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State v. Berkley5/3/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Elmer Berkley was charged with driving while impaired (DWI). He was initially tried and convicted of the offense in district court. Defendant then appealed to the superior court, and this matter was tried de novo on 11 May 2004 before Judge Jerry Braswell and a duly empaneled jury.
The State's evidence tended to show that on the afternoon of 6 August 2003, Trooper Michael Conley of the North Carolina State Highway Patrol observed defendant traveling southbound on U.S. 117, outside of Mount Olive, North Carolina. Defendant was operating a moped, which was proceeding next to the fog line and traveling about 20 m.p.h. The trooper noted, "The defendant was wobblingreal bad on the moped and kind of jerking the wheel, like as if he was about to wreck, maybe if he was impaired or had a medical condition. That's what brought my attention to the moped." Trooper Conley thereafter activated his blue lights, but defendant failed to respond. The trooper also turned on his siren for five seconds, but defendant still refused to pull over.
When defendant stopped for the red light at the intersection of U.S. 117 and N.C. 55, Trooper Conley did also. The trooper then got out of his vehicle and approached defendant. The trooper tapped defendant on the shoulder, whereupon defendant turned and asked, "where the G-- D--- Food Lion was?" Trooper Conley informed defendant that he was in Mount Olive and that Food Lion was across the road. During this exchange, Trooper Conley noticed a strong odor of alcohol about defendant's person. The trooper also noted that defendant's eyes were bloodshot and that his speech was slurred and mumbled. Trooper Conley asked defendant to get off of the moped and step back to his patrol car. Defendant complied, but was rather unsteady on his feet as he walked back to the trooper's patrol car. After speaking briefly with defendant, Trooper Conley placed defendant under arrest for DWI and transported him to the Intoxilyzer room at the Wayne County Jail.
Once they arrived at the Intoxilyzer room, Trooper Conley asked defendant to perform some field sobriety tests. However, when defendant "almost fell over" when trying to perform the finger-to-nose test, the trooper decided to stop the test for fear defendant would injure himself. Defendant subsequently refusedTrooper Conley's offer to take the Intoxilyzer test. Defendant also refused to answer any questions on the A.I.R. form. Based upon his interaction with defendant, the trooper formed the opinion that defendant had consumed a sufficient quantity of an impairing substance to cause an appreciable impairment of his mental and physical faculties. On cross-examination, Trooper Conley denied ever beating defendant.
Defendant testified during his case-in-chief that he drank about four beers on the night before he was arrested by Trooper Conley for DWI. Defendant explained that he had stayed up late that night and got little sleep, which accounted for his bloodshot eyes on the date of his arrest. Defendant stated that he did not shower before leaving for groceries at about 2:30 or 3:00 p.m. on his moped. Defendant further stated that it was his habit to drive his moped on the right side of the fog line to leave a clear path for cars. Defendant denied ever seeing Trooper Conley before the trooper tapped him on his shoulder. Defendant insisted that it was impossible that the trooper activated his lights and siren because he would have notice
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