An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-557


Filed: 17 January 2006


         v.                             New Hanover County
                                     No. 03 CRS 52703
WILLIAM JEFFERY POLLEY                    

    Appeal by defendant from judgment entered 2 February 2005 by Judge Benjamin G. Alford in New Hanover 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.

    Michelle FormyDuval Lynch for defendant appellant.

    McCULLOUGH, Judge.

    On 23 February 2003, defendant William Jeffery Polley was cited for driving while impaired pursuant to N.C. Gen. Stat. § 20- 138.1 (2003). The case was tried at the 31 January 2005 Criminal Session of New Hanover County Superior Court.     
    The evidence presented at trial tended to show the following: On 23 February 2003, Officer Franklin Kienast of the Wilmington Police Department was dispatched to a motor vehicle wreck at the McDonald's Restaurant on Carolina Beach Road. When he arrived, he observed defendant sitting behind the wheel of a green 1993 Infinity automobile with the keys in the ignition. Officer Kienast asked defendant to step out of the car and to show him his license and registration. When he did so, he noticed that defendant wasoff balance and shuffled when he walked. He noticed a moderate odor of alcohol coming from defendant, and defendant's speech was slurred.
    Defendant told Officer Kienast that he was in his vehicle, in the drive-through lane at the restaurant, when the vehicle in front of him backed up and hit him. Officer Kienast testified that damage on defendant's car matched up with the trailer hitch from another vehicle. Officer Kienast believed he had reasonable suspicion that defendant was driving impaired, so he asked defendant to perform several field sobriety tests. Defendant did properly complete a finger dexterity test, and refused to take a stand and balance test, stating that he had a recent operation and could not do it. Defendant then “inadequately performed” a nine-step walk and turn. Accordingly, Officer Kienast determined that defendant had consumed enough of an impairing substance to impair his mental and physical abilities and placed him under arrest for driving while impaired. Defendant was transferred to the law enforcement center where he refused to submit to chemical analysis of his breath. Officer Kienast testified that defendant told him he had been drinking, but he could not recall what defendant told him he had been drinking.
    Defendant was convicted of impaired driving and sentenced to six months in prison. Defendant's sentence was suspended and he was placed on supervised probation for thirty-six months. Defendant appeals.
    Defendant's sole argument on appeal is that there was insufficient evidence to sustain his conviction for impaireddriving. Defendant contends that there was no evidence that he drove or operated the vehicle, or whether he had consumed alcohol before or after he allegedly drove the vehicle.
    After careful review of the record, briefs and contentions of the parties, we find no error. To survive a motion to dismiss, the trial court must determine that the State presented substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
    Pursuant to N.C. Gen. Stat. § 20-138.1(a) (2003):
        A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

                (1)    While under the influence of an impairing substance; or

                (2)    After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.

The State may establish that defendant was driving the vehicle through circumstantial evidence. See State v. Riddle, 56 N.C. App.701, 704, 289 S.E.2d 598, 599 (1982).
    Here, when Officer Kienast arrived at the scene of the accident, defendant's car was sitting in a drive-through. A jury could properly infer that to be in the drive-through, the car must have been driven there. Defendant was sitting behind the driver's seat with the keys in the ignition. He admitted that the car belonged to him. Additionally, there was no evidence to suggest that defendant was not driving. No one else was in the car, and there was no evidence that anyone other than defendant had been in the vehicle. Thus, based on this evidence, a jury could properly infer that defendant had driven the vehicle to the drive-through.
    We further conclude that there was sufficient evidence to support the jury's finding that defendant had driven the vehicle after having consumed a sufficient amount of alcohol to be impaired. The State presented evidence that: (1) defendant smelled of alcohol; (2) defendant was unable to pass several field sobriety tests; and (3) most significantly, he refused to submit to an intoxilyzer test. “A defendant's refusal of this test is admissible as substantive evidence of a defendant's guilt.” State v. Allen, 164 N.C. App. 665, 668, 596 S.E.2d 261, 263 (2004); State v. Pyatt, 125 N.C. App. 147, 150-51, 479 S.E.2d 218, 220 (1997)). Additionally, there was no evidence that defendant consumed alcohol after the accident occurred and after he had stopped driving the vehicle. Thus, a jury could properly conclude that defendant consumed alcohol prior to driving the vehicle, and operated the vehicle while impaired. Accordingly, we find no error.    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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