Appeal by defendant from judgment entered 16 December 2004 by
Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court.
Heard in the Court of Appeals 6 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Kevin P. Bradley for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged by citation with driving while impaired
and with driving without liability insurance. Defendant was found
guilty of driving while impaired. The trial court dismissed the
charge of driving without liability insurance at the close of the
State's evidence and imposed an active sentence of six months
The State presented evidence tending to show that on 10 May
2004, Officer Randy Len Bullins of the Eden Police Department
stopped a van being operated by defendant. The officer observed a
strong odor of alcohol on defendant's breath. The officer asked
defendant to get out of the van. As the two conversed, defendant
could not be still as he constantly shifted his weight from one legto another and moved his arms about his sides. The officer
observed that defendant's clothes were disorderly and soiled, his
pants were unzipped, and his speech was slurred and mumbled. The
officer asked defendant to submit to field sobriety tests.
Officer Bullins arrested defendant for driving while impaired
and transported him to the police station for the purpose of
testing defendant's breath on the Intoxilyzer device. The officer
read defendant his rights. Defendant refused to sign the form.
Defendant made a telephone call to an attorney but nobody answered.
After waiting fifteen minutes, Officer Bullins asked defendant to
submit a sample of breath. Defendant refused three times. Officer
Bullins wrote on the ticket that defendant refused.
not present any evidence.
By his first
two arguments defendant contends (1) the trial
court committed plain error by admitting evidence regarding his
refusal to submit to the Intoxilyzer test, and (2) his counsel
rendered ineffective assistance by not objecting or moving to
strike the evidence. He argues the evidence should have been
stricken because thirty minutes did not elapse between the time
defendant was advised of his rights and the time he was recorded as
having refused to submit to the test.
The pertinent statute provides:
Except as provided in this subsection or
subsection (b), before any type of chemical
analysis is administered the person charged
shall be taken before a chemical analystauthorized to administer a test of a person's
breath, who shall inform the person orally and
also give the person a notice in writing that:
(1) The person has a right to refuse to be
(2) Refusal to take any required test or tests
will result in an immediate revocation of the
person's driving privilege for at least 30
days and an additional 12-month revocation by
the Division of Motor Vehicles.
(3) The test results, or the fact of the
person's refusal, will be admissible in
evidence at trial on the offense charged.
(4) The person's driving privilege will be
revoked immediately for at least 30 days if:
a. The test reveals an alcohol
concentration of 0.08 or more;
b. The person was driving a
commercial motor vehicle and the
test reveals an alcohol
concentration of 0.04 or more; or
c. The person is under 21 years of
age and the test reveals any alcohol
(5) The person may choose a qualified person
to administer a chemical test or tests in
addition to any test administered at the
direction of the charging officer.
(6) The person has the right to call an
attorney and select a witness to view for him
or her the testing procedures, but the testing
may not be delayed for these purposes longer
than 30 minutes from the time when the person
is notified of his or her rights.
If the charging officer or an arresting officer is
authorized to administer a chemical analysis of a
person's breath, the charging officer or the arresting
officer may give the person charged the oral and written
notice of rights required by this subsection. This
authority applies regardless of the type of chemical
N.C. Gen. Stat. § 20-16.2(a) (2005). This Court has stated that
the thirty minute time period referenced in the statute is
available only when the accused intends to exercise his rights to
call an attorney or have a witness present. Rock v. Hiatt
N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991). The statute
provides for a delay not in excess of 30 minutes for defendant to
exercise his rights and a delay of less than 30 minutes is
permissible where, as here, the record is barren of any evidence to
support a contention, if made, that a lawyer or witness would have
arrived to witness the proceeding had the operator delayed the test
an additional 10 minutes. State v. Buckner
, 34 N.C. App. 447,
451, 238 S.E.2d 635, 638 (1977).
Absent from the present record is any evidence that an
attorney or other witness would be arriving. Defendant made a
single attempt to contact an attorney. When nobody answered the
telephone, defendant declined the officer's offer to dial the
number of another attorney or of a witness. Instead, defendant
affirmatively declared to the officer three times that he would not
submit to the test. Under these circumstances, the court properly
admitted the evidence.
To make a claim of ineffective assistance of counsel, a
defendant must prove that counsel's performance was deficient and
that his defense was prejudiced thereby. State v. Braswell
N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985). As the evidence was
admissible, defendant was not prejudiced by counsel's failure to
In his third argument, defendant contends the trial court
erred by admitting evidence that defendant was operating the
vehicle without insurance. He argues that this evidence was not
relevant. Defendant's argument disregards the fact that defendant
was being tried not only on a charge of driving while impaired but
also on a charge of not having insurance on the vehicle. Evidence
is relevant and admissible if it has any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2005).
Not only did this evidence tend to show that defendant was
operating an uninsured vehicle, it also showed
the chain of
circumstances leading to the stop of the vehicle and the charge of
driving while impaired.
Finally, defendant contends the trial court erred by finding
that the aggravating factors outweighed the mitigating factors. He
argues the weighing of aggravating factors should be done by a jury
instead of a judge. This contention is overruled as the North
Carolina Supreme Court recently declared in State v. Allen
N.C. 425, 439, 615 S.E.2d 256, 266 (2005) that the balancing of
aggravating and mitigating factors may still be done by a judge
without violating one's right to a trial by jury.
We hold defendant received a fair trial, free of prejudicial
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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