An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-310


Filed: 17 January 2006


         v.                             Pitt County
                                     No. 03 CRS 64331

    Appeal by defendant from judgment entered 14 October 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 9 January 2006.

    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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