State v. Wood12/6/2005
. Woodard,146 N.C. App. 75, 552 S.E.2d 650 (2001).While defendant was not specifically charged with either reckless driving under N.C. Gen. Stat. § 20-140 or driving while her license was revoked under N.C. Gen. Stat. § 20-28, substantial evidence was presented which tended to show defendant had struck Lieutenant Towne's vehicle and caused more than $1,000.00 in damage. Evidence was presented that tended to show defendant's driving was erratic, she accelerated to hit Lieutenant Towne's vehicle, and the jury found her speeding twelve miles over the limit. Defendant has failed to meet her burden under plain error review to warrant a new trial. This assignment of error is overruled.
IV. Motion to Dismiss
Defendant also contends the trial court erred in denying her motion to dismiss her driving while impaired conviction based on insufficiency of the evidence. Defendant argues that the State did not present substantial evidence that she was impaired. We disagree.
A. Standard of Review
The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of theoffense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance or (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.
N.C. Gen. Stat. § 20-138.1 (2003). Under section (2) of the statute, the only relevant evidence of this defendant's alcohol concentration was a breathalyzer result of 0.07. Other testimony sufficiently supports the jury's conviction of defendant under N.C. Gen. Stat. § 20-138.1(a)(1) of driving " hile under the influence of an impairing substance." See State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (N.C. Gen. Stat. § 20-138.1 creates oneoffense that "may be proved by either or both theories."); see also State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003) ("The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment . . . ."). "An officer's opinion that a defendant is appreciably impaired is competent testimony and admissible evidence when it is based on the officer's personal observation of an odor of alcohol and of faulty driving or other evidence of impairment." State v. Gregory, 154 N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002) (citation omitted).
Here, defendant admitted she had consumed alcohol prior to driving, a fact confirmed by the breathalyzer result, and an open half-filled bottle of vodka was found in the passenger area of her vehicle. Officer Villa smelled an odor of alcohol when he approached
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