State v. Coker, 486PA84

• Decision Date: 04 December 1984
• Docket Number: No. 486PA84,486PA84
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Maxie Thomas COKER, Jr.

Page 343

323 S.E.2d 343

312 N.C. 432

STATE of North Carolina v. Maxie Thomas COKER, Jr.

No. 486PA84.

Supreme Court of North Carolina.

Dec. 4, 1984.

Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., David Roy Blackwell, Asst. Atty. Gen., and W. Dale Talbert, Asst. Atty. Gen., Raleigh, for the State.

Merriman, Nicholls, Crampton, Dombalis & Aldridge, P.A. by Nicholas J. Dombalis, II, Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

Defendant's sole assignment of error is that Judge Brewer erred by reversing the district court's dismissal of the charge against him. He argues that the citation upon which he was charged failed to satisfy statutory and constitutional requirements because it did not adequately inform him of the charge against him. Defendant complains that the citation (1) is vague and ambiguous; (2) fails to specify an impairing substance; and (3) fails to specify under which theory of driving while impaired defendant is charged.

North Carolina General Statute § 20-138.1 provides:

(a) Offense.--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 0.10 or more.

(b) Defense Precluded.--The fact that a person charged with violating this section is or has been legally entitled to use alcohol or a drug is not a defense to a charge under this section.

(c) Pleading.--In any prosecution for impaired driving, the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance.

We are of the opinion that the citation meets the statutory requirements of N.C.G.S. 20-138.1(c). However, defendant contends that the language of the statute is ambiguous in that the phrase "subject to an impairing substance" does not have precise legal import. We find defendant's citation, modeled after N.C.G.S. § 20-138.1(c), complies with statutory and constitutional requirements.

The legislature has, within constitutionally mandated parameters, the power to prescribe the manner in which a criminal charge can be stated in a pleading to relieve the State of the common law requirement that every element of the offense be charged. State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978). An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in the event of conviction. State v. Squire, 292 N.C. 494, 234 S.E.2d 563 cert. denied, 434 U.S. 998, 98 S.Ct. 638, 54 L.Ed.2d 493 (1977); State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

An indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner. N.C.Gen.Stat. 15-153 (1983). It will not be quashed "by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment." Id. It is generally held that the language in a statutorily prescribed form of criminal pleading is sufficient if the act or omission is clearly set forth so that a person of common understanding may know what is intended. 41 Am.Jur.2d, Indictments and Informations § 68 (1968).

In determining the sufficiency of indictments, courts must look to long-established and well-known rules of law. Id. at § 70. Words having technical meanings must be construed according to such meanings. Id. Where words in a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning. Lafayette Transportation Service, Inc. v. County of Robeson, 283 N.C. 494, 196 S.E.2d 770 (1973).

The words "subject to" appear in the challenged citation and in the form prescribed by statute. Although not defined in Chapter 20 of the General Statutes, "subject to" is defined in Black's Law Dictionary as "liable, subordinate, subservient, ... obedient to; governed or affected by." Black's Law Dictionary 1594 (rev. 4th ed. 1968) (emphasis added). The word "subject" is defined as "likely to be conditioned, affected, or modified in some indicated way." Webster's Third New International Dictionary (Unabridged 1976).

"Impairing substance" is defined by statute as "[a]lcohol, controlled substance under Chapter 90 of the General Statutes, any other drug or psychoanalytic substance capable of impairing a person's physical or mental faculties or any combination of these substances." N.C.Gen.Stat. 20-4.01(14a) (1983).

We are satisfied that the meaning of driving while "subject to an impairing substance" is so clear and distinct that a person of common understanding would know what is intended. See 41 Am.Jur.2d Indictments and Informations § 68 (1968). We therefore reject defendant's argument to the contrary.

Although defendant has not raised this argument, the State points out that the only difference between the approved short form pleading set forth in the statute and defendant's citation is that defendant was charged with operating a motor vehicle. Subsection c of N.C.G.S. 20-138.1 provides that the pleading is sufficient if it charges that defendant drove a vehicle.

Although Chapter 20 of the General Statutes contains no definition of "drive" or "operate", "driver" and "operator" are defined. In N.C.G.S. 20-4.01(7), "driver" is defined as "the operator of a vehicle." "Operator" is defined as "a person in actual physical control of a vehicle which is in motion or which has the engine running." N.C.Gen.Stat. 20-4.01(25).

We recognize that distinctions may have been made between driving and operating in prior case law and prior statutes regulating motor vehicles. See e.g. State v. Carter, 15 N.C.App. 391, 190 S.E.2d 241 (1972) (interpreting "driving" under a former statute to require motion); Act of March 5, 1935, Chapter 52, § 1, 19 Public Laws 34, (formerly codified at N.C.Gen.Stat. 20-6 (1935)) (repealed 1973) (defining "operator" as a person who is in the driver's seat while the engine is running or who steers while the vehicle is being towed or pushed by another vehicle).

We do not believe, however, that such a distinction is supportable under N.C.G.S. 20-138.1. Since "driver" is defined simply as an "operator" of a vehicle, we are satisfied that the legislature intended the two words to be synonomous. In any event "operate" as used in defendant's citation is not so great a refinement on the statutory short-form pleading as to render the charge unintelligible or to prevent the court from proceeding to judgment. The use, therefore, of the word "operate" rather than "drive" will not require that the indictment be quashed. See N.C.Gen.Stat. § 15-153.

Defendant next contends that the citation, based on the approved criminal pleading set forth in N.C.G.S. 20-138.1(c), is constitutionally infirm because it lacks the specificity necessary to enable him to prepare his defense and to bar subsequent prosecution for the same offense. He argues specifically that he should be informed in the charge of "what evidence the State will present regarding the impairing substance or substances which caused the condition of the defendant resulting in his arrest." In a similar argument he contends the State should make explicit in the citation whether it intends to proceed on a theory of driving while under the influence as set forth in subsection (a)(1) or driving with a blood alcohol content of .10 as described in subsection (a)(2) of the statute. We find no merit in these contentions.

Although it is true that the purpose of an indictment or criminal summons is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused, this Court has long held that the State is required only to allege ultimate facts. Evidentiary matters need not be alleged. State v Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977). A defendant who feels that he may be taken by surprise may ask for a bill of particulars to obtain information in addition to that contained in the indictment. State v. O'Keefe, 263 N.C. 53, 138 S.E.2d 767 (1964) cert. denied, 380 U.S. 985, 85 S.Ct. 1355, 14 L.Ed.2d 277 (1965). As Chief Justice Merrimon stated in State v. Moore, 104 N.C. 743, 10 S.E. 183 (1889):

The mere form of the indictment--any particular form--is not thus made essential. The purpose is to require that the party charged with crime by indictment shall be so charged by a grand jury as that he can learn with reasonable certainty the nature of the crime of which he is accused and make defense. As we have said, it is not necessary in doing so to charge the particular incidents of it--the particular means employed in perpetrating and the particular manner of it--and thus compel the State to prove that it was done with such particular means and in such way, and in no other. Such particularity might defeat or delay justice in many cases, as, indeed, it has sometimes done.

Id. at 750, 10 S.E. at 185-86.

To determine whether the citation sufficiently enables defendant to prepare his defense against the charge of driving while impaired, we look first to the nature of the offense itself.

In 1983 the General Assembly, based on recommendations by the Governor's Task Force, passed the Safe Roads Act which substantially modified existing statutes relating to driving while under the influence of alcohol or drugs. Act of June 3, 1983, Ch. 435, 1983 Advance Legislative Service 52. After examining the Act and its predecessor statut...