An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1706


Filed: 18 October 2005


v .                         Forsyth County
                            No. 03 CRS 59629

    Appeal by defendant from judgment entered 25 August 2004 by Judge W. Douglas Albright in Forsyth County Superior Court. Heard in the Court of Appeals 24 August 2005.

    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).
    Judges HUNTER and TYSON concur.
    Report per Rule 30(e).

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