State v Callahan, (05-5) 09/06/2005

Appeal by defendant from judgment entered 21 June 2004 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 15 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State.

Brannon Strickland, PLLC, by Marlet M. Edwards, for defendant- appellant.

STEELMAN, Judge.

    A jury found defendant guilty of driving while license revoked. The trial court suspended a sentence of 120 days' imprisonment and placed defendant on supervised probation for twenty-four months. Defendant gave notice of appeal in open court.     The State's evidence tended to show that defendant's driver's license was revoked in 2002 upon his conviction for driving while impaired. See N.C. Gen. Stat. §§ 20-17(a)(2), 20-138.1 (2004). Pursuant to N.C. Gen. Stat. § 20-179(b) (2004), the Cleveland County District Court issued a limited driving privilege to defendant. Among the restrictions imposed by the limited driving privilege was a requirement that defendant “not consume alcoholwhile driving or drive at any time while he has remaining in his body any alcohol[.]” N.C. Gen. Stat. § 20-179.3(h) (2004).
    On the afternoon of 11 February 2003, State Highway Patrol Troopers Douglas Walker and Larry Helton established a driver's license checkpoint on Lavender Road, a public street or highway near Earl, North Carolina. At approximately 3:00 p.m., Walker observed defendant's vehicle traveling on Lavender Road in the direction of State Highway 198. As the vehicle approached the checkpoint, Walker saw its right-side tires leave the road and drop onto the shoulder “for a short period of time.” He gestured with his hand to stop defendant's vehicle. Defendant proceeded past Walker for approximately ten feet before coming to a stop. In speaking with defendant, Walker noticed “that his eyes were glassy” and detected a moderate odor of alcohol inside the vehicle. When asked for his driver's license, defendant produced his limited driving privilege. Based upon his observations, Walker administered an AlcoSensor test to defendant. Walker was certified by the State to administer the AlcoSensor and had calibrated the device on 10 February 2003. The test produced a reading of .05, revealing the presence of alcohol in defendant's body. Based on the result of the AlcoSensor, as well as his own independent determination that defendant “was slightly impaired by some alcoholic beverage[,]” Walker charged defendant with driving while license revoked.
    In his first argument, defendant claims the trial court erred by overruling his objection to the State's evidence of the resultsof the AlcoSensor test performed by Walker at the Lavender Road checkpoint. He cites this Court's holding in State v. Bartlett, 130 N.C. App. 79, 82, 502 S.E.2d 53, 55 (1998), that results of an AlcoSensor are inadmissible as substantive evidence at trial to establish a defendant's impairment by alcohol, under the provisions of N.C. Gen. Stat. § 20-16.3(d)(2004). We disagree.
    Although defendant correctly characterizes the holding in Bartlett, he fails to acknowledge a subsequent change in the applicable law. Following our 1998 decision in Bartlett, the North Carolina General Assembly enacted House Bill 1135, Part III, which was designated “LIMITED DRIVING PRIVILEGE ALCOSENSOR ADMISSIBILITY[,]” with the sub-heading: “Act to Implement the Recommendations of the Governor's DWI Task Force, 1999 N.C. Sess. Laws 406.” Effective 1 December 1999, the act amended the statute governing defendant's limited driving privilege, N.C. Gen. Stat. § 20-179, as follows:
        Section 6. G.S. 20-179.3(j) reads as rewritten:

        Effect of Violation of Restriction. -- A holder of a limited driving privilege who violates any of its restrictions commits the offense of driving while his license is revoked under G.S. 20-28(a) and is subject to punishment and license revocation as provided in that section.

        . . . .

        Notwithstanding any other provision of law, an alcohol screening test may be administered to a driver suspected of violating this section, and the results of an alcohol screening test or the driver's refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining ifalcohol was present in the driver's body. No alcohol screening tests are valid under this section unless the device used is one approved by the Commission for Health Services, and the screening test is conducted in accordance with the applicable regulations of the Commission as to the manner of its use.

1999 N.C. Sess. Laws 406, §§ 6, 19 (underlining in original). Inasmuch as the AlcoSensor is recognized as an approved alcohol screening test device pursuant to 15A N.C.A.C. 19B.0503(a)(1)   (See footnote 1) , State v. Ford, 164 N.C. App. 566, 571, 596 S.E.2d 846, 850 (2004), quoting Bartlett, 130 N.C. App. at 82, 502 S.E.2d at 55, the challenged evidence was admissible to show the presence of alcohol in defendant's system under N.C. Gen. Stat. § 20-179.3(j), notwithstanding the limitations on admissibility otherwise prescribed by N.C. Gen. Stat. § 20-16.3(d). This argument is without merit.
    In his second argument, defendant asserts that the State's evidence was insufficient to prove that he committed the offense of driving while license revoked by violating his limited driving privilege under N.C. Gen. Stat. § 20-179.3(j), because “[t]he only evidence of alcohol was the results of the AlcoSensor test.” We again disagree.
    As noted above, the result of defendant's AlcoSensor test was admissible for the purpose of “determining if alcohol was present in [his] body.” N.C. Gen. Stat. § 20-179.3(j). Viewed in the light most favorable to the State, see, e.g., State v. Davis, 325N.C. 693, 696, 386 S.E.2d 187, 189 (1989), the AlcoSensor reading of .05, along with Walker's observations at the checkpoint and his opinion -- formed independently of the AlcoSensor result -- that defendant “was slightly impaired by some alcoholic beverage[,]” were sufficient to show the presence of some alcohol in defendant's body. This argument is without merit.
    NO ERROR.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

Footnote: 1