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State v. Tesar9/21/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
A jury convicted defendant Robert Jerome Tesar of driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2003). On appeal, defendant contends primarily that the trial court erred in admitting the results of an Intoxilyzer test because of inadequacies in testimony laying the foundation for admission of the test results. Based on our review of the record, we hold that the trial court did not err. We also find no merit to any of defendant's other assignments of error.
Facts
The State's evidence tended to show the following. At approximately 11:00 p.m. on 29 June 2002, defendant failed to stop at a DWI checkpoint, instead driving through at a rate of 15 to 20 miles per hour. When a deputy sheriff yelled at defendant to stop, defendant veered his vehicle into a ditch on the right shoulder of the road and stopped approximately 25 yards later. The deputy approached defendant's vehicle and, as he spoke to defendant, noticed an odor of alcohol.
Defendant is a quadruple amputee whose legs were amputated at mid-shin, whose left arm was amputated six inches below the elbow, and whose right hand was amputated at the wrist. Defendant's prosthetics on his arms consist of "hooks." Also in the car with defendant were a woman in the passenger seat and a young child in the back seat.
The deputy asked defendant if he had been drinking. Defendant claimed that he had only drunk half a beer. According to the deputy, defendant's speech was slurred and his eyes were red and glassy. The deputy had defendant perform field sobriety tests. Based on defendant's performance on the tests and the deputy's observations, the deputy formed the opinion that defendant "had consumed a sufficient amount of some impairing substance as to appreciably impair his physical and mental faculties." The deputy, Michael Aytes, arrested defendant and transported him to the jail where he administered a breath-alcohol test using an Intoxilyzer, Model 5000. That test indicated defendant had a breath alcohol concentration of 0.21.
Defendant testified on his own behalf that he and his wife had been at a party at a friend's home. He testified that when he tried to open a beer, it slipped out of his hook prosthetics and spilled on his clothes. Although he did drink "a portion" of the beer, it "bloated in throat," so he asked another person at the party to throw out the remaining beer. Defendant claimed that he did not drink any other alcoholic beverage that evening. He explained that he thought that the deputy had waved him through the DWI checkpoint and that he had difficulty with the field sobriety tests because of his amputated legs. Defendant also called as a witness the party's host who testified that she did not see defendant drink any alcoholic beverage other than the one beer while he was at her home.
I.
Defendant challenges the trial court's admission of the Intoxilyzer test results, arguing that the State failed to lay a proper evidentiary foundation. N.C. Gen. Stat. § 20-139.1(b) (2003) provides:
A chemical analysis, to be valid, shall beperformed in accordance with the provisions of this section. The chemical analysis shall be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Health and Human Services for that type of chemical analysis.
An arresting office
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