Appeal by defendant from judgments dated 21 October 2004 by
Judge James L. Baker in Superior Court, Buncombe County. Heard in
the Court of Appeals 21 February 2006.
Attorney General Roy Cooper, by Special Counsel Isaac T. Avery
III, for the State.
Hall & Hall, P.C., by Douglas L. Hall, for defendant-
Abraham Adams (defendant) was arrested on 6 August 2003 and
charged with driving while impaired in violation of N.C. Gen. Stat.
§ 20-138.1; failing to stop at a stop sign in violation of N.C.
Gen. Stat. § 20-158; and possession of an open container in
violation of N.C. Gen. Stat. § 20-138.7(a1). Defendant pled guilty
in district court to the open container charge and pled not guilty
to the remaining two charges. Defendant was convicted of all three
offenses at the 25 June 2004 session of district court. Defendant
appealed to superior court. Defendant was tried before a jury in
superior court on 19 July 2004 and was found guilty on all three
charges. On defendant's motion, the verdicts were set aside
because the State called the jury bailiff as a rebuttal witness.Defendant was retried on 20 October 2004.
The evidence at trial tended to show that on 6 August 2003, at
approximately 2:00 a.m., Officer Jonathan Brown (Officer Brown) of
the Asheville Police Department was on patrol in the downtown area
of Asheville. At the intersection of Edgehill Avenue and Martin
Luther King Drive, Officer Brown saw defendant, who was driving a
van at approximately fifteen miles per hour, run a stop sign.
Officer Brown stopped defendant, approached defendant's van, and
informed defendant that he had stopped him for failing to stop at
the stop sign. As Officer Brown spoke with defendant, he detected
a "moderate odor of alcohol."
Officer Brown administered field sobriety tests to defendant
in a nearby parking lot. Officer Brown observed that defendant
swayed noticeably from left to right. After defendant failed to
stand on one foot for more than twenty-two seconds, Officer Brown
formed the opinion that defendant's mental and physical capacities
were impaired. Officer Brown arrested defendant for driving while
A wrecker was called to the scene, and defendant's van was
inventoried. Officer Brown found a square box behind the driver's
seat containing a bottle of beer and a cup of what appeared to be
a malt beverage. Officer Brown transported defendant to the
Buncombe County Detention Facility for the purpose of administering
an Intoxilyzer test.
During the pre-test observation period, Officer Brown observed
that defendant's eyes were red and glassy, and that defendant wasextremely talkative. Defendant became increasingly uncooperative
and refused to perform any further field sobriety tests. Officer
Brown read defendant his Intoxilyzer rights and then asked
defendant to sign an acknowledgment form, which he did. Defendant
did not request an attorney or witness for the administration of
the Intoxilyzer test. Officer Brown testified that when the
Intoxilyzer tube was offered to defendant, defendant "took a short
breath and went 'whew' and blew for approximately one second and
stopped and refused to blow any longer." Defendant refused to blow
again and complained that Officer Brown was trying to manipulate
the test. Officer Brown marked the Intoxilyzer test a "refusal."
The jury found defendant guilty of all charges. For the
charge of driving while impaired, defendant was sentenced at Level
V to a suspended term of sixty days, with twenty-four months of
supervised probation. For the other charges, defendant was fined
$201.00. On appeal, defendant argues five assignments of error.
Defendant first argues that the warrantless search of his
vehicle was a violation of his Fourth Amendment rights, and that
the open container of alcohol seized as a result of the search
should have been suppressed.
Defendant contends, and the State argued at trial, that the
alcohol container was seized pursuant to an inventory search. A
determination of whether the warrantless search of the van can be
justified as a lawful inventory search, however, is not dispositive
of this appeal because the evidence was also the fruit of a lawfulsearch incident to arrest. Defendant was lawfully arrested by
Officer Brown after defendant performed a field sobriety test.
After lawfully arresting defendant, Officer Brown had the right to
make a "contemporaneous warrantless search of the passenger
compartment" of defendant's van. State v. Massenburg
66 N.C. App
127, 129, 310 S.E.2d 619, 621
(1984) (citing New York v. Belton
453 U.S. 454, 69 L. Ed. 2d 768 (1981)); see State v. Brooks
N.C. 132, 144-45, 446 S.E.2d 579, 587 (1994) (holding that officers
may search the entire interior of a vehicle incident to arrest).
Since the evidence sought to be suppressed was obtained through
lawful means unrelated to the arguably invalid inventory search,
the "fruit of the poisonous tree" doctrine has no application to
the present case. State v. Phifer
, 297 N.C. 216, 226, 254 S.E.2d
586, 591 (1979).
Moreover, defendant has failed to preserve this assignment of
error for appellate review. Defendant did not object to the
contested evidence at trial. Rule 10(b)(1) of the North Carolina
Rules of Appellate Procedure states, in part, that "[i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make[.]" N.C.R. App. P. 10(b)(1). As our Supreme Court
recently stated in State v. Garcia
, 358 N.C. 382, 597 S.E.2d 724
(2004), cert. denied
, ___ U.S. ___, 161 L. Ed. 2d 122 (2005), "[i]t
is well settled that constitutional matters that are not 'raised
and passed upon' at trial will not be reviewed for the first timeon appeal." Id.
at 410, 597 S.E.2d at 745 (quoting State v. Watts
357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003), cert. denied
U.S. ___, 158 L. Ed. 2d 370 (2004)). Accordingly, defendant has
failed to prevail on this assignment of error and has also failed
to preserve this assignment of error for appellate review.
Defendant next argues the trial court erred in admitting into
evidence the results of the Intoxilyzer test and defendant's
refusal of the test. The first basis of defendant's argument is
that defendant was denied his statutory right to have a person of
his choosing administer the test. The second basis is that the
State failed to lay a proper foundation for admission of the
evidence. We find neither basis has merit.
N.C. Gen. Stat. § 20-16.2(a)(5)(2005) provides that, before a
chemical analysis is performed pursuant to an implied consent
offense, the person charged "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." However,
"if the person charged willfully refuses
to submit to that chemical
analysis, none may be given under the provisions of this
section[.]" N.C. Gen. Stat. § 20-16.2(c)(2005) (emphasis added);
see State v. Bumgarner
, 97 N.C. App. 567, 389 S.E.2d 425, 427,
disc. review denied
326 N.C. 599, 393 S.E.2d 873 (1990)
"a defendant who submits to chemical analysis" is informed
that he has the right to an additional chemical test).
under N.C.G.S. § 20-16.2(c) includes "[a] person's refusal to givethe sequential breath samples necessary to constitute a valid
chemical analysis." N.C. Gen. Stat. § 20-139.1(b3) (2005)
(providing that "the regulations of the Commission for Health
Services governing the administration of chemical analyses of the
breath shall require the testing of at least duplicate sequential
In the present case, defendant verbally agreed to submit to
the Intoxilyzer test but then failed to provide an adequate breath
sample for the Intoxilyzer to measure the alcohol concentration.
After defendant's first attempt failed to register, Officer Brown
explained to defendant that a longer breath was required for the
machine to produce an accurate reading. Defendant refused to
provide a sequential breath sample. We conclude that defendant's
refusal to provide an adequate breath sample constitutes a refusal.
See Tedder v. Hodges
, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885
(1995) (holding that a person's "failure to follow the instructions
of the breathalyzer operator was an adequate basis for the trial
court to conclude that [the person] willfully refused to submit to
a chemical analysis."). Accordingly, defendant was not entitled to
a second test by a person of his choosing.
[a] person's refusal to give the second or
subsequent breath sample shall make the result
of the first breath sample . . . admissible in
any judicial or administrative hearing for any
relevant purpose, including the establishment
that a person had a particular alcohol
concentration for conviction of an offense
involving impaired driving.
N.C.G.S. § 20-139.1(b3). Accordingly, defendant's refusal made theresult of the first breath sample admissible at trial.
Defendant argues the North Carolina Administrative Code
requires evidence of the proper calibration and maintenance of an
Intoxilyzer machine before any results from the machine can be
deemed admissible at trial. Defendant is correct that, in order to
be valid, a chemical analysis such as an Intoxilyzer test must be
performed "according to methods approved by the Commission for
Health Services[,]" which may adopt rules approving such methods.
N.C. Gen. Stat. § 20-139.1(b) (2005). However, the statute
(b2) . . . Notwithstanding the provisions of
subsection (b), the results of a chemical
analysis of a person's breath performed in
accordance with this section are not
admissible in evidence if:
(1) The defendant objects
introduction into evidence of the
results of the chemical analysis of
the defendant's breath; and
(2) The defendant demonstrates
with respect to the instrument used
to analyze the defendant's breath,
preventive maintenance procedures
required by the regulations of the
Commission for Health Services had
not been performed within the time
limits prescribed by those
N.C. Gen. Stat. § 20-139.1 (b2)(1) & (2) (2005) emphasis added.
In the present case, defendant did not object at trial to the
introduction of the results of the chemical test. Nor did
defendant carry his burden of demonstrating at trial that the
preventive maintenance procedures had not been performed.
Accordingly, defendant has shown no error. Further, even if defendant could show error on appeal,
defendant has failed to preserve the error for our review. As
noted above, defendant did not object at trial when evidence of the
Intoxilyzer was presented. Defendant waived his right to appellate
review of this issue by failing to object at trial. N.C.R. App. P.
10(b)(1); State v. Eason
, 328 N.C. 409, 420, 402 S.E.2d 809, 814
(1991) (holding that "[t]his Court will not consider arguments
based upon matters not presented to or adjudicated by the trial
Defendant further waived his opportunity for plain
error review of the issue by failing to specifically allege plain
error on appeal. N.C.R. App. P. 10(c)(4); State v. Bell
, 359 N.C.
1, 27, 603 S.E.2d 93, 111 (2004), cert. denied
, ___ U.S. ___, 161
L. Ed. 2d 1094 (2005) (holding failure to specifically assert plain
error does not preserve issue for appellate review).
Defendant argues the trial court erred in denying defendant's
motion to dismiss the charge of possession of an open container
because the citation was fatally flawed.
At the close of the State's evidence, defendant moved to
dismiss the open container charge. The trial court denied
defendant's motion. On appeal, defendant argues the ground for his
motion to dismiss was that the charging document was fatally
flawed. The State contends defendant's ground at trial was
insufficiency of the evidence, and that therefore defendant did not
preserve for appellate review the question of whether the citation
was fatally flawed. In order to preserve the question forappellate review, defendant's motion to dismiss must have stated
"the specific grounds" for the ruling defendant desired the trial
court to make, "if the specific grounds were not apparent from the
context." N.C.R. App. P. 10(b)(1). A review of the transcript
shows that defense counsel seemed to conflate the two grounds:
Your Honor, we would move to dismiss
possession of open container in 03-CRS-12657.
And the basis for that is the statute Section
20.138.7 states that the pleading is
sufficient if it states the time and place of
the alleged offense in the usual form and
charges that the Defendant possessed an open
container of alcoholic beverage in a passenger
area of a motor vehicle while the motor
vehicle was on a highway or the right-of-way
of the highway . . . .
Your Honor, we would contend there has been no
evidence whatsoever of that and would ask Your
Honor to dismiss that charge.
Even assuming defendant properly preserved the question for
appellate review, we need not address his argument. Defendant
argues the citation was fatally flawed in that it failed to allege
that defendant possessed an open container "on a public highway,"
which is an essential element of N.C.G.S. § 20-138.7. However, the
trial court granted the State's motion to amend the citation to
include the omitted language. Accordingly, we will address
defendant's next argument, that the trial court erred in granting
the State's motion to amend.
The North Carolina Uniform Citation used in the present case
reads as follows:
The undersigned officer has probable cause to
believe that on or about ___, __ (a.)(p.)m.,the ___ day of ___, ___, in the named county,
the named defendant did unlawfully and
willfully operate a (motor) vehicle on a
(street or highway) (public vehicular area)
. . . .
14. (Possess an open container of)(Consume) an
alcoholic beverage in the passenger area of a
motor vehicle. G.S. 20-138.7. [NOTE: Strike
through "operate a (motor) vehicle" and
"(public vehicular area)" at top of citation.]
Officer Brown, following the citation instructions, struck
through the two phrases at the top of the citation: "operate a
(motor) vehicle" and "(public vehicular area)." However, Officer
Brown also struck through the phrase "on a (street or highway)"
that appeared in between the two phrases Officer Brown was
instructed to strike through. At trial, the State moved to make
two amendments to the charging document: (1) add "(a1)" to the
statute listed, in order to specify the charge as an infraction
under N.C.G.S. § 20-138.7(a1), rather than a misdemenor under
N.C.G.S. § 20-138.7(a); and (2) unstrike language on the citation
reading "on a (street or highway)." In allowing the motion to
unstrike language on the citation, the trial court noted its belief
that, despite the officer's strike-through, the citation still
specified that the offense occurred on a street or highway. (T p
115) On appeal, defendant argues the trial court erred in allowing
the stricken language to be added to the citation.
A citation serves as the State's pleading for a misdemeanor
prosecuted in the district court, unless the State files a
statement of charges, or there is an objection to trial on the
citation. N.C. Gen. Stat. § 15A-922(a) (2005). A citation may beamended at any time prior to or after final judgment when the
amendment does not change the nature of the offense charged. N.C.
Gen. Stat. § 15A-922(f) (2005). N.C.G.S. § 15A-922(f) "conforms to
the long-held principle in this State that an amendment to a
warrant under which a defendant is charged is permissible as long
as the amended warrant does not charge the defendant with a
different offense." State v. Clements
, 51 N.C. App. 113, 116, 275
S.E.2d 222, 225 (1981) (holding that the nature of the offense with
which the defendant was charged, death by vehicle, was not changed
by striking the allegation of following too closely and
substituting therefore the allegation of failure to reduce speed to
avoid an accident). It is also well established that a fatally
defective warrant cannot be amended. State v. Madry
, 140 N.C. App.
600, 537 S.E.2d 827 (2000); State v. Bohannon
, 26 N.C. App. 486,
216 S.E.2d 424 (1975).
, our Court upheld the amendment
of a defective warrant, where that warrant adequately notified the
defendant of the offense charged. Bohannon
, 26 N.C. App. at 488,
216 S.E.2d at 425. The facts of Bohannon
were that the State's
original warrant for arrest was defective in that it recited that
the defendant drove a motor vehicle on a public highway "after" his
operator's license had been suspended, instead of "while" his
license had been suspended. Id.
at 489-87, 216 S.E.2d at 424. Our
Court held that the original warrant adequately notified defendant
of the offense charged and was properly cured by amendment, i.e.,
insertion of the word "while" in place of the word "after." Id.
488, 216 S.E.2d at 425. "But where the warrant does not containsufficient information to notify the defendant of the nature of the
crime charged and fails to contain even a defective statement of
the offense, it is fatally defective and cannot be cured by
In the present case, while the original citation contained a
defective statement of the offense charged, the citation contained
sufficient information to adequately notify defendant of the
offense. In a prosecution for a violation of N.C.G.S. § 20-
138.7(a1), a pleading is sufficient
if it states the time and place of the alleged
offense in the usual form and charges that (i)
the defendant possessed an open container of
alcoholic beverage in the passenger area of a
motor vehicle while the motor vehicle was on a
highway or the right-of-way of a highway[.]
N.C. Gen. Stat. § 20-138.7(g) (2005). Even without the preprinted
language "on a (street or highway)," the citation contained
adequate information to give defendant sufficient notice of the
charge of open container possession, in that the citation stated:
(1) the time, date, and county in which the alleged offense
occurred, (2) that defendant possessed an open container of an
alcoholic beverage in the passenger area of a motor vehicle in
violation of N.C.G.S. § 20-138.7, and (3) that defendant possessed
a "green cup [with] malt beverage contained inside[,] [a] Budweiser
bottle half full [and] cold[,] located behind [the] driver's seat."
Moreover, the citation noted that Officer Brown was on Edgehill
Avenue near the intersection with Martin Luther King Drive when he
issued the citation to defendant. Because the citation adequately
notified defendant of the offense charged and did not change thenature of the offense, the citation was properly cured by
Defendant's final argument is that the trial court erred in
excluding from evidence a manual developed by the National Highway
Traffic Safety Administration and tendered by defendant. Defendant
argues admission of the evidence was proper under Rules of Evidence
803(8), 803(17), and 902(5). We note first that defendant's
assignment of error does not make reference to any court ruling or
transcript page, as required by N.C.R. App. P. 10(c)(1) ("An
assignment of error is sufficient if it directs the attention of
the appellate court to the particular error about which the
question is made, with clear and specific record or transcript
references."). Overlooking this violation of the Rules,
defendant's argument has no merit.
Our Supreme Court has stated:
A trial court's ruling on an evidentiary point
will be presumed to be correct unless the
complaining party can demonstrate that the
particular ruling was in fact correct.
if the complaining party can show that the
trial court erred in its ruling, relief
ordinarily will not be granted absent a
showing of prejudice.
State v. Herring
, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988)
(internal citations omitted). In the present case, defendant makes
no allegation of prejudice, but instead simply states that the
impropriety of the trial court's ruling entitles defendant to a new
trial. Defendant does not explain what information was contained
in the proposed exhibit, nor how the jury would have used theinformation contained in the exhibit. Defendant's bare allegation
of error, with no offer of prejudice, cannot be sustained. This
assignment of error is overruled.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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