STATE OF NORTH CAROLINA
v. New Hanover County
No. 03 CRS 52703
WILLIAM JEFFERY POLLEY
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).
*** Converted from WordPerfect ***