the
state wherein [the license] was issued." Opinion of Attorney
General Robert Morgan, 40 N.C. Op. Att. Gen. 420, 422 (1969).
Nothing in the record suggests that defendant could not have
applied for or obtained a duplicate license or otherwise sought
relief in South Dakota. Defendant was merely denied the physical
evidence of the privilege to drive in his home state, his driver's
license, which does not constitute punishment.
Additionally, the State provides statutory remedies for a
driver to secure his revoked license, which mitigate any possible
punitive effects of the State's confiscation of a nonresident's
driver's license. N.C.G.S. § 20-16.5(g) provides that a person may
contest the validity of a revocation in a hearing before a
magistrate or district court judge, either of whom may rescind the
revocation. N.C.G.S. § 20-16.5(g). The request for such a hearing
"may be made at the time of the person's initial appearance, or
within 10 days of the effective date of revocation" and "the
hearing must be held within three working days following the
request if the hearing is before a magistrate or within five
working days if the hearing is before a district court judge." Id.
In addition to contesting the validity of the revocation, defendant
could have sought a limited driving privilege under N.C.G.S. § 20-
Whether or not the State should have required defendant to
surrender his South Dakota driver's license, see Opinion of
Attorney General Robert Morgan, 40 N.C. Op. Att. Gen. at 422 ("To
require the surrender of a valid driver's license issued by anotherstate would be an empty gesture since the North Carolina court
cannot determine the status of a nonresident's privilege to drive
in his home state."), the State's seizure of defendant's South
Dakota license was not punishment. The only harm evident in the
record is that defendant had to pay $50.00 to restore his privilege
to drive in North Carolina after the thirty-day revocation period
expired. Defendant does not argue, and we do not see, how this fee
constituted punishment. The $50.00 charge is not a fine, but
rather a minimal administrative fee that covers the "costs for the
action[.]" N.C.G.S. § 20-16.5(j). Thus, defendant fails to offer
proof sufficient to "override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty." See
Evans, 145 N.C. App. at 332, 550 S.E.2d at 859. The trial court
correctly concluded that defendant was not placed in prior jeopardy
for driving while impaired, and we thereby affirm the trial court's
denial of defendant's motion to dismiss on double jeopardy grounds.
 Defendant next argues that the trial court erred in
dismissing defendant's motion to dismiss as being untimely filed.
We agree. A motion to dismiss on the grounds of double jeopardy
may be made at any time. N.C. Gen. Stat. § 15A-954(c) (2003).
However, the trial court correctly ruled on the substantive issue
of double jeopardy and its error in dismissing defendant's motion
to dismiss as being untimely did not prejudice defendant.
 Defendant's third assignment of error is that the trial
court erred in applying a prejudice analysis in denying defendant's
motion to dismiss for double jeopardy. Specifically, defendantargues that the trial court erred when it concluded that "[t]he
unlawful actions of the State in seizing the license was not such
a flagrant violation of Defendant's constitutional rights resulting
in such irreparable prejudice that there is no remedy but to
dismiss the prosecution." Defendant asserts that dismissal is
mandatory under N.C.G.S. § 15A-954 when the trial court concludes
that a defendant has already been placed in jeopardy for the same
offense, and thus engaging in a prejudice analysis was misplaced.
See N.C. Gen. Stat. § 15A-954(a)(5)(2003). However, as discussed
above, the trial court properly concluded that defendant was not
placed in prior jeopardy for the offense. Thus, dismissal was not
mandatory, and defendant's argument to the contrary is overruled.
 Finally, defendant assigns as error the trial court's
allowing Deputy Goodwin to testify regarding the field sobriety
tests over defendant's objection. Defendant argues that the trial
court erred in allowing
to testify about the field
sobriety tests when the State had failed to establish both that
Deputy Goodwin was qualified to properly administer or interpret
the field sobriety tests, and that the tests had been properly
administered. However, we conclude that there was no error in
admitting this evidence because it was relevant to Deputy Goodwin's
lay testimony that defendant was impaired.
Relevant evidence is admissible, except as specifically
provided by law. N.C. Gen. Stat. § 8C-1, Rule 402 (2003).
"Evidence is relevant if it has any logical tendency, however
slight, to prove a fact in issue. In criminal cases, every
circumstance that is calculated to throw any light upon thesupposed crime is admissible. The weight of such evidence is for
the jury." State v. Smith
, 357 N.C. 604, 613-14, 588 S.E.2d 453,
460 (2003) (internal quotes and citations omitted), cert. denied
___ U.S. ___, 159 L. Ed. 2d 819 (2004).
A trial court must
determine if the proposed evidence has "any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2003).
"[A] trial court's rulings on relevancy . . . are not discretionary
and therefore are not reviewed under the abuse of discretion
standard[.]" State v. Wallace
, 104 N.C. App. 498, 502, 410 S.E.2d
226, 228 (1991), disc. review denied
, 331 N.C. 290, 416 S.E.2d 398
(1992). Nevertheless, "such rulings are given great deference on
At trial, the trial court allowed defendant to conduct a voir
dire hearing outside the jury's presence to assess Deputy Goodwin's
training and qualifications in administering field sobriety tests.
Following the voir dire, the trial court concluded:
[Deputy Goodwin] cannot testify that he
administered standardized field sobriety
tests. The officer may testify what he asked
the defendant to do and what the defendant did
in response thereto. The defense is free to
cross-examine [Deputy Goodwin] at will with
regard to that testimony, and if the defense
chooses, may cross-examine him with regard to
the standardized test, so forth as you choose.
The trial court stated that Deputy Goodwin could not testify that
he believed defendant to be impaired because defendant failed the
tests; however, he could testify that he formed an opinion that
defendant was impaired when Deputy Goodwin asked defendant to stand
on one leg and defendant started to hop and then fell over. Inother words, Deputy Goodwin was permitted to testify as a lay
witness, rather than as an expert.
"[A] lay person may give his opinion as to whether a person is
intoxicated so long as that opinion is based on the witness's
personal observation." State v. Rich
, 351 N.C. 386, 398, 527
S.E.2d 299, 306 (2000) (citing State v. Lindley
, 286 N.C. 255, 258,
210 S.E.2d 207, 209 (1974)). In the present case, Deputy Goodwin
only testified that, based on his personal observations, he formed
an opinion that defendant was impaired. Evidence that defendant
was impaired is relevant to the issue of whether defendant was
driving while impaired. Therefore, the trial court did not err in
admitting Deputy Goodwin's testimony about defendant's field
Judges TYSON and GEER concur.
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