 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Phillips9/2/1997
fied defendant admitted he had been drinking significantly earlier in the evening. There was sufficient evidence to satisfy the requirements of N.C. Gen. Stat. § 20-138.1(a)(1).
Defendant's contention that the instrument Trooper Bryan used was not properly calibrated to measure a BAC level of 0.08 is not persuasive. The record shows that Trooper Bryan performed the breathalyzer test on the Intoxilyzer 5000 according to the approved methods, and he was qualified to administer the chemical analysis pursuant to N.C. Gen. Stat. § 20-139.1(b) (1993). The instrument was properly calibrated and the calibration check revealed the expected reading of 0.10. The Department of Environment, Health and Natural Resources did not modify the calibration procedure for the Intoxilyzer 5000 to utilize a 0.08 stock solution during simulation testing until 1 May 1995.
As the instrument yielded a 0.10 during simulation testing with a 0.10 stock solution, the machine was operating accurately. State v. Shuping, 312 N.C. 421, 323 S.E.2d 350 (1984). Subsequent testing of defendant's breath presented a reading that is reliable. Id. The fact that the instrument was calibrated using a 0.10 stock solution during simulation testing is inconsequential. Once the trial court determined that the chemical analysis of defendant's breath was valid, then the reading constituted reliable evidence and was sufficient to satisfy the State's burden of proof under N.C. Gen. Stat. § 20-138.1(a)(2). Id. The trial court did not err by denying defendant's motion to dismiss.
Defendant next argues that the trial court committed prejudicial error by denying his motion to set aside the jury verdicts as being against the greater weight of the evidence. Defendant contends that the State failed to prove that either offense charged was committed on any public highway. We do not agree.
"Motions to set aside the verdict . . . based upon insufficiency of the evidence are addressed to the discretion of the trial court and refusal to grant them is not reviewable on appeal in the absence of abuse of discretion." State v. Hamm, 299 N.C. 519, 523, 263 S.E.2d 556, 559 (1980). A review of the record reveals there was sufficient evidence in the form of Trooper Bryan's testimony to show that defendant committed the offense on a highway, specifically Highway 70. Further, defendant shows no abuse of discretion. We find that the trial court did not err by denying defendant's motion to set aside the DWI verdict. For the reasons which have been previously discussed, there is no need to address the issue of whether the trial court erred by denying defendant's motion to set aside the speeding verdict.
We hold that defendant received a fair trial free of prejudicial error as to the DWI charge. Because the superior court lacked jurisdiction to dispose of the speeding charge, judgment is arrested on the speeding conviction in case number 94 CRS 5958.
No error on the DWI charge; judgment arrested on the speeding charge.
Judges WYNN and JOHN concur.
|