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State v. Hiatt12/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Junior Davis Hiatt ("defendant") appeals from judgments of guilty of driving while impaired ("DWI") and transporting spiritous liquor within the passenger area of a motor vehicle in other than the manufacturer's unopened original container. We remand for resentencing.
On 4 September 2002, at approximately 1:47 a.m., Officer Kyle James ("Officer James") of the Mt. Airy Police Department observed a vehicle driven by defendant cut across the centerline and run off the roadway while making a right turn. Officer James followed defendant and observed defendant: (1) weave between the roadway centerline and fog line, (2) cross the centerline at least once, (3) travel fifteen to twenty miles per hour below the posted speedlimit, and (4) run off the right of the roadway a second time. Officer James activated his blue light and stopped defendant.
After asking defendant for his driver's license, Officer James noticed a strong odor of alcohol and requested that defendant step away from the vehicle. As defendant exited the vehicle, Officer James was required to place his hands on defendant's chest to prevent defendant from falling. Officer James then observed that defendant had glassy, red, bloodshot eyes, a strong odor of alcohol on his breath, and slurred speech. At that point, Officer James asked defendant to complete a field sobriety test. As defendant attempted to comply, Officer James had to again place his hands on defendant's chest in order to steady him. Defendant then placed his hand on the vehicle to balance himself. After deciding further field tests would be unsafe for defendant, Officer James placed defendant under arrest for DWI. Officer James and a second officer then removed a passenger, who also appeared intoxicated, from defendant's vehicle and searched the passenger compartment. On the passenger side of the vehicle, the officers found two half empty bottles of liquor each with the manufacturer's seal broken.
Officer James transported defendant to the Mt. Airy Police Station and asked defendant several questions. Officer James testified that defendant: (1) gave the wrong month when asked the date, (2) did not respond when asked on which road he was stopped, (3) stated he had begun drinking in a bar around 11:00 p.m. and quit drinking five minutes before he was stopped, (4) could not remember how many drinks he had consumed, (5) was talkative,excited, insulting, cocky, and used profanity, and (6) appeared extremely intoxicated throughout the nearly two and one-half hours Officer James observed him.
Defendant pled not guilty to driving while impaired and transporting spirituous liquor within the passenger area of a motor vehicle in other than the manufacturer's unopened original container. A Surry County District Court judge found defendant guilty, imposed a level five sentence of 60 days in the custody of the Surry County Jail, suspended the sentence, and placed defendant on unsupervised probation for 12 months with appropriate monetary conditions. Defendant gave notice of appeal to superior court.
This matter was then heard in the Surry County Superior Court. In superior court, at the close of the State's evidence and after a recess of approximately twenty minutes, the following exchange occurred:
COURT: Bring our jury in.
(WHEREUPON: The jury returned to the courtroom at 2:53 p.m.)
BAILIFF: We lost four. Let me see if they're
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