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State v. Phillips9/2/1997
SMITH, Judge.
Defendant was charged with driving while impaired (DWI) in violation of N.C. Gen. Stat. § 20-138.1 (1993) and speeding 56 in a 35 mile per hour zone in violation of N.C. Gen. Stat. § 20-141 (1993). The record on appeal indicates that at his district court trial, defendant's speeding charge was voluntarily dismissed. Defendant pleaded not guilty to the DWI, but was found guilty of that offense. Defendant appealed to the superior court. Following a trial de novo, the jury found defendant guilty of both offenses. The trial court imposed a suspended sentence and a fine for each conviction. From the judgments entered, defendant appeals.
The State's evidence shows that on 23 July 1994, at approximately 2:05 a.m., defendant was operating his vehicle on Highway 70 in Hildebran, North Carolina. Trooper Harold Bryan of the North Carolina State Highway Patrol stopped defendant after he clocked defendant's vehicle travelng 56.6 miles per hour in a 35 mile per hour zone. Prior to stopping the vehicle, Trooper Bryan observed the vehicle weave towards the right shoulder of the roadway, cross over the center line and make jerking movements on the road. When Trooper Bryan stopped the vehicle he observed that defendant had a pronounced odor of alcohol about him. Defendant responded affirmatively when Trooper Bryan asked if he had been drinking that night. Trooper Bryan subsequently placed defendant under arrest. Although defendant refused to take any field sobriety tests, he did submit to a breathalyzer and signed the consent form after Trooper Bryan read defendant his rights. The test revealed defendant had a blood alcohol concentration, or BAC, of 0.09.
Initially, we note in the case sub judice, that because the State took a voluntary dismissal at the district court on the speeding charge, that offense was not properly before the superior court for final Disposition. The record does not indicate that the State took the voluntary dismissal pursuant to any plea arrangement with defendant. See N.C. Gen. Stat. § 15A-1432 (1988); State v. Joseph, 92 N.C. App. 203, 374 S.E.2d 132 (1988), cert. denied, 324 N.C. 115, 377 S.E.2d 241 (1989). Thus, the superior court did not have jurisdiction over the speeding offense. See N.C. Gen. Stat. § 15A-1431 (Cum. Supp. 1996).
Defendant first argues that the trial court committed prejudicial error by denying his motion to dismiss on the basis that the State failed to establish essential elements of DWI. Specifically, defendant contends that the State did not prove beyond a reasonable doubt that he was impaired as provided by N.C. Gen. Stat. § 20-138.1(a)(1) or that his BAC was at least 0.08 as provided by N.C. Gen. Stat. § 20-138.1(a)(2). We do not agree.
Before defendant can be convicted under N.C. Gen. Stat. § 20-138.1(a)(1), the State must prove beyond a reasonable doubt that defendant had ingested a sufficient quantity of an impairing substance to cause his faculties to be appreciably impaired. See State v. Harrington, 78 N.C. App. 39, 336 S.E.2d 852 (1985). This means a finding that defendant's impairment could be recognized and estimated. Id.
In reviewing a trial court's denial of a motion to dismiss this Court must consider the evidence in the light most favorable to the State, giving the State the benefit of all permissible favorable inferences. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). A review of the record in the light most favorable to the State shows that there was sufficient evidence that defendant was appreciably impaired. Trooper Bryan testified he observed defendant driving erratically and defendant had a pronounced alcohol odor about him on 23 July 1994. Trooper Bryan also testi
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