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State v. Taylor8/17/2004
Darryl Robin Taylor (defendant) was indicted on 24 September 2001 by the Forsyth County grand jury for habitual impaired driving in violation of N.C. Gen. Stat. § 20-138.5. Defendant stipulated pre-trial to his three prior convictions of driving while impaired. Defendant was convicted of driving while impaired on 11 September 2002. The trial court found defendant to have a prior record level IV and sentenced defendant to a minimum term of twenty-two months and a maximum term of twenty-seven months in prison. Defendant appeals.
The State's evidence at trial tended to show that Preston Browder (Browder) was traveling north on Highway 66 in Rural Hall, North Carolina, in his 1984 GMC truck on 15 March 2001 at approximately 1:00 p.m. As Browder was driving, he saw a van driven by defendant coming towards him. The van was traveling south but was entirely in Browder's northbound lane. Browder testified that defendant "was slumped over like he was asleep." In an effort to avoid being hit by defendant's van, Browder "made a quick right." However, defendant's van hit Browder's truck on the driver's side and "turned [Browder] around in a private driveway." Browder testified that after the collision, defendant walked over to Browder's truck and apologized to Browder. Defendant came "within five feet" of Browder but not close enough for Browder to determine whether defendant had been drinking.
Trooper M.W. Davis (Trooper Davis) of the N.C. State Highway Patrol testified that he responded to the accident around 1:10 p.m. and observed defendant's van facing south but located in the northbound lane. Browder's vehicle was facing west in a driveway on the shoulder of the northbound lane. Trooper Davis approached defendant's van and asked defendant for his driver's license and registration. Trooper Davis testified that defendant responded by "look[ing] at [him] with a blank face and then [defendant] started fumbling through some papers." Trooper Davis noticed a "strong odor of alcohol" and "had to assist [defendant]" in getting to the patrol car. Defendant filled out a voluntary statement and Trooper Davis "barely [could] make [the statement] out" due to defendant's failure to write on the appropriate lines. When asked the reason for the collision, defendant stated that he had fallen asleep.
After defendant's statement was completed, Trooper Davis administered two Alcosensor tests and had defendant perform a "walk-andturn" test and a "sway test." Defendant was "swaying off the line" with the walking test and was "swaying side to side" with the sway test. Trooper Davis arrested defendant for driving while impaired and took him to the "Forsyth County Breathalyzer room" in the county jail. Upon arrival, Trooper Davis searched defendant and found ten empty packages of Guaifenesin tablets, which defendant stated helped him with his breathing problems. Before administering a breathalyzer test, Trooper Davis administered two additional performance tests. At 3:18 p.m., defendant submitted to the first breathalyzer test, which showed an alcohol concentration of 0.05.
Paul Glover (Glover), a research scientist and training specialist with the forensic tests for alcohol branch of the North Carolina Department of Health and Human Services, testified as an expert in breath and blood alcohol testing, blood alcohol physiology and pharmacology, and the effect of drugs on human performance and behavior. Glover testified that he performed a retrograde extrapolation and determined that defendant's alcohol concentration at the time of the collision was 0.08. Glover further testified about the combined effect of alcohol and Guaifenesin. Defendant presented no evidence.
We first note that defendant has failed t
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