STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 04 CRS 241584
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Joseph L. Ledford for defendant-appellant.
Phillip Brown (defendant) appeals from a judgment entered
consistent with a jury verdict finding him guilty of driving while
impaired (DWI). This matter was initially tried in district court
on 18 November 2004, where defendant was found guilty of DWI.
Defendant appealed to the superior court for a trial de novo.
The evidence presented at trial tended to show that in the early morning hours of 11 September 2004, Agent Dale Anthony Chesser of the Mecklenburg County Alcohol Beverage Control Unit was participating in a DWI checkpoint on Providence Road. At approximately 1:30 a.m. defendant drove up to the check point in a Dodge pick-up truck. When Agent Chesser approached the truck, henoticed an order of alcohol emitting from defendant's mouth and that defendant's eyes were glassy and blood shot. Agent Chesser also noticed a cup containing a yellowish liquid in the console of the truck. Defendant admitted that he had consumed alcohol, so Agent Chesser asked defendant to step out of his truck. After observing defendant perform some field sobriety tests, Agent Chesser formed the opinion that defendant had consumed a sufficient amount of an impairing substance to appreciably impair defendant's physical and mental faculties. Agent Chesser arrested defendant and escorted defendant to a mobile unit to perform an intoxilyzer test. The intoxilyzer tests, which were administered at 2:18 a.m. and 2:19 a.m., showed that defendant had an alcohol concentration of 0.09.
During the charge conference, the State requested the standard instructions including the driving while impaired instruction. Defendant requested that the trial court not define relevant time to the jury when instructing on the offense of driving while impaired. The trial court declined defendant's request, responding that it would follow the pattern jury instructions. In its charge to the jury on the offense of driving while impaired, the trial court stated: A relevant time is any time after the driving that the driver still has in his body alcohol consumed before or during the driving. Defendant subsequently renewed his objection regarding the relevant time portion of the instructions and the trial court overruled the objection.
The jury found defendant guilty of driving while impaired. The trial court sentenced defendant to thirty days in the custody of the Sheriff of Mecklenburg County, suspended the sentence and placed defendant on twelve months unsupervised probation. Defendant appeals.
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