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State v. Oliver5/10/1996
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 0.08 or more.
N.C.G.S. § 20-138.1 (1993) (emphasis added). As is indicated by the plain language of the statute, N.C.G.S. § 20-138.1 proscribes the single offense of driving while impaired which may be proven in one of two ways. State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) ("We interpret N.C.G.S. 20-138.1 as creating one offense which may be proved by either or both theories detailed in N.C.G.S. 20-138.1(a)(1) & (2).") Even accepting defendant's argument as true, that some jurors may have found defendant was under the influence of an impairing substance and that some jurors may have found defendant's alcohol concentration was 0.08 or more at some relevant time after driving, the fact remains that jurors unanimously found defendant guilty of the single offense of impaired driving. Thus, as with the indecent liberties statute at issue in Hartness, we conclude that the disjunctive phrasing of the instruction was not a fatal ambiguity which resulted in a nonunanimous jury verdict. This assignment of error is overruled.
For the foregoing reasons, we conclude the defendant received a fair trial, free from prejudicial error.
NO ERROR.
Justice Webb Dissenting.
I Dissent from the majority because I believe that when the defendant was tried for driving while impaired after his license had been revoked for having a blood alcohol content of .08 percent, he was twice put in jeopardy for the same offense.
As I read the cases cited by the majority, if a person has been punished for an offense in one proceeding, the Fourteenth Amendment to the Constitution of the United States prohibits his punishment again for the same offense in another proceeding. The majority says the rule does not apply in this case because the ten-day suspension of the driver's license was a remedial and not a punitive action. The majority says the revocation was for the public safety rather than for punishment.
I disagree with the majority. The loss of a driver's license for ten days is a harsh penalty. I believe the impact on public safety from the revocation of a license for ten days is slight. If the person whose license is revoked is a danger on the highways, a ten day revocation will have little effect on such a danger. He or she will be on the highways again after ten days. If a person whose license is revoked is not dangerous, the only effect of revocation is punishment.
I believe the revocation of the defendant's driver's license for ten days was punitive, and the defendant may not be punished a second time for the action that caused him to lose his driver's license.
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