State v. McCabe, 68SC33

Decision Date15 May 1968
Docket NumberNo. 68SC33,68SC33
Citation1 N.C.App. 237,161 S.E.2d 42
PartiesSTATE of North Carolina v. Ralph Harrell McCABE.
CourtNorth Carolina Court of Appeals

T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Staff Atty., for the State.

Braswell & Strickland, by, Thomas E. Strickland, Goldsboro, for defendant appellant.

CAMPBELL, Judge.

It is to be noted that Troopers J. S. Irving, T. A. Baker, and P. C. Eure all testified that in their opinion the defendant was under the influence of some intoxicating beverage to an appreciable extent.

The only question presented is whether or not a breathalyzer test may be administered under these circumstances without first advising the accused that he has the right to refuse to take the test.

In our opinion and we so hold the answer to this question is 'yes'.

G.S. § 20--16.2 provides: '(a) Any person who operates a motor vehicle upon the public highways of this State or any area enumerated in G.S. 20--139 shall be deemed to have given consent, subject to the provisions of G.S. 20--139.1, to a chemical test of his breath for the purpose of determining the alcoholic content of his blood for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered upon request of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this State or any area enumerated in G.S. 20--139 while under the influence of intoxicating liquor.

(b) If a person under arrest refuses to submit to a chemical test under the provisions of G.S. 20--16.2, evidence of refusal shall be admissible in any criminal action growing out of an alleged violation of driving a motor vehicle upon the public highways of this State or any area enumerated in G.S. 20--139 while under the influence of intoxicating liquor. Provided: That before evidence of refusal shall be admissible in evidence in any such criminal action the court, upon motion duly made in apt time by the defendant, shall make due inquiry in the absence of the jury as to the character of the alleged refusal and the circumstances under which the alleged refusal occurred; and both the State and the accused shall be entitled to offer evidence upon the question of whether or not the accused actually refused to submit to the chemical test provided in G.S....

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6 cases
  • Commonwealth v. Herjeczki
    • United States
    • Pennsylvania Commonwealth Court
    • July 25, 1972
    ...power: Commonwealth v. Thompson, supra; Deaner v. Virginia, supra; State v. Kenderski, 99 N. J. S.Ct. 224, 239 A.2d 249 (1968); State v. McCabe, supra; State v. Hagen, 180 564, 143 N.W.2d 904 (1966). We agree with the court in Bush v. Bright [11] that the " obvious reason for acquiescence i......
  • State v. Garcia-Lorenzo
    • United States
    • North Carolina Court of Appeals
    • June 1, 1993
    ...driving has no federal constitutional right to refuse a compulsory blood test on advice of counsel); See, State v. McCabe, 1 N.C.App. 237, 239-40, 161 S.E.2d 42, 44-5 (1968) (breathalyzer test may be administered without first advising the accused that he has a right to refuse the test afte......
  • State v. Allen
    • United States
    • North Carolina Court of Appeals
    • May 24, 1972
    ...defendant of his right to refuse the breathalyzer test does not render the results of the test inadmissible in court. State v. McCabe, 1 N.C.App. 237, 161 S.E.2d 42 (1968). Defendants' next assignment of error is to certain testimony by the officer who administered the breathalyzer test. Th......
  • State v. Krieg, 1267--I
    • United States
    • Washington Court of Appeals
    • May 30, 1972
    ...to refuse to take a breathalyzer test. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. McCabe, 1 N.C.App. 237, 161 S.E.2d 42 (1968). Only the statutory warnings can apprise a driver of his right to refuse the The state further contends that the statutor......
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