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State v. Whitley5/3/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Charles Anthony Whitley ("defendant") was charged with driving while impaired ("DWI"), exceeding the posted speed limit by traveling 79 miles per hour ("mph") in a 55 mph zone, driving with a revoked license, driving a motor vehicle upon a public street or highway with an open container, and failing to wear a seat belt. Defendant was also subsequently indicted for habitual DWI, at which time the charge of misdemeanor DWI was dismissed by the State.
The State's evidence at trial tended to show that at approximately 7:00 p.m. on 23 August 2002, Trooper Perry Marshall ("Trooper Marshall") of the North Carolina Highway Patrol noticed a red two-door pickup truck traveling northbound on U.S. 401 inHoke County at a high rate of speed. A subsequent radar reading confirmed that the vehicle was exceeding the posted speed limit of 55 mph by traveling at a rate of 79 mph. The trooper passed defendant's vehicle and slowed down in order to turn around and pursue his truck. While doing so, Trooper Marshall "got a visual on the vehicle [and observed that the driver was] a black male wearing a white ball cap." The trooper also noticed that the driver was not wearing a seat belt.
Trooper Marshall activated his blue lights and "wig-wags." After the vehicle went over a hill, the driver pulled the vehicle to the shoulder of the road. The trooper pulled his car in behind the red truck and immediately noticed that a white male (later identified as Donald Glenn Tew ("Tew")) was, at that point, seated in the driver's seat and a black male was seated in the passenger seat of the truck, wearing a white baseball cap. Trooper Marshall approached the vehicle and asked Tew for his license and registration. Tew complied. The trooper detected an odor of alcohol and asked Tew to step back to his police vehicle.
Once seated in the trooper's vehicle, Tew admitted he had drank a beer. Tew twice told the trooper that he had been driving, but, after taking an ALCO-SENSOR test, Tew stated he had not been driving. Tew explained he was not feeling well and called defendant to drive him into town to pick up some medicine. He and defendant had a "few" beers at his house before going to get the medicine. When he and defendant saw Trooper Marshall, they both "tensed up." After they pulled onto the shoulder of the road,defendant crawled over into the passenger seat, instructing Tew, "Switch with me. Switch with me." Tew complied.
Trooper Marshall asked Tew to exit the patrol vehicle, and the trooper approached the red pickup from the passenger side where defendant was seated. Trooper Marshall opened the passenger side door of the vehicle and saw two half-empty beer bottles on the floorboard closest to the passenger side door. Trooper Marshall asked defendant to step out of the vehicle. Defendant asked, "Why?" The trooper responded, "To step back to my car." Trooper Marshall noticed the odor of alcohol about defendant's person. As defendant exited the vehicle, the trooper also noticed he was having difficulty balancing himself while walking. Defendant used the pickup truck and the police cruiser as support as he walked back to be seated in the cruiser. Trooper Marshall placed defendant in the passenger's seat of his cruiser and questioned defendant as to how much he had to drink. Defendant admitted he "had a beer in the truck." The trooper then asked defendant why he and Tew had switched drivers. Defendant denied driving and also twice refused to
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