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North Carolina v. Midgett12/17/1985
I
The defendant first assigns error to the trial court's denial of his motion to dismiss. Defendant argues that the plea agreement entered into between the defendant and the United States Attorney entitles him to immunity from prosecution in this case and urges this Court to honor his plea agreement. Defendant asserts that his governmental immunity is unique because the federal court approved his agreement. Defendant's argument is without merit.
Imposing a federal plea agreement upon a State prosecutor impinges upon the longstanding concept of dual sovereignty in a State prosecution of an unrelated crime. State and federal governments derive their power from different sources. Each government represents a distinct and separate sovereign. Each may determine what shall be an offense against its authority. Each
sovereign may punish those offenses by exercising its own power and this power is not dependent upon the actions of another sovereign. United States v. Wheeler, 435 U.S. 313, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978).
Ignoring the concept of dual sovereignty, the defendant's federal plea bargain cannot apply to bar this State prosecution. The plea agreement offers two assurances to the defendant. The first assurance made is that the State of North Carolina (along with the federal government) would not "bring additional charges against the defendant for any violation of law now known to the Government." [Emphasis added.] This agreement was signed and approved 30 April 1984. As of that date, this State had already charged the defendant with the offense of driving while impaired. The defendant had been convicted in district court and appealed to the superior court. The driving while impaired charge does not constitute "additional charges." Further, by letter dated 3 August 1984 to State District Attorney H. P. Williams, Jr., Assistant United States Attorney J. Douglas McCullough wrote that the charges contemplated in the plea bargain agreement were solely drug offenses and that at no time was his office aware of any driving while impaired charge. The second assurance made in the plea agreement is that the "Government" would "not indict or prosecute defendant for any criminal offenses that the Government" had knowledge of or that were under investigation. This language clearly contemplates that use of the word "Government" means the United States government and not the State of North Carolina.
For the reasons stated, defendant's first assignment of error is overruled.
II
By his second assignment of error, defendant argues that the trial court erred in overruling his objection to Officer Simmons' testimony as to the results of chemical analysis of the defendant's breath. We disagree.
Officer Simmons testified that defendant's alcohol concentration was "0.14 grams of alcohol per 210 liters of breath." Defense counsel objected to this testimony based on the language of the permit granting the officer authority "to perform chemical analysis
of the breath to determine blood alcohol concentration." Defendant contends that by the express language of the permit, Officer Simmons "was only competent to determine chemical analysis of the breath to determine blood alcohol concentration as opposed to alcohol breath concentration."
Defendant does not challenge the officer's certification to administer a chemical analysis of breath nor does defendant allege that the officer erred when performing the analysis. Defendant does not contest the 0.14 reading. The only dispute is whether Officer Simmons should have said "0.14 grams of alcohol per 100 milliliters of blood" rather than "0.14 gram
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