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[T] State v. Callicutt5/6/2003
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Arnold Wayne Callicutt (defendant) appeals from a judgment dated 15 February 2001 entered consistent with his guilty plea to the offense of driving while impaired (DWI). Defendant's guilty plea followed the denial of his motion to suppress the results of a blood test and, as part of a plea agreement, defendant reserved the right to appeal that denial pursuant to N.C. Gen. Stat. § 15A- 979(b).
At a suppression hearing held on 14 February 2001, W.A. Smith (Smith), testified for the State that on 23 March 1999 he was an officer with the Asheboro Police Department. He was called to respond to a two-vehicle accident and arrived on the scene afterapproximately fifteen to twenty minutes. By the time he arrived, EMS personnel were already removing "the passenger and the driver" from a pick-up truck, defendant's vehicle, and examining the driver of the other vehicle. Smith testified he attempted to speak with the drivers of both vehicles also.
Scattered around defendant's vehicle were several unopened beer cans that were "ice cold" to the touch and appeared to have fallen out of the back of the vehicle. Smith also discovered at least one open beer can in the passenger compartment of the vehicle containing beer that was still cold. Later, Smith went to the hospital to which the accident victims had been transported to assess their conditions. The attending physician stated that he believed one of the victims had been drinking because defendant had alcohol on his breath. Smith thought he subsequently told the physician that the person with alcohol on his breath was the driver of one of the vehicles. Smith requested that defendant submit to a blood test, and defendant consented. The test revealed defendant to have a 0.08 blood alcohol level. Defendant was consequently charged with DWI and transporting an open container of alcoholic beverage after consuming alcohol.
On cross-examination, Smith admitted he was no longer employed by the Asheboro Police Department. In response to being asked why he had left that employment, the State objected but was overruled on the ground that the question went to the credibility of thewitness. Smith then invoked his Fifth Amendment right against self-incrimination. Defendant moved to strike Smith's entire testimony, which the trial court denied.
On re-direct examination and in response to an objection by defendant, the trial court required the State to present proper foundation to show defendant had received oral and written notice of his chemical analysis rights. During the presentation of this evidence, the trial court requested various clarifications on the foundation laid for the introduction of that evidence. Although Smith testified that he had read defendant his chemical analysis rights, he could not remember whether he had given defendant a written copy. The State, however, submitted Smith's affidavit and revocation report which indicated he had informed defendant of his rights both orally and in writing. Based on the presentation of the evidence, the trial court found and concluded in pertinent part:
5. . . . Smith determined that he had reasonable grounds to believe the defendant had committed two implied consent offenses . . . . This conclusion was based on the occurrence of the collision and its extent, the presence of one or more open alcoh
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