State v. Pyatt1/7/1997
App. P. 10(b)(1)(1997)(requiring a timely request from trial court for appellate review); see also, State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)("It is the appellant's duty and responsibility to see that the record is in proper form and complete.")
For these reasons, we cannot review defendant's assignments of error based on the alleged insufficient instructions.
Defendant next maintains that the trial court erred in instructing the jury that it could consider defendant's refusal to take the intoxilyzer test without finding that the refusal was willful. Defendant did not object to this instruction, so it is reviewable for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). "'The plain error rule . . . is always to be applied cautiously,' and 'it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" State v. Wilkinson, 344 N.C. 198, 221, 474 S.E.2d 375, 387 (1996)(citations omitted).
"N.C.G.S. § 20-139.1(f)(1993) provides that evidence of a defendant's refusal to submit to a chemical analysis is admissible against him in a DWI prosecution." State v. O'Rourke, 114 N.C. App. 435, 438, 442 S.E.2d 137, 138 (1994). Defendant argues that because "willful refusal" is required before a driver's license is revoked under N.C. Gen. Stat. section 20-16.2, the requirement of a "willful" refusal should be read into G.S. 20-139.1.
However, G.S. 20-139.1(f) does not require a willful refusal before evidence of a refusal is admissible and we will not read in this additional requirement. The controlling factor in all statutory construction is the intent of the legislature. In re Estate of Bryant, 116 N.C. App. 329, 334, 447 S.E.2d 468, 470 (1994). "'Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.'" State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974)(quoting 7 Strong, N.C. Index 2d, Statutes § 5 (1968)).
Applying these tenets of statutory construction to the present case, we determine that the language in G.S. 20-139.1(f) is clear and unambiguous and not subject to judicial interpretation. Additionally, elsewhere in G.S. 20-139.1, the General Assembly used the term "willful refusal." See G.S. § 20-139.1(b3)(1993). Obviously, if it had intended to require a "willful" refusal in G.S. 20-139.1(f), it would have done so. We therefore conclude that there was no error, much less plain error, in the trial court's instructions. Defendant's assignment of error is overruled.
Finally, defendant contends that his motion to dismiss should have been granted to prevent a violation of the prohibition against double jeopardy. He argues that the charge against him should have been dismissed since he had previously been punished by having his license revoked and paying a $50 fee. This issue has been decided otherwise by the Supreme Court in State v. Oliver, 343 N.C. 202, 210, 470 S.E.2d 16, 21 (1996), and we are bound thereby.
No error.
Judges WALKER and SMITH concur.
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