STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 02 CRS 238904
SHONNA NICOLE CARVER
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Carol Ann Bauer for defendant-appellant.
ELMORE, Judge.
Defendant appeals her conviction for driving while impaired
under N.C. Gen. Stat. § 20-138.1(a), arguing that the trial court
erred in denying her motion to dismiss the charge, absent
substantial evidence of impairment. For the reasons set forth
below, we find no error in the court's ruling and, therefore,
affirm the judgment.
The State's evidence tended to show that just after 12:00 p.m.
on 30 August 2002, Charlotte Mecklenburg Police Officer C.J. Blow
observed defendant driving at a high rate of speed past West
Mecklenburg High School on Tuckaseegee Road, a public street in
Charlotte, North Carolina. Using front stationary radar, Blowmeasured defendant's speed at fifty-six miles per hour, twenty-one
miles per hour over the posted speed limit. Blow activated his
blue lights and initiated a traffic stop. Upon engaging defendant
in conversation, Blow detected “a moderate odor of an alcoholic
beverage coming from her breath” and “noticed that her eyes were
red and very glassy.” Blow administered two field sobriety tests
to defendant. After performing satisfactorily the one leg stand
test, she was unable to perform the walk and turn test, failing on
three occasions to place her heel to her toe and stepping
completely off the line twice. Defendant claimed to have consumed
six beers and then acknowledged, “I had too much to drink last
night.” Based on his interaction with defendant, Blow formed an
opinion that she “had consumed some impairing substance so as to
appreciably impair . . . both her mental and physical faculties.”
Blow placed defendant under arrest and transported her to the
Intake Center at the Mecklenburg County jail. After being advised
of her rights, she submitted to a chemical breath analysis. Blow,
who possessed a valid permit from the North Carolina Department of
Public Health to perform chemical analyses using the Intoxilyzer
5000, administered the test upon defendant at 1:24 p.m. The
Intoxilyzer twice registered a concentration of .08 grams of
alcohol per 210 liters of defendant's breath.
Defendant testified that she went with some friends to a pub
after work on the night of 29 August 2002. She stayed at the pub
for three or four hours before obtaining a ride to a friend's house
at 2:00 a.m. Defendant woke up on 30 August 2002 at approximately10:00 a.m. and did not feel impaired. She was driving home from
her friend's house when she was stopped by Blow. Defendant could
not remember how much she drank at the pub but admitted telling
Officer Blow that she had six beers and “had too much to drink.”
She conceded she also “may have had a mixed drink or so[,]” in
addition to beer.
In reviewing the denial of a criminal defendant's motion to
dismiss, we must determine whether the evidence at trial, viewed in
the light most favorable to the State, was sufficient to allow a
reasonable juror to find defendant guilty of the essential elements
of the crime beyond a reasonable doubt. See State v. Earnhardt,
307 N.C. 62, 296 S.E.2d 649 (1982). A conviction under N.C. Gen.
Stat. § 20-138.1(a)(1) (2003) requires proof that “defendant had
ingested a sufficient quantity of an impairing substance to cause
his faculties to be appreciably impaired. This means a finding
that defendant's impairment could be recognized and estimated.”
State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891
(1997) (citations omitted). In the matter before us, Officer
Blow's observations, including defendant's act of driving more than
twenty miles over the speed limit, the odor of alcohol on her
breath, her red and “very glassy” eyes, her inability to
successfully perform the walk and turn test, and her admission to
consuming an excessive amount of alcohol “last night” led him to
conclude that defendant's physical and mental faculties were
“appreciably impaired” by an intoxicant. “'The opinion of a law
enforcement officer . . . has consistently been held sufficientevidence of impairment, provided that it is not solely based on the
odor of alcohol.'” State v. Taylor, __ N.C. __, __, 600 S.E.2d
483, 489 (2004) (quoting State v. Mark, 154 N.C. App. 341, 346, 571
S.E.2d 867, 871 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693
(2003)). Moreover, the result of an Intoxilyzer analysis performed
upon defendant's breath approximately one and one-half hours after
the traffic stop was .08, a concentration of alcohol which was
alone sufficient to establish defendant's violation of N.C. Gen.
Stat. § 20-138.1(a)(2). See State v. Shuping, 312 N.C. 421, 431,
323 S.E.2d 350, 356 (1984) (holding results of valid breath
analysis to be “sufficient to satisfy the State's burden of proof
as to this element of the offense of DWI”). Taken together, such
evidence supported the submission of the charge to the jury. See
State v. Catoe, 78 N.C. App. 167, 170, 336 S.E.2d 691, 693 (1985),
disc. review denied, 316 N.C. 380, 344 S.E.2d 1 (1986); State v.
O'Rourke 114 N.C. App. 435, 441, 442 S.E.2d 137, 140 (1994); State
v. Beasley, 104 N.C. App. 529, 533, 410 S.E.2d 236, 239 (1991).
The record on appeal contains additional assignments of error
not addressed by defendant in her brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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