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State v. Clapp9/21/1999
Appeal by defendant from judgment entered 16 October 1997 by Judge James D. Llewellyn in New Hanover County Superior Court. Certiorari allowed 26 February 1998 for defendant. Heard in the Court of Appeals 17 August 1999.
Barry Douglas Clapp ("defendant") was indicted and subsequently convicted of Habitual Impaired Driving and Driving While License Revoked. The State's evidence at trial tended to show the following. On 2 March 1997 prior to 3:00 in the morning, defendant entered the Islander Kwik Mart ("Kwik Mart") in Carolina Beach. John McDade ("McDade"), Kwik Mart employee , observed that defendant was bobbing and weaving. McDade later noticed that defendant was sitting in the driver's seat of a car in the parking lot, apparently asleep. The car engine was running and the car was blocking the gas pumps at the Kwik Mart. McDade called the Carolina Beach Police Department.
A few minutes later, Officer John Knoll of the Carolina Beach Police Department arrived. After speaking with McDade, Officer Knoll approached the car in which defendant was seated wearing the seat belt. Officer Knoll shined his flashlight in the car and commanded defendant to wake up. Defendant did not wake up, however, until Officer Knoll reached through the partially open window and tugged defendant's shoulder.
When defendant awoke, Officer Knoll told him that he needed to talk to him. Defendant stated that he was not driving and then said, "Let me pull over." Defendant put the car in forward gear and the car rolled forward. Officer Knoll commanded defendant to stop the car. Defendant put the car into park, but subsequently put the car into forward gear again and the car moved forward. Officer Knoll repeated his command that defendant stop the car. Defendant stopped the car, but then put it into forward gear a third time, causing Officer Knoll to command him a third time to stop the car.
Defendant exited the car and accompanied Officer Knoll to the patrol car. Officer Knoll noticed that defendant was unsteady on his feet, his clothing was mussed, his eyes were glassy and bloodshot, his speech was slurred, and he had a moderate odor of alcohol on his breath. Defendant told Officer Knoll that his name was "Buddy D. Clemmons" and that his date of birth was "June 25, 1954." Officer Knoll later determined that information was not correct.
Officer Knoll took defendant to the police department where defendant refused all field sobriety tests as well as the Intoxilyzer 5000 breath test. Defendant admitted that he was seated behind the steering wheel of the car with the motor running and that he put the car in gear. Defendant denied that he was under the influence of alcohol but indicated that he took medicine, specifically tranquilizers. He denied that he had been drinking and also that he had been driving. Finally, defendant admitted that he had previously been convicted of three charges of Driving While Impaired, Larceny, Possession of Cocaine, two charges of Driving While License Revoked and Disorderly Conduct.
Defendant's evidence tended to show the following. On 1 March 1997, David Clapp, defendant's brother, helped defendant move from St. Joseph's Street to Harbor Avenue. Defendant had consumed two beers at around 11:00 that evening and had taken medication around midnight. Defendant takes the prescription medication, Elavil, for back and neck injuries he sustained in an auto accident. The medication causes him to become sleepy, have slurred speech and red and glassy eyes.
During the early morning on 2 March 1997 shortly before defendant was arrested, David Clapp left defendant in the car at the Kwik Mart and walked back to Harbor Avenue. David Clapp left
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