STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 03 CRS 59629
FRED BENNETT TUTTLE,
Defendant.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Don Willey, for the defendant-appellant.
STEELMAN, Judge.
Defendant was pulled over by Officer Timothy Howes of the
Winston-Salem Police Department on 30 August 2003 because the
headlights on his truck were on bright, and his license plate had
expired. Once Officer Howes stopped defendant, he observed that
defendant had difficulty walking, his speech was slurred, and he
had a strong odor of alcohol on his breath. Officer Howes
administered a field sobriety test, which defendant failed.
Officer Howes also administered an alco-sensor alcohol screening
test, which indicated that defendant was intoxicated. Officer
Howes placed defendant under arrest, and drove him to the jail.
Once at the jail, Officer Howes read defendant his implied consent
rights, including his right to have a witness present. Defendantcalled his daughter, but then indicated to Officer Howes that she
would not show up. Officer Howes then asked defendant if he would
submit to testing by the Intoxilyzer 5000. Defendant refused.
Defendant was convicted by a jury of one count of driving
while impaired. Defendant stipulated that there were three prior
DWI convictions satisfying the necessary elements of the felony of
habitual impaired driving. The trial court sentenced defendant to
18 to 22 months imprisonment. From this judgment, defendant
appeals.
In defendant's first argument, he contends that the trial
court erred in allowing Officer Howes to testify at trial that he
relied on alco-sensor results in forming his opinion that defendant
was substantially impaired. We disagree.
At trial, Officer Howes, over objection, was allowed to
testify that he administered an alco-sensor test to defendant, and
that he partially relied upon the results of this test in forming
his opinion that defendant was impaired. The precise results of
the alco-sensor test were not admitted at trial. Use of the
results of an alco-sensor test is governed by N.C. Gen. Stat. §
20-16.3(d), which states:
Use of Screening Test Results or Refusal by
Officer. -- The results of an alcohol
screening test or a driver's refusal to submit
may be used by a law-enforcement officer, a
court, or an administrative agency in
determining if there are reasonable grounds
for believing that the driver has committed an
implied-consent offense under G.S. 20-16.2.
Negative or low results on the alcohol
screening test may be used in factually
appropriate cases by the officer, a court, or
an administrative agency in determiningwhether a person's alleged impairment is
caused by an impairing substance other than
alcohol. Except as provided in this
subsection, the results of an alcohol
screening test may not be admitted in evidence
in any court or administrative proceeding.
In the instant case, the results of the alco-sensor test were not
admitted into evidence at trial. Officer Howes testified that an
also-sensor test had been administered to the defendant, and that
he considered the test along with numerous other factors in
reaching his conclusion that defendant was impaired. We hold that
this testimony did not violate N.C. Gen. Stat. § 20-16.3(d).
Even assuming arguendo that the testimony concerning the alco-
sensor test was improper, in light of the plenary additional
evidence of defendant's impairment, we hold any error was harmless.
See State v. Wike, 85 N.C. App. 516, 520, 355 S.E.2d 221, 224
(1987). Officer Howes testified at trial that after stopping
defendant, defendant exited his truck and used the side of it to
assist him in walking toward Officer Howes, and that he appeared to
be staggering. Officer Howes noticed a strong odor of alcohol on
defendant's breath when he approached him. Defendant's eyes were
red and glassy, and his speech was “slurred and mumbled, it was
confused and not understanding. He kept repeating himself . . . .”
Officer Howes observed an open container in defendant's truck,
which defendant identified as homemade grape wine. Defendant
admitted to having had two beers in addition to the homemade wine.
Officer Howes administered a field sobriety test, which defendant
failed. Defendant could not stand with his feet together, close
his eyes, and tilt his head backwards without falling forward. When defendant was asked to recite the alphabet from D to W, he
responded “V, G, S, W, V, G,” and then said he could not do the
test. Defendant refused to attempt the “walk and turn” portion of
the field sobriety test. Officer Howes testified that he observed
defendant for 30 to 45 minutes, and based upon his observations,
the field sobriety test, and the results of the alco-sensor test,
he formed the opinion that “defendant had consumed a sufficient
quantity of an impairing substance to appreciably impair his mental
and/or physical faculties.”
Office Howes arrested defendant and drove him to jail where he
attempted to administer the Intoxilyzer 5000 to defendant.
Defendant refused to take the test. Defendant's refusal was
admissible at trial, N.C. Gen. Stat. § 20-16.2, and the jury was
entitled to infer guilt based upon defendant's refusal. Wike, 85
N.C. App. at 520, 355 S.E.2d at 224. Officer Howes also testified
that he had observed defendant throughout the various court
proceedings, and that defendant was walking much better in court
than he had been the night of his arrest. This argument is without
merit.
In defendant's second argument, he contends that the trial
court erred in admitting into evidence the defendant's refusal to
take the Intoxilyzer 5000 test. We disagree.
Defendant argues that Officer Howes violated N.C. Gen. Stat.
§ 20-16.2(a)(6), and therefore it was improper for the trial court
to allow Officer Howes testimony at trial that defendant refused to
take the test. N.C. Gen. Stat. § 20-16.2(a)(6) states: The person has the right to call an attorney
and select a witness to view for him or her
the testing procedures, but the testing may
not be delayed for these purposes longer than
30 minutes from the time when the person is
notified of his or her rights.
Defendant was notified of his rights pursuant to N.C. Gen. Stat. §
20-16.2(a) at 9:10 p.m. on 30 August 2003. At approximately 9:13
defendant called his daughter. Defendant never indicated to
Officer Howes that he was calling his daughter to act as a witness
pursuant to N.C. Gen. Stat. § 20-16.2(a), and Officer Howes
testified that defendant never requested to have a witness present.
A few minutes after ending his call with his daughter, defendant
informed Officer Howes that his daughter would not be coming to the
station, and she in fact never did. Officer Howes asked defendant
if he was going to take the Intoxilyzer 5000 test at 9:31 p.m., 21
minutes after advising defendant of his rights under N.C. Gen.
Stat. § 20-16.2(a). Defendant informed Officer Howes at that time
that he would not submit to the test.
Violation of N.C. Gen. Stat. § 20-16.2(a)(6) only occurs when
the defendant has requested a witness be present for administration
of the test, and the test is then administered outside the presence
of the witness and before thirty minutes have passed since
defendant was advised of his N.C. Gen. Stat. § 20-16.2(a) rights.
Not only did defendant not request that a witness be present, he
informed Officer Howes that the only person he had contacted, his
daughter, would not be coming. Further, defendant explicitly
stated that he would not take the test. These facts firmly
establish that defendant never exercised his right to have awitness present pursuant to N.C. Gen. Stat. § 20-16.2(a). We hold
that N.C. Gen. Stat. § 20-16.2(a) was not violated, and therefore
defendant's refusal was properly admitted against him at trial.
N.C. Gen. Stat. § 20-139.1(f); State v. Gregory, 154 N.C. App. 718,
721, 572 S.E.2d 838, 842 (2002) (The refusal to submit to an
intoxilyzer test also is admissible as substantive evidence of
guilt on a DWI charge.). This argument is without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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