State v. Hill, 7618SC571
| Decision Date | 15 December 1976 |
| Docket Number | No. 7618SC571,7618SC571 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Obie George HILL. |
Atty. Gen. Rufus L. Edmisten by Associate Atty. Richard L. Griffin, Raleigh, for the State.
Hubert E. Seymour, Jr., Greensboro, for defendant appellant.
Appellant was charged with violating G.S. 20--138(a) and convicted of violating G.S. 20--138(b). The statute itself provides:
'(a) It is unlawful . . . for any person who is under the influence of intoxicating liquor to drive or operate any vehicle upon any highway . . . within this State.
Since G.S. 20--138(b) is treated as a lesser included offense within G.S. 20--138(a) defendant contends that the source of the proscribed alcohol in G.S. 20--138(b) must be an intoxicating beverage. He supports this argument by asserting that G.S. 20--139, forbidding one to drive while under the influence of any drug, covers non-beverage alcohol. Defendant cites no authority for his position, and we find it untenable.
The primary purpose for which the General Assembly enacted G.S. 20--138(b) is to regulate conduct for the safety of the public using the State's highways. It would be contrary to the legislative intent of G.S. 20--138(b) to read into it a requirement that the source of alcohol be intoxicating beverage as required in G.S. 20--138(a). A person whose blood contains .10 percent or more by weight of alcohol, regardless of the source of the alcohol, and who drives upon the highways within the State violates G.S. 20--138(b).
Appellant next argues that because he innocently imbibed alcohol in the form of cough medicine he lacked the guilty intent, the Mens rea, which is an element of any common law crimes. Thus, he argues, the judge erred in failing to instruct that, in order to violate G.S. 20--138(b), appellant must have known or had reasonable grounds to believe that he was drinking alcohol. We disagree. As is well said in 1 Burdick, Law of Crime § 129j (1946):
The statute in question, G.S. 20--138(b), speaks absolutely. It is in the same category as our speed limit statutes. See, G.S. 20--141(b). Unlike our reckless driving statute, G.S. 20--140, it does not use the word 'willful'. Neither does it use the words 'knowing' or 'intentional'. 'When the language (of a statute) is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation.' State v. McBrayer, 98 N.C. 619, 623, 2 S.E. 755, 756 (1887). Guilty knowledge is not an element of G.S. 20--138(b).
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