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[T] State v. Howard8/3/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Andre F. Howard (defendant) was stopped by police after Sergeant J.S. Tabor (the officer) noticed an unusual sound coming from defendant's truck. He testified that it sounded like a tire was about to come off of the truck. The officer also noticed that defendant's truck only had one working headlight and that defendant was driving under the speed limit. When the officer stopped defendant he noticed an odor of alcohol and performed several field sobriety tests on defendant. Defendant was polite and cooperative throughout the exchange, but did not perform well on the tests. The officer also found a half-full can of beer in his truck as wellas an unopened can of beer on the passenger side of the bench seat. Defendant was taken to jail where he refused to take an Intoxilyzer test. Defendant was then taken to the emergency room, and upon release the next morning was transported to the Wake County Jail.
Defendant was indicted for impaired driving, habitual impaired driving, and being an habitual felon. A jury found defendant guilty of driving while impaired. The trial court also found defendant guilty of habitual impaired driving. Defendant pled guilty to habitual felon status and was sentenced to 135-171 months in prison.
I.
Defendant's first assignment of error is that the habitual impaired driving indictment, which charged him with attaining "the status of an habitual impaired driver," was fatally defective because it failed to sufficiently apprise the defendant of the charge against him. Defendant argues that habitual impaired driving is an offense which one commits, and not a status, and so the indictment is fatally defective. We disagree.
A criminal indictment is sufficient if it expresses "the charge against the defendant in a plain, intelligible, and explicit manner." N.C. Gen. Stat. § 15-153 (2003); State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483, 492 (1996). Specifically, the indictment must allege all of the essential elements of the crime sought to be charged. State v. Courtney, 248 N.C. 447, 103 S.E.2d 861 (1958). "Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated assurplusage." State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972).
Recent decisions have established that habitual impaired driving is both a status offense and a substantive offense. See State v. Carpenter, 155 N.C. App. 35, 48, 573 S.E.2d 668, 677 (2002), disc. review denied, 356 N.C. 681, 577 S.E.2d 896 (2003); State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001), cert. denied, 537 U.S. 233, 154 L.Ed. 2d 51 (2002) (both cases define habitual impaired driving as a status as well as a substantive offense).
Because habitual impaired driving is both a status and a substantive offense, then an indictment which charges a defendant using either designation is sufficient to express the charge against the defendant in plain language as required by the statute. The charge itself of "habitual impaired driving" is the essential component.
We hold that the habitual impaired driving indictment was valid.
II.
Defendant next assigns as error the multiple use of two impaired driving convictions, claiming this violated the protections afforded the defendant under the double jeopardy clause of the United States and North Carolina Constitutions.
Defendant argues that h
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