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North Carolina v. Shuping12/4/1984
Defendant raises a question of first impression in this State relating to the offense of driving while impaired (DWI) pursuant to G.S. 20-138.1 (1983). Essentially, defendant contends that there was insufficient evidence to submit the 0.10 per se offense to the jury because the breathalyzer test results are inaccurate since they are subject to a 0.01 percent margin of error. This Court does not agree with defendant and affirms the judgment of the trial court.
On 6 October 1983, Officer R. T. Williams of the Southern Pines Police Department first saw defendant, Cynthia Wallace Shuping, at 10:45 p.m. at the Southern Pines Police Department where she was obtaining a warrant for the arrest of her ex-boyfriend. At that time, Officer Williams observed that defendant's speech was slurred; she appeared confused; she was staggering; and she had a moderate odor of alcohol on her breath. After defendant left the police department, Officer Williams observed her as she was driving along Pennsylvania Avenue. Defendant's vehicle crossed the center line and brushed the curb on the bridge on West Pennsylvania Avenue. Thereafter, the officer signaled with his siren and blue light and stopped the defendant. The defendant was unable to successfully perform some field dexterity-sobriety tests, and she was placed under arrest for driving while impaired. She was taken to the police department
where she was advised of her rights, before being given a breathalyzer test.
Officer Kenneth Thornton of the Southern Pines Police Department administered a test of the defendant's breath using the Smith and Wesson Model 900A breathalyzer machine. The defendant's test revealed a 0.10 percent blood-alcohol concentration. During this time defendant stated to Officer Williams that she had begun drinking one glass of Creme de Menthe at approximately 8:00 p.m., stopping at approximately 10:00 p.m. She also stated that earlier during the evening she had taken prescription drugs consisting of Nardil, Navane and Xanax, all anti-depressants to calm her nerves.
During a jury trial in superior court, Officer Thornton, the breathalyzer operator, testified extensively about the proper procedure for administering the breathalyzer test given to the defendant. He testified that he had received training in the operation of the Model 900A and held the appropriate permit issued by the Department of Human Resources. He also testified that he followed the approved checklist when he performed the breathalyzer test on the defendant. During cross-examination, Officer Thornton testified in detail about the results of the simulator test conducted on the Model 900A prior to defendant's test, the simulator solution, and the practice of recording simulator results in a simulator master log. Officer Thornton further testified that the readings from simulator tests normally vary from 0.09 to 0.10 percent and that there is a permissible margin of tolerance of 0.01 percent below 0.10 percent. He also stated during re-direct examination that the rules require that a breathalyzer machine cannot be utilized to perform a test on an individual if the simulator test reading is greater than 0.10.
Defendant testified that she did not feel intoxicated and that she took the prescription drugs Navane and Nardil before going to the Southern Pines Police Department on the evening of 6 October 1983. She also testified that she was ignorant of any effects of taking prescription drugs and alcohol together.
I.
The New Statute: Impaired Driving
The offense of driving while impaired is defined as follows:
Impaired driving.
(a) Offense.
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