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State v. Tedder4/5/2005
convictions for DWI committed within the preceding seven years of the date of the current offense, and that at the time of the current offense, she drove with a child under the age of sixteen years in the vehicle. Section 20-179(c) mandates that the judge "must impose the Level One punishment under subsection (g) of thissection if the judge determines that two or more grossly aggravating factors apply," or if defendant has two prior impaired driving convictions within the 7 years preceding the offense. N.C. Gen. Stat. § 20-179(c) (2001) (emphasis added). The finding of two prior convictions triggered the mandatory level one sentence; the finding of another grossly aggravating factor had no impact on defendant's sentence. Thus, Blakely relief is not required here, and this assignment of error is overruled.
Defendant next argues that the court erred in denying her motion to dismiss the DWI charge for insufficiency of the evidence. We find no error.
Defendant contends that the State failed to prove she was impaired when the evidence suggests she was actually suffering from a diabetic attack. The standard of review on a motion to dismiss is well-established:
When ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented substantial evidence of each essential element of the crime. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In making its decision, the trial court must view the evidence in the light most favorable to the State.
State v. Smith, 357 N.C. 604, 615-16, 588 S.E.2d 453, 461 (2003), cert. denied, __ U.S. __, 159 L.Ed.2d 819 (2004) (internal citations and quotation marks omitted). "The essential elements of DWI are: (1) Defendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance." State v.Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003) (per curiam) (citing N.C. Gen. § Stat. 20-138.1).
A law enforcement officer may express an opinion that a defendant is impaired, so long as that opinion is based on something more than an odor of alcohol. State v. Rich, 351 N.C. 386, 397-98, 527 S.E.2d 299, 305 (2000). Officer Boak testified that, based on the results of the sobriety test he conducted, defendant "was sloppy drunk" and that "there wasn't just a slight impairment." There was no evidence to explain defendant's diabetic condition or to explain how it might mimic alcohol impairment. Because the evidence presented, taken in the light most favorable to the State, was substantial evidence of each essential element of the crime, we find no error.
Defendant also argues that it was error for the court to proceed with the trial in her absence. Defendant contends the court's action violated her constitutional right to confront witnesses against her. However, " defendant's voluntary and unexplained absence from court subsequent to commencement of trial constitutes . . . a waiver" of this right. State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991). In such cases, it is not error for the court to proceed with trial in the defendant's absence. State v. Skipper, 146 N.C. App. 532, 535, 553 S.E.2d 690, 692 (2001).
No error.
Judges WYNN and STEELMAN concur.
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