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State v. Tuttle10/18/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Defendant was pulled over by Officer Timothy Howes of the Winston-Salem Police Department on 30 August 2003 because the headlights on his truck were on bright, and his license plate had expired. Once Officer Howes stopped defendant, he observed that defendant had difficulty walking, his speech was slurred, and he had a strong odor of alcohol on his breath. Officer Howes administered a field sobriety test, which defendant failed. Officer Howes also administered an alco-sensor alcohol screening test, which indicated that defendant was intoxicated. Officer Howes placed defendant under arrest, and drove him to the jail. Once at the jail, Officer Howes read defendant his implied consent rights, including his right to have a witness present. Defendantcalled his daughter, but then indicated to Officer Howes that she would not show up. Officer Howes then asked defendant if he would submit to testing by the Intoxilyzer 5000. Defendant refused.
Defendant was convicted by a jury of one count of driving while impaired. Defendant stipulated that there were three prior DWI convictions satisfying the necessary elements of the felony of habitual impaired driving. The trial court sentenced defendant to 18 to 22 months imprisonment. From this judgment, defendant appeals.
In defendant's first argument, he contends that the trial court erred in allowing Officer Howes to testify at trial that he relied on alco-sensor results in forming his opinion that defendant was substantially impaired. We disagree.
At trial, Officer Howes, over objection, was allowed to testify that he administered an alco-sensor test to defendant, and that he partially relied upon the results of this test in forming his opinion that defendant was impaired. The precise results of the alco-sensor test were not admitted at trial. Use of the results of an alco-sensor test is governed by N.C. Gen. Stat. § 20-16.3(d), which states:
Use of Screening Test Results or Refusal by Officer. -- The results of an alcohol screening test or a driver's refusal to submit may be used by a law-enforcement officer, a court, or an administrative agency in determining if there are reasonable grounds for believing that the driver has committed an implied-consent offense under G.S. 20-16.2. Negative or low results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determiningwhether a person's alleged impairment is caused by an impairing substance other than alcohol. Except as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding.
In the instant case, the results of the alco-sensor test were not admitted into evidence at trial. Officer Howes testified that an also-sensor test had been administered to the defendant, and that he considered the test along with numerous other factors in reaching his conclusion that defendant was impaired. We hold that this testimony did not violate N.C. Gen. Stat. § 20-16.3(d).
Even assuming arguendo that the testimony concerning the alco-sensor test was improper, in light of the plenary additional evidence of defendant's impairment, we hold any error was harmless. See State v. Wike, 85 N.C. App. 516, 520, 355 S.E.2d 221, 224 (1987). Officer Howes testified at trial that after stopping defendant, defendant exited his truck and used the side of it to
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