Converted WP file 050748-1

Appeal by defendant from judgment entered 15 February 2005 by Judge William C. Griffin in Beaufort County Superior Court. Heard in the Court of Appeals January 16 2006.

Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.

Gaskins & Gaskins, P.A., by Herman E. Gaskins, Jr., for defendant appellant.

ELMORE, Judge.

    On 15 February 2005 a jury found Defendant William David Wancik (defendant) guilty of the offense of driving while impaired (DWI) in violation of N.C. Gen. Stat. § 20-138.1. On the same date, Judge William C. Griffin, Jr., the presiding Beaufort County Superior Court Judge, entered a judgment sentencing defendant to imprisonment for sixty days. This sentence was suspended upon the conditions that defendant perform 24 hours of community service, pay a fine in the sum of $100.00, and comply with other terms and conditions of probation. From the judgment entered, defendant appeals.
    The State's evidence at trial tended to show the following: On 23 May 2004 at approximately 5:00 or 5:30 a.m., Trooper Ernie Coleman (Trooper Coleman), a twenty-year veteran of the North Carolina State Highway Patrol, responded to a dispatch he received to investigate a motor vehicle accident on NC Highway 33, approximately 10.5 miles east of Chocowinity. When he arrived on the scene around 6:30 or 7:00 a.m., he saw defendant and one other person on the right shoulder of the road. Trooper Coleman also observed an orange, older model Chevrolet Camero off the road in the woods, which defendant said belonged to him.
    At Trooper Coleman's request, defendant sat in the trooper's patrol car while he completed the accident report. Trooper Coleman observed that defendant was soiled, his clothes were dirty, he had scratches on his arms from the briars in the woods, and his eyes were glassy. Trooper Coleman also noticed a strong odor of alcohol in the patrol car as defendant spoke to him. Indeed, defendant admitted he had been drinking. Thus, Trooper Coleman administered a portable alco-sensor alcohol screening test and discussed the test with defendant.
    Defendant informed Trooper Coleman he was traveling from Greenville and as he rounded a curve in the road, a deer ran in front of his car. When defendant swerved to miss the deer, the car ran off the road into the woods and crashed. Defendant said he spent some time searching for his cell phone, but failed to find it. As such, defendant walked to a nearby house to place a 911 call to report the crash. Based upon the information provided by defendant and the information Trooper Coleman received from theBeaufort County Communications 911 Center, he determined the accident occurred between 4:15 and 5:15 a.m. on 23 May 2004.
    Based on the strong odor of alcohol, defendant's glassy eyes, his conversation with defendant, and the alco-sensor test, Trooper Coleman determined defendant had too much to drink. Trooper Coleman arrested defendant for DWI and transported defendant to the intoxilyzer room in the magistrate's office in Washington, North Carolina to process the DWI. Trooper Coleman held a permit issued by the Department of Health and Human Services authorizing him to administer breath tests to determine alcohol concentration. Trooper Coleman informed defendant of his intoxilyzer rights and gave him a copy of these rights. He then administered a breath test using the Intoxilyzer 5000, a test which determines a person's actual blood alcohol concentration through breath samples. The lower of the two intoxilyzer test results was .08. This result was received and recorded on 23 May 2004 at 8:29 a.m. and the test results were given to defendant.
    Approximately thirty minutes later, Trooper Coleman advised defendant of his Miranda Rights. Defendant waived those rights and agreed to answer Trooper Coleman's questions. During this questioning, defendant informed Trooper Coleman that he began drinking whiskey bourbons the night before at approximately 10:30 p.m. in Greenville. Defendant estimated he consumed eight to ten glasses of bourbon and stopped drinking at approximately 1:45 a.m. After determining the length of time it would take to arrive at the accident scene from Greenville, defendant estimated he leftGreenville at approximately 3:30 or 4:00 a.m. The only unusual action that Trooper Coleman noticed about defendant was that he cried “a little bit” when he was informed he was under arrest and a few times later in the intoxilyzer room.
    Thereafter, defendant agreed to perform a psychophysical test consisting of the following four standard tests: a one-leg stand, walk and turn, nystagmus test, and finger-to-nose test. Trooper Coleman testified that defendant had some trouble performing the finger-to-nose test since his right index finger touched the side of his nose rather than its tip. Otherwise, defendant performed the tests as requested. Trooper Coleman testified he never changed his opinion that defendant was appreciably impaired during the two and one-half hours he spent with defendant.
    During direct examination, Trooper Coleman testified he had an opportunity to observe defendant and form an opinion as to whether defendant was appreciably impaired. When asked what his opinion was, he testified as follows:
        A.    It was my opinion at that time then that it was 7:15 a.m. We were carrying on this conversation from the odor of alcohol. His eyes were glassy, the conversation that was held from the time after the accident happened looking at him I went ahead, and told him that he was under arrest for driving while intoxicated. It was my opinion that he had had too much to drink based on the odor, his eyes, and the Alco sensor that I gave him, and that I let him see.

            MR. GASKINS:    Well, objection.

            THE COURT:    Sustained.

            MR. GASKINS:    May I be heard, YourHonor, at the bench?

(Emphasis added). Defense counsel then made a motion for a mistrial at the bench, which Judge Griffin took under advisement. The trial proceeded and the jury returned a verdict finding defendant guilty of the offense of driving while impaired. Thereafter, defense counsel renewed his motion for a mistrial, which again was denied by the trial court.
     During the sentencing phase of the trial, the trial court found no aggravating factors and two mitigating circumstances. As such, the trial court punished defendant at level five and entered a judgment sentencing defendant to imprisonment for sixty days, which sentence was suspended upon the conditions that defendant perform 24 hours of community service, pay a fine, and comply with other terms and conditions of probation.
    Defendant presents one argument on appeal contending the trial court erred in denying his motion for a mistrial on the grounds the testimony of the State's only witness was inadmissible and highly prejudicial. We find no error.
    “Whether to grant a motion for mistrial rests in the sound discretion of the trial court. . . . A mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.” State v. Ward, 338 N.C. 64, 92, 449 S.E.2d 709, 724 (1994) (internal quotations and citations omitted), cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995). Here, defendant contends the trial court erred in denying his motion for a mistrial on thegrounds that Trooper Coleman testified he relied, in part, on the alco-sensor test in forming his opinion that defendant was impaired. Defendant relies on N.C. Gen. Stat. § 20-16.3(d) to support his argument. This statute provides:
        Use of Screening Test Results or Refusal by Officer. _The results of an alcohol screening test or a driver's refusal to submit may be used by a law-enforcement officer, a court, or an administrative agency in determining if there are reasonable grounds for believing that the driver has committed an implied-consent offense under G.S. 20-16.2. Negative or low results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol. Except as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding.

N.C. Gen. Stat. § 20-16.3(d) (2005)(emphasis added).
    Here, Trooper Coleman did not testify about the actual results of the alco-sensor test. Rather, Trooper Coleman testified that he considered the alco-sensor test along with other factors to determine defendant's impairment. Further, defense counsel's objection to Trooper Coleman's testimony regarding the alco-sensor test was immediately sustained by the trial court. Accordingly, we conclude Trooper Coleman's testimony did not violate N.C. Gen. Stat. § 20-16.3(d) and defendant's argument is without merit.
    Assuming, arguendo, Trooper Coleman's testimony regarding the alco-sensor test was improper, we conclude any error was harmless and not prejudicial to defendant in light of the plenary additional evidence of defendant's impairment. See N.C. Gen. Stat. § 15A-1443(stating “[a] defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.”) Section 20-138.1 of the North Carolina General Statutes provides in relevant part:
        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.

N.C. Gen. Stat. § 20-138.1(a) (2005). Here, Trooper Coleman testified that while he and defendant were in his patrol car, defendant had a strong odor of alcohol, his eyes were glassy, and he admitted he had been drinking alcoholic beverages. Further, the Intoxilyzer 5000 test indicated defendant had a blood alcohol concentration of .08 at 8:29 a.m. on 23 May 2004, and defendant admitted he consumed approximately eight to ten glasses of bourbon from 10:30 p.m. on 22 May 2004 until 1:45 a.m. on 23 May 2004. In light of this additional evidence of defendant's impairment, this Court concludes that defendant failed to meet his burden of proof. Accordingly, we hold the trial court did not abuse its discretion in denying defendant's motion for a mistrial.
    No error.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***