STATE OF NORTH CAROLINA
v. Pitt County
No. 03 CRS 64331
ANTONIO HOWARD
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Adrian M. Lapas for defendant appellant.
McCULLOUGH, Judge.
On 14 November 2003, Antonio Howard (defendant) was arrested
and charged with driving while impaired, driving while license
revoked, and giving fictitious information to a police officer.
The Pitt County grand jury indicted defendant on a charge of
habitual driving while impaired, and a superceding indictment was
issued on 11 October 2004. Defendant stipulated to three prior
convictions of driving while impaired, and the jury found defendant
guilty of driving while impaired. The trial court sentenced
defendant to a term of twenty-one to twenty-six months'
imprisonment for habitual driving while impaired. From the trial
court's judgment, defendant appeals.
At trial, the State introduced evidence tending to show thefollowing: On 14 November 2003 at approximately 7:10 p.m., Officer
David Anderson observed a car traveling fifty-eight miles per hour
in a forty-five mile-per-hour zone. Officer Anderson began
pursuing the car. Before he activated any of his emergency
equipment, however, the car stopped in the middle of the street
approximately fifteen yards from an intersection with a green
traffic signal. The driver, whom Officer Anderson identified as
defendant, got out of the car and began walking toward the police
vehicle with his arms in the air and a puzzled look on his face.
Officer Anderson motioned for defendant to get back into his car
and pull over to the side of the road.
Defendant returned to his car, made a right turn onto a side
street and stopped. While doing so, defendant ran into the right
side curb hard enough to shake the entire car. When Officer
Anderson approached and asked if defendant had his license and
vehicle registration, defendant said no and asked the officer to
give him a break. Upon noticing a strong odor of alcohol coming
from defendant's person, Officer Anderson asked him to step back to
the patrol vehicle. Defendant stumbled and nearly fell as he was
walking back to the patrol vehicle. The weather conditions were
dry, and the roadway was straight and level.
Officer Anderson asked defendant what his name was, and
defendant replied “Tony Howell.” When asked to spell his name,
defendant responded “H-O-L-O-W-E-L-L.” Officer Anderson arrested
defendant for driving while license revoked and giving fictitious
information to a law enforcement officer. He testified thatdefendant's mental and physical faculties were appreciably
impaired, and he stated his opinion was based upon defendant's
“driving, his apparent confusion, his strong smell of alcohol
coming from his person, and the results of the alcosensor test.”
After defendant was transported to the intoxilyzer room of the
Pitt County Detention Center, Officer Robert Burns began
investigating the charge of driving while impaired. Officer Burns,
who was a certified chemical analyst, observed that defendant's
eyes were watery and pinkish-red in color, and he noticed a strong
odor of alcohol coming from defendant's mouth. Defendant failed
the first field sobriety test administered by Officer Burns because
he repeatedly did not wait for the demonstration phase of the test
to end before attempting the one leg stand. Defendant did not
count properly during the test, placed his foot down twice within
the five-count, and stopped the test before being told to do so.
During the sway test instructions, Officer Burns again had to
ask defendant to wait until the instructions were finished before
starting the test. Instead of standing with his arms by his sides
and tilting his head back with his eyes closed as instructed,
defendant kept his eyes open when he tilted his head back and
touched his right index finger to the tip of his nose. Officer
Burns noted that defendant also swayed about three inches from side
to side during the test.
Because defendant “was not following directions at all,”
Officer Burns formed the opinion that defendant's mental and/or
physical faculties were appreciably impaired as a result of alcoholconsumption. He then placed defendant under arrest for driving
while impaired. After explaining the intoxilyzer procedure and
informing defendant of his rights, Officer Burns asked defendant to
provide a breath sample. On four separate occasions, defendant
would only blow into the machine for two or three seconds and then
stop. Each time defendant stopped prematurely, Officer Burns
reminded him that he was to blow until told to stop. Prior to the
last two attempts, Officer Burns also warned defendant that failure
to follow the instructions would be marked as a refusal. After the
fourth inadequate attempt by defendant, Officer Burns marked
defendant as a refusal. Defendant refused to sign the test ticket
generated by the intoxilyzer, and he became combative when the two
officers began to handcuff his arms behind his back.
Out of the jury's presence, defendant admitted three prior
convictions for impaired driving. At the close of the State's
evidence, defendant made a motion to dismiss. The trial court
denied the motion, and defendant informed the trial court that he
would not be presenting evidence. After the charge conference and
closing arguments, the trial court gave its instructions to the
jury. The jury found defendant to be guilty of driving while
impaired, and the trial court sentenced defendant for habitual
impaired driving on the basis of the earlier stipulation of three
prior convictions for driving while impaired.
Defendant contends the trial court committed plain error by
allowing Officer Anderson's opinion testimony that defendant was
appreciably impaired. While defendant acknowledges his failure toobject to Officer Anderson's testimony, he argues the trial court's
admission of the testimony amounted to plain error because the
testimony incorporated the results of an alcosensor test.
Defendant's argument is not persuasive.
“In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion . . . .” N.C.R. App. P. 10(b)(1). Because defendant did
not object to Officer Anderson's reference in his testimony to the
results of the alcosensor test, he failed to preserve the question
for appellate review and must seek review pursuant to the “plain
error” rule.
“[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has '“'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'”' or where the error is such as to
'seriously affect the fairness, integrity, or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
findings that the defendant was guilty.'”
State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.),
cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
The admission of Officer Anderson's testimony that his opinion
was based in part upon the results of the alcosensor test was
error, for “the results of an alcohol screening test may not beadmitted” as substantive evidence other than to use negative or low
results “in determining whether a person's alleged impairment is
caused by an impairing substance other than alcohol.” N.C. Gen.
Stat. § 20-16.3(d) (2003); see State v. Bartlett, 130 N.C. App. 79,
82, 502 S.E.2d 53, 55 (1998). Upon review of the entire record,
however, it cannot be said that the trial court's error was a
fundamental or grave one or that it resulted in a miscarriage of
justice.
An intoxilyzer test is not required to establish a defendant's
faculties as being appreciably impaired under N.C. Gen. Stat. § 20-
138.1 (2003). An officer's opinion that a defendant is appreciably
impaired is competent testimony and admissible evidence when it is
based on the officer's personal observation of an odor of alcohol
and of faulty driving or other evidence of impairment. State v.
Rich, 351 N.C. 386, 398, 527 S.E.2d 299, 306 (2000). The refusal
to submit to an intoxilyzer test is also admissible as substantive
evidence of guilt on a charge of driving while impaired. N.C. Gen.
Stat. § 20-139.1(f) (2003); State v. Pyatt, 125 N.C. App. 147, 150,
479 S.E.2d 218, 220 (1997).
When Officer Anderson first observed defendant, he was
exceeding the speed limit by thirteen miles per hour. Although
Officer Anderson began pursuing defendant, he had not activated his
blue lights or siren when defendant stopped fifteen yards from an
intersection with a green traffic signal. On his own initiative,
defendant exited his vehicle and approached Officer Anderson with
his arms raised. When defendant parked on a side street asdirected, he hit the curb hard enough to shake his vehicle.
Officer Anderson noticed that defendant had a strong odor of
alcohol and that defendant stumbled and almost fell while walking
on dry, level ground to the patrol vehicle. Defendant provided
Officer Anderson with one name, then spelled a different name
immediately afterwards.
Officer Burns also opined that defendant was appreciably
impaired based upon defendant's red, watery, pinkish-colored eyes,
the strong odor of alcohol coming from his person, and his poor
performance on the field sobriety tests. On four separate
occasions defendant failed to comply with requests to provide an
adequate breath sample for the intoxilyzer. Given the overwhelming
evidence presented of defendant's impairment by alcohol, the trial
court's failure to exclude ex mero motu Officer Anderson's
statement that his opinion was based in part on “the results of the
alcosensor test” does not rise to the level of plain error.
Defendant received a fair trial, free from prejudicial error.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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