1. Motor Vehicles--driving while impaired--voluntary dismissal
The trial court had jurisdiction to enter judgment against defendant for driving while
impaired even though the State entered a voluntary dismissal of the charge against defendant
after trial began, because: (1) defendant made no objection to entry of judgment at the sentencing
hearing and has thus waived her right to bring this matter forward on appeal; (2) the State filed a
dismissal pursuant to N.C.G.S. § 15A-932 when defendant failed to appear on 25 April 2002, the
second day of trial, and the State filed a reinstatement on 5 May 2003; and (3) the State followed
the proper statutory procedures with regard to the dismissal and reinstatement of defendant's
case.
2. Sentencing--aggravating factors--two prior DWI convictions
The trial court did not err by sentencing defendant for driving while impaired based upon
its finding of two grossly aggravating factors which were not submitted to the jury because: (1)
the case of Blakely v. Washington, ___ U.S. ___ (2004) specifically exempts aggravated
sentences based upon prior convictions from its requirements; (2) the court found as grossly
aggravating factors that defendant had two previous convictions for DWI committed within the
preceding seven years of the date of the current offense and that at the time of the current offense
she drove with a child under the age of sixteen years in the vehicle; (3) N.C.G.S. § 20-179(c)
mandates that the trial court must impose the Level One punishment under subsection (g) if the
judge determines that two or more grossly aggravating factors apply or if defendant has two
prior impaired driving convictions within the 7 years preceding the offense; and (4) the finding
of two prior convictions triggered the mandatory Level One sentence and the finding of another
grossly aggravating factor had no impact on defendant's sentence.
3. Motor Vehicles--driving while impaired-_motion to dismiss--sufficiency of evidence-
-diabetic attack
The trial court did not err by denying defendant's motion to dismiss the charge of driving
while impaired even though defendant contends there was insufficient evidence of impairment
when she was allegedly suffering from a diabetic attack, because: (1) a law enforcement officer
may express an opinion that a defendant is impaired so long as that opinion is based on
something other than an odor of alcohol, and an officer testified that based on the results of the
sobriety test he conducted that defendant was sloppy drunk and that there was not just a slight
impairment; and (2) there was no evidence to explain defendant's diabetic condition or to
explain how it might mimic alcohol impairment.
4. Constitutional Law--right to confront witnesses--defendant's voluntary and
unexplained absence from trial--waiver
The trial court did not err in a driving while impaired case by proceeding with trial in
defendant's absence, because a defendant's voluntary and unexplained absence from court
subsequent to commencement of trial constitutes a waiver of the right to confront witnesses.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
John T. Hall, for defendant.
HUDSON, Judge.
On 20 April 2001, defendant Lori Edwards Tedder was arrested
and charged with driving while impaired (“DWI”) and driving while
license revoked (“DWLR”). In District Court, defendant pled guilty
to DWLR and was found guilty of DWI. Defendant appealed the DWI
conviction to superior court for trial de novo. At the 24 April
2002 criminal session of superior court, the jury found defendant
guilty of DWI. Based on its findings of grossly aggravating
factors, the court sentenced her as a level I to an active term of
twenty-four months and ordered defendant to pay costs and attorney
fees. Defendant appeals. We find no error.
On 20 April 2001, Officer Boak of the Winston-Salem Police
Department came up behind defendant's vehicle and noticed her
driving in a jerky and inconsistent manner. After he observed her
cross the center line four times and run off onto the shoulder
twice in only a few miles, Officer Boak pulled defendant over.
Defendant immediately got out of the car and walked toward him.
Officer Boak smelled alcohol and noticed that defendant slurred her
speech. Defendant was unable to recite the alphabet and swayed
when standing. Officer Boak arrested defendant for DWI and took
her to the magistrate's office. While at the magistrate's office,
defendant became ill. Officer Boak took her to a hospital, where
he asked defendant to submit to a blood test. Defendant refused.
Defendant now argues that the court erred in entering judgment
against her. We disagree.
[1] Defendant first contends that the court was without
jurisdiction to enter judgment against her because the State
entered a voluntary dismissal of the charge against her after trialbegan. Defendant made no objection to entry of judgment at the
sentencing hearing and has thus waived her right to bring this
matter forward on appeal. N.C. R. App. P. 10(b)(1).
Even if this matter were properly before this Court, defendant
could not prevail.
Section 15A-932 provides for a dismissal 'with
leave' when the defendant fails to appear and
cannot be readily found. Under subsection (b)
of section 15A-932, this dismissal results in
removal of the case from the court's docket,
but the criminal proceeding under the
indictment is not terminated. All outstanding
process retains its validity and the
prosecutor may reinstate the proceedings by
filing written notice with the clerk without
the necessity of a new indictment.
State v. Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988). The
State filed a dismissal pursuant to N.C. Gen. Stat. § 15A-932 when
defendant failed to appear on 25 April 2002, the second day of
trial. The State filed a reinstatement on 5 May 2003. The State
having followed the proper statutory procedures with regard to the
dismissal and reinstatement, defendant's assignment of error is
without merit.
[2] Defendant also contends her sentencing was in error
because the court found two grossly aggravating factors which were
not submitted to the jury. Defendant argues that, under Blakely v.
Washington, a judge may not impose an aggravated sentence based on
facts not found by a jury beyond a reasonable doubt. __ U.S. __,
159 L. Ed. 2d 403 (2004). However, Blakely specifically exempts
aggravated sentences based on prior convictions from its
requirements. Id. at __, 159 L. Ed. 2d at 412 (citing Apprendi v.
New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435 (2000)) (“Other
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”) Here,the court found two grossly aggravating factors pursuant to N.C.
Gen. Stat. § 20-179(c): that defendant had two previous
convictions for DWI committed within the preceding seven years of
the date of the current offense, and that at the time of the
current offense, she drove with a child under the age of sixteen
years in the vehicle. Section 20-179(c) mandates that the judge
“must impose the Level One punishment under subsection (g) of this
section if the judge determines that two or more grossly
aggravating factors apply,” or if defendant has two prior impaired
driving convictions within the 7 years preceding the offense. N.C.
Gen. Stat. § 20-179(c) (2001) (emphasis added). The finding of two
prior convictions triggered the mandatory level one sentence; the
finding of another grossly aggravating factor had no impact on
defendant's sentence. Thus, Blakely relief is not required here,
and this assignment of error is overruled.
[3] Defendant next argues that the court erred in denying her
motion to dismiss the DWI charge for insufficiency of the evidence.
We find no error.
Defendant contends that the State failed to prove she was
impaired when the evidence suggests she was actually suffering from
a diabetic attack. The standard of review on a motion to dismiss
is well-established:
When ruling on a motion to dismiss, the trial
court must determine whether the prosecution
has presented substantial evidence of each
essential element of the crime. Substantial
evidence is that amount of relevant evidence
that a reasonable mind might accept as
adequate to support a conclusion. In making
its decision, the trial court must view the
evidence in the light most favorable to the
State.
State v. Smith, 357 N.C. 604, 615-16, 588 S.E.2d 453, 461 (2003),
cert. denied, __ U.S. __, 159 L.Ed.2d 819 (2004) (internal
citations and quotation marks omitted). “The essential elements ofDWI are: (1) Defendant was driving a vehicle; (2) upon any highway,
any street, or any public vehicular area within this State; (3)
while under the influence of an impairing substance.” State v.
Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002), aff'd,
357 N.C. 242, 580 S.E.2d 693 (2003) (per curiam) (citing N.C. Gen.
§ Stat. 20-138.1).
A law enforcement officer may express an opinion that a
defendant is impaired, so long as that opinion is based on
something more than an odor of alcohol. State v. Rich, 351 N.C.
386, 397-98, 527 S.E.2d 299, 305 (2000). Officer Boak testified
that, based on the results of the sobriety test he conducted,
defendant “was sloppy drunk” and that “there wasn't just a slight
impairment.” There was no evidence to explain defendant's diabetic
condition or to explain how it might mimic alcohol impairment.
Because the evidence presented, taken in the light most favorable
to the State, was substantial evidence of each essential element of
the crime, we find no error.
[4] Defendant also argues that it was error for the court to
proceed with the trial in her absence. Defendant contends the
court's action violated her constitutional right to confront
witnesses against her. However, “[a] defendant's voluntary and
unexplained absence from court subsequent to commencement of trial
constitutes . . . a waiver” of this right. State v. Richardson,
330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991). In such cases, it is
not error for the court to proceed with trial in the defendant's
absence. State v. Skipper, 146 N.C. App. 532, 535, 553 S.E.2d 690,
692 (2001).
No error.
Judges WYNN and STEELMAN concur.
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