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State v. Walden10/18/2005
45, 571 S.E.2d 867, 870 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003); see also N.C. Gen. Stat. § 20-138.1 (2004). " ne 'drives' within the meaning of G.S. 20-138.1 if he [or she] is in actual physical control of a vehicle which is in motion or which has the engine running." State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985). It is well settled that a defendant's refusal to submit to an intoxilyzer test "is admissible as substantive evidence of a defendant's guilt"of driving while impaired. State v. Allen, 164 N.C. App. 665, 668, 596 S.E.2d 261, 263 (2004). Furthermore, " he opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol." Mark, 154 N.C. App. at 346, 571 S.E.2d at 871.
The evidence in the light most favorable to the State tends to show that Officer Holloman observed Defendant in physical control of the stolen truck while it was in motion and had its engine running while following the vehicle. Also, when Officer Holloman followed the stolen truck that was driven by Defendant, the truck traveled on several public streets and highways. Officer Holloman concluded Defendant was "extremely" impaired and "had consumed a sufficient amount of an impairing substance to impair his or her physical and/or mental ability to operate a motor vehicle" after observing Defendant stop at a green light, not use the truck's turn signal when making a turn, "narrowly miss " an oncoming police patrol car when making a wide turn, stumble and fall against the truck door when exiting the vehicle, fail to comply with law enforcement's commands; and noticing that she had a strong odor of alcohol about her breath and body, bloodshot eyes, and slurred speech. Finally, Defendant "willfully refused" to submit to an intoxilyzer test. On this evidence, we conclude there was sufficient evidence to support Defendant's conviction of driving while impaired. As a final point, we address Defendant's final contention that the evidence was insufficient to submit the charge of driving while license revoked to the jury. To obtain a conviction of driving while license revoked charge, the State must produce substantial evidence "that (1) [the defendant] operated a motor vehicle, (2) on a public highway, (3) while his [or her] operator's license was suspended or revoked, and (4) had knowledge of the suspension or revocation." State v. Woody, 102 N.C. App. 576, 578, 402 S.E.2d 848, 850 (1991); see also N.C. Gen. Stat. § 20-28(a) (2004). As noted above, there is substantial evidence Defendant operated a motor vehicle on a public highway. Also, the parties stipulated that Defendant's driver's license and driving privilege were revoked on 30 September 2003, and that Defendant had actual and constructive notice and knew that her driver's license and driving privilege were revoked on or about 30 September 2003. Hence, there was sufficient evidence to support Defendant's conviction of driving while license revoked.
In light of the foregoing, we conclude that the trial court did not err in denying Defendant's motion to dismiss all of the charges due to insufficient evidence.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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