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State v. Oliver5/10/1996
LAKE, Justice.
Defendant appeals his conviction and sentence for driving while impaired ("DWI") in violation of N.C.G.S. § 20-138.1. Defendant contends his conviction must be reversed because: (1) the administrative license revocation proceeding which resulted in defendant's driver's license being revoked for ten days barred defendant's subsequent criminal prosecution for DWI under the principles of double jeopardy; (2) the arresting officer informed defendant of his rights regarding the chemical analysis of his breath for alcohol concentration rather than allowing another officer to do so, which violated N.C.G.S. § 20-16.2(a) and required the suppression of defendant's breath test result in his criminal prosecution for DWI; and (3) the trial court instructed the jury in such a way as to allow a nonunanimous verdict, which violated the North Carolina Constitution and N.C.G.S. § 15A-1237(b). For the reasons which follow, we affirm defendant's conviction and sentence.
On 24 June 1994, Trooper E.L. Morris charged defendant with DWI in violation of N.C.G.S. § 20-138.1. Defendant submitted to a chemical analysis of his breath to determine his alcohol concentration using an Intoxilyzer 5000, and prior to the chemical analysis, Trooper Morris notified defendant of his rights regarding the Intoxilyzer 5000. At the time defendant was tested, Trooper Morris was a certified chemical analyst with the North Carolina Department of Human Resources. The chemical analysis of defendant's breath revealed defendant's alcohol concentration was 0.08. Trooper Morris completed and filed an affidavit and revocation report regarding the analysis result. Upon review by a magistrate, a revocation order was entered 24 June 1994 revoking defendant's driver's license for ten days. The Division of Motor Vehicles restored defendant's driver's license at the expiration of the ten days upon defendant's payment of a $50 restoration fee.
On 4 May 1995, defendant was found guilty of DWI in district court; defendant appealed to superior court. Defendant filed a motion to dismiss the DWI charge against him on the ground that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevented his prosecution for DWI and filed a motion to suppress the result of the Intoxilyzer 5000 test on the ground that Trooper Morris failed to take defendant before another officer to inform defendant of his rights in accord with N.C.G.S. § 20-16.2(a). Both motions were denied by Judge J.B. Allen, Jr. On 28 June 1995, a jury found defendant guilty of DWI.
I.
Defendant contends that the Double Jeopardy Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution prohibited defendant's conviction for DWI because he allegedly had already been punished for this offense.
The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65, 89 S. Ct. 2072 (1969) (footnotes omitted), companion case overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989). The Law of the Land Clause incorporates similar protections under the North Carolina Constitution. See N.C. Const. art. I, § 19. In this case, defendant contends that the guarantee against double jeopardy has been implicated because he was doubly punished in separate proceedings which were based on the same offense. More specifically, defendant argues that the ten-day administrative re
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