 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
North Carolina v. Bain3/5/1985
Defendant assigns as error the trial court's failure to charge the jury on the lesser included offense of careless and reckless driving after consuming alcohol. We agree that there was error. G.S. 20-140(c) provides:
(c) Any person who operates a motor vehicle upon a highway or public vehicle area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle, shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined by G.S. 20-130 as amended.
Where there is evidence from which a jury might find the defendant was driving after consuming enough alcohol to directly and visibly affect his operation of his motor vehicle, the trial court must instruct on the statutory offense of reckless driving under G.S. 20-140(c) and the failure to do so is prejudicial error. State v. Pate, 29 N.C. App. 35, 222 S.E.2d 741 (1976); State v. Burrus, 30 N.C. App. 250, 226 S.E.2d 677 (1976). Here, the State's own evidence tended to show that the trooper had observed defendant in his car cross the center line two or three times, once almost colliding with the trooper's patrol car. The trooper also reported that defendant, when stopped, appeared unsteady on his feet, had red eyes and had an odor of alcohol about his person.
The trial court failed to give the instruction on the lesser included offense of careless and reckless driving after drinking because the trial court believed that defendant's having already taken the breathalyzer test precluded him from being able to charge on careless and reckless driving after drinking. Under G.S. 20-138(a) the breathalyzer test is merely evidence to be considered in determining whether or not a person was under the influence, is not conclusive evidence as to guilt and does not preclude the jury's consideration of the lesser offense of careless
and reckless driving after drinking where, as here, the driving under the influence charge is controverted by defendant's evidence.
The State maintains that "the court is not required to submit to the jury the question of defendant's guilt of a lesser degree of the crime charged . . . when the State's evidence is positive as to each and every element of the charged crime." State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978). The facts in State v. Snead, supra, however, differ markedly from the present case. In Snead the arresting officer came upon the defendant who was milling around his wrecked car. There was no direct evidence that the officer had observed the defendant driving recklessly after consuming enough liquor to impair his ability to operate his car. In Snead, there was no doubt as to his being under the influence of intoxicants at the time of his arrest. Here, the officer observed and testified to defendant's erratic driving just before he was stopped but defendant contested the allegation that he was under the influence of intoxicants.
Justice Bobbitt (later Chief Justice) in State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954) in discussing the need to charge on common law robbery in an armed robbery case, noted:
The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determ
Page 1 2 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|