State v. McGill
| Decision Date | 19 April 1994 |
| Docket Number | No. 9325SC833,9325SC833 |
| Citation | 114 N.C.App. 479,442 S.E.2d 166 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Jerry Franklin McGILL, Defendant. |
Atty. Gen. Michael F. Easley by Associate Atty. Gen. Robert T. Hargett, Raleigh, for the State.
Sigmon, Sigmon, and Isenhower by W. Gene Sigmon, Newton, for defendant-appellant.
Defendant Jerry Franklin McGill was charged on 14 October 1991 with driving while subject to an impairing substance in violation of North Carolina General Statutes § 20-138.1 (1993). Defendant was tried and convicted in district court. Appealing to superior court, defendant entered a plea of not guilty and the case was tried at the 6 June 1993 session of Catawba County Superior Court.
Evidence presented at trial showed the following: At approximately 8:20 p.m. on 14 October 1991, Raymond Griffin, a trooper with the North Carolina Highway patrol, observed a 1978 Ford pickup truck turning from NC 150 onto East Maiden Road in or near Newton, North Carolina. While turning, the pickup truck came within one foot of hitting Trooper Griffin's stationary vehicle. Trooper Griffin observed the pickup truck in his rear view mirror as it passed his vehicle and noticed that the pickup truck crossed the center line two times as it traveled out of his sight. Trooper Griffin turned his vehicle around in the intersection and caught up with the pickup truck as it turned into a driveway.
Trooper Griffin approached defendant, the driver of the pickup truck, and asked for his driver's license and registration. Defendant had a moderate odor of alcohol about his person, mainly coming from his breath, and his speech was mumbled. Trooper Griffin observed defendant as he walked to the patrol car and noticed that he was unsteady on his feet.
Trooper Griffin transported defendant to jail for the purpose of administering a chemical analysis of defendant's breath. While at jail, Trooper Griffin asked defendant to perform several field sobriety tests. The first test was a one leg stand, where defendant was asked to stand with his arms to his side, to put one foot in front of the other, and to count to 101. Defendant counted to twenty and was wobbly and leaning. Defendant then performed a sway test where he was asked to stand with both feet together and his hands to his side, and to lean his head back and close his eyes. During this test, he leaned and swayed forward. Trooper Griffin then asked defendant to perform a finger to nose test requiring defendant to place his arms at his side, then to extend his arms and touch his nose with his index finger. Defendant performed this unsatisfactorily, placing his right hand to the side of his nose instead of to the tip of his nose.
Trooper Don Fleetwood performed a chemical analysis of defendant's breath to determine the alcohol concentration. Trooper Fleetwood testified that he was a certified chemical analyst and had worked in law enforcement with the Highway Patrol for many years. The results of the test showed that defendant had an alcohol concentration of 0.11.
At the close of all of the evidence, defendant was convicted of driving while impaired. The trial court sentenced defendant to a level three punishment pursuant to North Carolina General Statutes § 20-179(i) (1993) and also required defendant to attend Alcoholics Anonymous two times per week for the period of his supervised probation. From this verdict and judgment, defendant appeals to our Court.
Defendant first argues the trial court committed reversible error in failing to receive evidence that defendant was denied his statutory rights to a pre-arrest test. The State argues that the arresting officer in this case did not have a duty to inform defendant of his pre-arrest right to a chemical analysis of his breath and further, that such evidence was irrelevant and properly excluded from trial. We agree with the State.
Defendant correctly points out that "[a] person stopped or questioned by a law-enforcement officer who is investigating whether the person may have committed an implied-consent offense may request the administration of a chemical analysis before any arrest or other charge is made for the offense." North Carolina General Statutes § 20-16.2(i) (1993). However, in the case sub judice, defendant did not request the administration of a chemical analysis before the...
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