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State v. Rogers11/5/1996
lcohol in finding probable cause to arrest defendant. The trooper, who had been trained and was experienced in methods of detecting signs of intoxication, had an opportunity to observe defendant stop in the intersection, spoke with him, and smelled a strong odor of alcohol about his person. At this time, the trooper administered an Alco-sensor test which revealed an alcohol concentration of .13. That the trooper failed to administer a second Alco-sensor test, in violation of section 20-16.3(b) of the General Statutes, may not rob him of the probable cause that these facts and circumstances furnished him. There is no prohibition against the results of this test being used by the officer to form probable cause, although this evidence may not have been admissible at trial. As the trooper possessed both a reasonable, articulable suspicion and probable cause to believe that a crime was being committed in his presence, defendant's seizure and consequent arrest were lawful and the trial court properly denied defendant's motion to suppress.
Finally, defendant assigns as error the trial court's denial of his motion to dismiss because his prosecution violated the prohibition against double jeopardy. Notably, defendant failed to include the order revoking his driver's license entered by the magistrate in the Record on Appeal, but asks that we exercise our discretion and allow this order to be appended to the record. However, assuming arguendo we do as defendant requests, defendant is still without relief, as our Supreme Court found in State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996), that revocation of one's driver's license under North Carolina General Statutes section 20-16.5 and subsequent conviction of DWI under section 20-138.1 does not violate the prohibition against double jeopardy. Id. Accordingly, this assignment of error is overruled.
In light of the foregoing, we find that defendant received a fair trial, free from prejudicial error.
No error.
Judges LEWIS and WYNN concur.
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