State v. Powell, 262

• Decision Date: 17 March 1965
• Docket Number: No. 262,262
• Citation: 264 N.C. 73,140 S.E.2d 705
• Court: North Carolina Supreme Court
• Parties: STATE, v. Carol Whidbee POWELL, Jr., Petitioner.

Page 705

140 S.E.2d 705

264 N.C. 73

STATE, v. Carol Whidbee POWELL, Jr., Petitioner.

No. 262.

Supreme Court of North Carolina.

March 17, 1965.

Atty. Gen., T. W. Bruton, and Staff Atty., L. P. Hornthal, Jr., for the State.

Arthur Goodman, Jr., Charlotte, for appellant.

PER CURIAM.

An arresting officer testified defendant was operating his automobile in the wrong direction on a one way street in Charlotte. He stopped defendant and placed him under arrest. He expressed the opinion defendant was, when arrested, intoxicated. In response to inquiries by the officer, defendant admitted: 'He had had two or three drinks of Scotch and water.'

Defendant was arrested about 5:30 a. m. Lt. Polson of the Charlotte Police Force, not one of the arresting officers, saw defendant at 6:05 a. m. Based on his personal observation, and the quantity of alcohol consumed, as related by defendant, the witness expressed the opinion that defendant was then under the influence of intoxicants.

There was plenary evidence to support the verdict. Defendant did not, by motion to nonsuit, challenge the sufficiency of the evidence. He contends incompetent evidence weighed heavily in the jury's deliberation. He assigns as error the court's ruling in permitting Lt. Polson to state the result of a test made by using a breathalizer. Polson testified that defendant's breath, when tested, showed .22 per cent of alcohol. Our statute, G.S. § 20-139.1 (c. 966, S.L.1963), creates a presumption of intoxication if as much as .10 per cent alcohol is present in the blood.

Before the witness was asked to relate the results of his test, inquires were made touching his qualifications to make the test. He testified that he attended the Traffic Institute at Northwestern University in 1960, where he was taught how to use the machine invented by Dr. Borkenstein. While there, he did laboratory work on people given known amounts of alcohol to determine the results from its use. In 1962, he spent 26 days at Rutgers summer school studying alcohol and its effects on the human body. In 1963, he observed chemical tests for alcohol at Indiana University, and at the University of North Carloina. He spent some time in the factory where the machines were manufactured. He exhibited the machine to the jury, and explained the principle on which it worked. In 1964, he took a course given by the State Board of Health for the use of Breathalyzers. It licensed him to make the tests.

The qualifications of the person making the test, and the manner in which the tests were made, met the requirements of G.S. 20-139.1. The evidence was competent. State v. Willard, 241 N.C. 259, 84 S.E.2d 899; State v. Moore, 245 N.C. 158, 95 S.E.2d 548; Robinson v. Life & Casualty Insurance Co., 255 N.C. 669, 122 S.E.2d 801.

We quote with approval the language of Brett, P. J., in Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812. He said: 'This court is of the opinion, that we should favor the adoption of scientific methods for crime detection, where the demonstrated accuracy and reliability has become established and recognized. Justice is truth in action, and any...