Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
1. Motor Vehicles_driving while impaired_public vehicular area_no private road signs
A road was open to vehicular traffic within the meaning of N.C.G.S. § 20-4.01(32)(c) and was a public vehicular area where defendant and an officer testified that they drove the road and that there were no gates or signs indicating that it was private. The trial court did not err by denying defendant's motion to dismiss a charge of driving while impaired.
2. Motor Vehicles_driving while impaired_public vehicular area_road within
A road on which a DWI defendant was stopped was within or leading to a subdivision (and so was a public vehicular area) where there were six homes on the street, with five or six different owners, each with a driveway leading off the road.
3. Criminal Law_discovery_DWI case
The trial court did not err by denying a DWI defendant's pretrial motion to compel discovery from the State of written protocols regarding Intoxylizer operation, calibration, and measures. No statutory right to discovery exists for criminal cases originating in district court and there is no constitutional right to discovery other than for exculpatory evidence.
Guy B. Oldaker, III, for defendant-appellant.
In February 2005, a jury convicted defendant of driving while
impaired (DWI). The court ordered defendant to perform 24 hours
of community service and to pay a $100 fine. Defendant appeals.
For the reasons discussed below, we conclude that there was no
The evidence tends to show the following facts. On 31 August2002, Deputy Greg Hemric of the Surry County Sheriff's Department responded to a call about suspicious activity at a local school. Upon investigation, he discovered some guns on the school property. Hemric and other officers who came to assist him also found an ATV on the property and had seen some ATV's leaving the property. At about 10:20 p.m., Hemric went to the intersection of Flippin Road and Timber Lane, about 200 yards from the school. He parked on Timber Lane, a dead-end dirt road with six homes on it, with driveways leading off of Timber Lane to each of the homes, which have different owners. After Hemric parked on Timber Lane, he intended to stop all vehicles traveling on Timber Lane to question the occupants about the guns found on the school property. At about 11:45 p.m., defendant left a house on Timber Lane and drove down Timber Lane to where Hemric had parked. Due to the way Hemric had parked, defendant had to stop. Hemric asked defendant for his driver's license and noticed that defendant smelled of alcohol and had glassy eyes and slurred speech. Believing that defendant was impaired, Hemric called the Highway Patrol for assistance. Approximately 20 minutes later, Trooper Brian Jones arrived. He noted that defendant smelled of alcohol, that he had red, glassy eyes, that his speech was slurred, and that he seemed a little unsteady on his feet. With defendant's permission, Jones performed a horizontal gaze nystagmus test and the results were consistent with a 0.10 blood alcohol concentration. Jones placed defendant under arrest and took him to the Sheriff's office and administered an Intoxylizer test at 1:23 p.m., which showed an alcoholconcentration of 0.09.
D efendant argues that the trial court erred in failing to grant its motion to dismiss for insufficiency of the evidence. He contends that the State failed to introduce sufficient evidence that Timber Lane is a public vehicular area (PVA). We disagree.
In reviewing the trial court's ruling on a motion to dismiss, we must evaluate the evidence in the light most favorable to the State. State v. Molloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). All contradictions must be resolved in favor of the State. Id. Ultimately, we must determine whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). If the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998).
Our DWI statute prohibits driving impaired upon any highway, any street, or any public vehicular area within this State. N.C. Gen. Stat. § 20-138.1 (a) (2001) (emphasis added). The relevant definition of PVA is: a road opened to vehicular traffic within or leading to a subdivision for use by subdivision residents, their guests, and members of the public, whether or not the subdivision roads have been offered for dedication to the public. N.C. Gen. Stat. § 20-4.01(32)(c) (2001). Defendant argues that although Timber Lane is opened to vehicular traffic, it is not a PVA becauseit is not within or leading to a subdivision, and is not opened to vehicular traffic for use by the public. Both Officer Hemric and defendant testified that they drove on Timber Lane and that there were no gates or signs indicating that it was a private road. Thus, viewing the evidence in the light most favorable to the State, we conclude that Timber Lane was opened to vehicular traffic within the meaning of the statute; we note that a PVA must only be opened to vehicular traffic, but not necessarily offered for dedication to the public. N.C. Gen. Stat. § 20-4.01(32)(c).
 We now turn to defendant's contention that Timber Lane is not within or leading to a subdivision. In State v. Turner, this Court rejected a similar argument, where the defendant contended that a privately-maintained road within a mobile home park was not a PVA. 117 N.C. App. 457, 458, 451 S.E.2d 19, 20 (1984). In interpreting N.C. Gen. Stat. § 20-4.01(32), the Court applied the Black's Law Dictionary definition of subdivision:
Division into smaller parts of the same thing or subject matter. The division of a lot, tract, or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development.
Judges LEVINSON and JACKSON concur.
*** Converted from WordPerfect ***