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State v. Hilton5/3/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Max Von Hilton appeals from his conviction of driving while impaired, arguing that the trial court erred (1) in not holding a separate hearing on his motion to suppress, (2) in admitting evidence relating to the chemical analysis and sobriety testing without requiring a proper foundation, (3) in making suggestions to the prosecuting attorney, and (4) in denying defendant's motion to set aside the verdict for insufficient evidence. We hold that defendant received a trial free of prejudicial error.
On 13 August 2002, at approximately 5:15 p.m., Officer Brian Bennett of the Caldwell County Sheriff's Office received a callregarding a possible intoxicated driver. He located the vehicle (a truck), followed it for 500 to 600 yards, and observed it cross over the fog line on two occasions. He activated his blue lights and stopped the vehicle, which was being driven by defendant. When he approached defendant's truck, the front window was rolled down and there was a strong odor of alcohol coming from inside the truck. Defendant's speech was confused and he had red, bloodshot eyes.
Officer Bennett asked defendant to step to the rear of the truck. As he walked back, defendant had to continually support himself by holding onto the side of the truck. Defendant then performed poorly on two field sobriety tests. Officer Bennett arrested defendant, searched his vehicle, and found two open containers of Coors Lite beer. Officer Bennett testified that after observing defendant for approximately 20 minutes, he formed the opinion that defendant had consumed a sufficient quantity of an impairing substance to appreciably impair his mental and physical faculties.
Officer Bennett transported defendant to the Caldwell County Sheriff's Department where he administered the Intoxilyzer 5000 breath test. The test indicated that defendant had a breath alcohol concentration of 0.15. Officer Bennett then read defendant his Miranda rights and asked him a series of questions. When asked what day it was, defendant responded that it was Friday although it was actually Tuesday. When asked " hat city or county are you in now," defendant replied that he wasn't in a city. Defendant was charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2003). He was found guilty in district court and appealed to superior court. Following a jury trial with the Honorable James W. Morgan presiding, defendant was found guilty and sentenced to a term of 60 days imprisonment and fined $381.00. Defendant's sentence was suspended and he was placed on unsupervised probation for 18 months. Defendant appealed from his conviction and sentence.
Defendant has failed to cite any legal authority at all in support of his arguments on appeal. In his entire brief, he references not a single statute, rule, or case from North Carolina or any other jurisdiction. In his "Table of Cases and Authorities," he states remarkably: "Counsel for the Defendant-Appellant has been unable to find any North Carolina cases on any of the questions raised by this appeal." Even if there were a lack of pertinent North Carolina case law authority _ which there is not _ defendant could still cite statutes, rules, or authority from other states or the federal courts. Rule 28(b)(6) of the Rules of Appellate Procedure specifies that any assignments of error not supported by authority are deemed abandoned. N.C.R. App. P. 28(b)(6). Nevertheless, in the exercise of
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