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State v. Worley12/7/2004
d. I had to ask Mr. Worley that question about 3 times before I finally got an answer . . . I asked Mr. Worley for his driver's license. At that time, he still seemed very disoriented. He took his wallet out of his pocket. He handed me a Sams Card . . . I then instructed Mr. Worley that it was his Sams Card and not his driver's license. I handed it back to Mr. Worley for him to observe and look at. He then was still very disoriented. He looked at it very hard, handed it back to me and said, "No sir, this is my driver's license."
Defendant then failed two field sobriety tests. Given this overwhelming evidence of defendant's intoxication, we conclude that there is no reasonable possibility that the jury would haveconcluded otherwise. Thus, any error in denying defendant's request for the Intoxylizer and its data was harmless beyond a reasonable doubt. We overrule this assignment of error.
Defendant also assigns error to the court's denial of defendant's motion to dismiss. He contends that the magistrate violated N.C.G.S. § 15A-534.2 (2003) when he ordered that defendant be released "to sober adult or daylight." He argues that no part of G.S. § 15A-534.2 allows detention of an impaired driver "until daylight." Although the statute does not explicitly authorize holding an impaired driver "until daylight," it does specifically allow holding an impaired driver until:
(1) The defendant's physical and mental faculties are no longer impaired to the extent that he presents a danger of physical injury to himself or others or of damage to property if he is released; or
(2) A sober, responsible adult is willing and able to assume responsibility for the defendant until his physical and mental faculties are no longer impaired.
Further, G.S. § 15A-534.2 (c) provides that " he defendant may be denied pretrial release under this section for a period no longer than 24 hours." Defendant contends that after he spoke with his mother, at approximately 11:00 p.m, she called the jail and was told she would have to wait until morning. The State challenges this account and asserts that defendant's mother was not delayed and merely chose to pick him up in the morning. The trial court found as fact that "Defendant's mother picked the Defendant up in the morning and was not delayed nor inhibited from coming andpicking up the Defendant sooner." Defendant has not challenged this finding of fact and thus, it is conclusive on appeal. Further, the record shows that defendant arrived at the detention facility at 12:33 a.m. and was released at 8:00 a.m. _ he was in custody far less than twenty-four hours. As the magistrate's order was within the scope of G.S. § 15A-534.2, we conclude that the defendant has failed to show that any official detained him in violation of the statute.
The State also asserts that defendant has failed to show any prejudice. As we have concluded that defendant has not shown a violation of the statute, we need not address the question of prejudice.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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