State v. Shuping

• Decision Date: 04 December 1984
• Docket Number: No. 501PA84,501PA84
• Citation: 312 N.C. 421,323 S.E.2d 350
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Cynthia Wallace SHUPING.

Page 350

323 S.E.2d 350

312 N.C. 421

STATE of North Carolina v. Cynthia Wallace SHUPING.

No. 501PA84.

Supreme Court of North Carolina.

Dec. 4, 1984.

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

Pollock, Fullenwider, Cunningham & Patterson, P.A. by Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant.

FRYE, Justice.

Defendant raises a question of first impression in this State relating to the offense of driving while impaired (DWI) pursuant to G.S. 20-138.1 (1983). Essentially, defendant contends that there was insufficient evidence to submit the 0.10 per se offense to the jury because the breathalyzer test results are inaccurate since they are subject to a 0.01 percent margin of error. This Court does not agree with defendant and affirms the judgment of the trial court.

On 6 October 1983, Officer R. T. Williams of the Southern Pines Police Department first saw defendant, Cynthia Wallace Shuping, at 10:45 p.m. at the Southern Pines Police Department where she was obtaining a warrant for the arrest of her ex-boyfriend. At that time, Officer Williams observed that defendant's speech was slurred; she appeared confused; she was staggering; and she had a moderate odor of alcohol on her breath. After defendant left the police department, Officer Williams observed her as she was driving along Pennsylvania Avenue. Defendant's vehicle crossed the center line and brushed the curb on the bridge on West Pennsylvania Avenue. Thereafter, the officer signaled with his siren and blue light and stopped the defendant. The defendant was unable to successfully perform some field dexterity-sobriety tests, and she was placed under arrest for driving while impaired. She was taken to the police department where she was advised of her rights, before being given a breathalyzer test.

Officer Kenneth Thornton of the Southern Pines Police Department administered a test of the defendant's breath using the Smith and Wesson Model 900A breathalyzer machine. The defendant's test revealed a 0.10 percent blood-alcohol concentration. During this time defendant stated to Officer Williams that she had begun drinking one glass of Creme de Menthe at approximately 8:00 p.m., stopping at approximately 10:00 p.m. She also stated that earlier during the evening she had taken prescription drugs consisting of Nardil, Navane and Xanax, all anti-depressants to calm her nerves.

During a jury trial in superior court, Officer Thornton, the breathalyzer operator, testified extensively about the proper procedure for administering the breathalyzer test given to the defendant. He testified that he had received training in the operation of the Model 900A and held the appropriate permit issued by the Department of Human Resources. He also testified that he followed the approved check list when he performed the breathalyzer test on the defendant. During cross examination, Officer Thornton testified in detail about the results of the simulator test conducted on the Model 900A prior to defendant's test, the simulator solution, and the practice of recording simulator results in a simulator master log. Officer Thornton further testified that the readings from simulator tests normally vary from 0.09 to 0.10 percent and that there is a permissible margin of tolerance of 0.01 percent below 0.10 percent. He also stated during re-direct examination that the rules require that a breathalyzer machine cannot be utilized to perform a test on an individual if the simulator test reading is greater than 0.10.

Defendant testified that she did not feel intoxicated and that she took the prescription drugs Navane and Nardil before going to the Southern Pines Police Department on the evening of 6 October 1983. She also testified that she was ignorant of any effects of taking prescription drugs and alcohol together.

I.

THE NEW STATUTE: IMPAIRED DRIVING

The offense of driving while impaired is defined as follows:

Impaired driving.

(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.

N.C.Gen.Stat. § 20-138.1 (1983).

Prior to the enactment of G.S. 20-138.1, North Carolina law provided:

Persons under the influence of alcoholic beverages.

(a) It is unlawful and punishable as provided in G.S. 20-179 for any person who is under the influence of alcoholic beverages to drive or operate any vehicle upon any highway or any public vehicular area within this State.

(b) It is unlawful for any person to operate any vehicle upon any highway or any public vehicular area within this State when the amount of alcohol in such person's blood is 0.10 percent or more by weight .... An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence.

N.C.Gen.Stat. § 20-138 (Cum.Supp.1981).

Essentially, this statute made driving with a blood-alcohol concentration (BAC) of 0.10 percent or more a lesser included offense or separate method of proving the offense of driving while under the influence of intoxicants. Additionally, under former G.S. 20-139.1 the result of a chemical test yielding a 0.10 or greater created a presumption that the person was under the influence of intoxicating liquor. State v. Basinger, 30 N.C.App. 45, 226 S.E.2d 216 (1976).

However, the 1983 Act created one substantive offense (DWI) but provided two methods of proving the offense: (1) that the State prove actual driver impairment; or (2) that the State prove only that the defendant operated a vehicle on a public highway or public vehicular area with an alcohol concentration of 0.10 or more at any relevant time after the driving. The present statutory scheme does not depend upon a presumption. "The statute does not presume, it defines." State v. Franco, 96 Wash.2d 816, 823, 639 P.2d 1320, 1323 (1982); N.C.Gen.Stat. § 20-138.1 (1983).

The new DWI law represents an implied consent offense pursuant to G.S. 20-16.2 which states:

Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis.

(a) Basis for Charging Officer to Require Chemical Analysis; Notification of Rights.--Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if he is charged with an implied-consent offense ....

(a1) Meaning of Terms.--Under this section, an "implied-consent offense" is an offense involving impaired driving or an alcohol-related offense made subject to the procedures of this section.

The new act significantly amended the prior chemical testing statutes and enacted definitions governing chemical testing. The General Assembly plainly keyed the 0.10 theory of DWI to the results of a chemical analysis, which is defined in G.S. 20-4.01 as follows:

(3a) Chemical Analysis.--A chemical ¹ test of the breath or blood of a person to determine his alcohol concentration, performed in accordance with G.S. 20-139.1. The term "chemical analysis" includes duplicate or sequential analyses when necessary or desirable to insure the integrity of test results.

The procedures governing the admissibility and performance of a chemical analysis are contained in G.S. 20-139.1. For our purposes, the relevant portions of this statute provide:

(a) Chemical Analysis Admissible.--In any implied-consent offense under G.S. 20-16.2, a person's alcohol concentration as shown by a chemical analysis is admissible in evidence. This section does not limit the introduction of other competent evidence as to a defendant's alcohol concentration, including other chemical tests.

(b) Approval of Valid Test Methods; Licensing Chemical Analysts.--A chemical analysis, to be valid, must be performed in accordance with the provisions of this section. The chemical analysis must be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Human Resources for that type of chemical analysis. The Commission for Health Services is authorized to adopt regulations approving satisfactory methods or techniques for performing chemical analyses, and the Department of Human Resources is authorized to ascertain the qualifications and competence of individuals to conduct particular chemical analyses. The Department may issue permits to conduct chemical analyses to individuals it finds qualified subject to periodic renewal, termination, and revocation of the permit in the Department's discretion.

The new statute, therefore, creates alternate methods of proving the crime of DWI. As defined by G.S. 20-138.1(a)(2), driving with a 0.10 percent BAC comprises one method of committing this crime. Additionally, the statute enables the State to introduce the results of a chemical analysis into evidence to prove the crime if the analysis comports with G.S. 20-139.1(b).

II.

BREATHALYZER RESULTS: DEFENDANT'S CHALLENGE

The defendant contends that there was insufficient evidence to submit the 0.10 aspect of G.S. 20-138.1 to the jury when the defendant's test results were 0.10 and the machine varies between 0.09 and 0.10 percent when the breathalyzer operator conducts the simulator tests. The defendant specifically excepted to the following charges given by the judge to the jury:

I would charge you that for you to find the defendant guilty of driving a vehicle on the highways of this State while impaired the State of North Carolina must prove three things beyond a reasonable doubt. First, that the defendant was driving a 1973 Lincoln. Second, that she was driving that 1973 Lincoln...