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State v. James10/19/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Shawn Patrick James ("defendant") appeals his conviction of impaired driving. For the reasons stated herein, we dismiss the appeal.
The State's evidence at trial tended to show that defendant was stopped and charged by State Trooper Kenneth E. Moore ("Trooper Moore") after the trooper observed defendant driving on the fog line, the solid white line on the far right side of the road. Upon approaching the car, Trooper Moore observed that there was a "strong odor of alcohol in the vehicle," and that defendant had "red, glassy eyes." Trooper Moore arrested defendant and transported him to the Law Enforcement Center where he submitted toan Intoxilyzer test and several performance tests. Defendant was charged and found guilty of Driving While Impaired.
The trial court ordered defendant to serve a suspended sentence of sixty days in the Department of Corrections, and placed defendant on supervised probation for a period of eighteen months under all regular conditions of probation as well as the following special conditions: defendant was ordered to complete twenty-four hours of community service within forty-five days; defendant was ordered not to "use, possess, or control any illegal or controlled substance unless it has been prescribed for the Defendant" during the term of his probation; defendant was also ordered not to "use, possess, or consume any alcohol during this period." Defendant requested a limited driving privilege during his probation. The trial court denied defendant's request. It is from this conviction that defendant appeals.
The issues presented on appeal are whether the trial court erred by (I) denying defendant limited driving privileges; and (II) imposing a condition of probation that defendant not use, possess or consume alcoholic beverages. The dispositive issue is whether the questions raised by defendant were properly preserved for appellate review. We note, and defendant concedes, that defense counsel failed to object to these matters at trial. We further note that these issues are not reviewable for plain error, which is reserved for appellate review of jury instructions and evidentiary rulings. See State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109(1998) cert. denied, Atkins v. North Carolina, 526 U.S. 1147, 143 L.Ed.2d 1036 (1999). Defendant argues that these issues are preserved for appeal because the trial court violated a statutory mandate. We disagree.
Defendant first argues that "the trial court . . . violated the statutory mandate of N.C. G.S. Sec. 20-179[.3](a) and (b) by refusing to allow the defendant to show just cause why he is eligible for a limited driving privilege." We disagree.
General Statutes sections 20-179.3(a) and (b) provide in pertinent part as follows:
(a) Definition of Limited Driving Privilege. _
A limited driving privilege is a judgment issued in the discretion of a court for good cause shown authorizing a person with a revoked driver's license to drive for essential purposes related to any of the following:
(1) His employment.
(2) The maintenance of his household.
(3) His education.
(4) His court-ordered treatment or assessment.
(5) Community service ordered as a condition of the person's probation.
(6) Emergency medical care.
(b) Eligibility. _
(1) A person convicted of the offense of
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