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State v. Taylor8/17/2004
the defendant was not impaired; other evidence, principally the opinion of a highway patrolman, sufficed to convict). In fact, "the State may prove DWI where the [blood alcohol content] is entirely unknown or less than [0.08]." State v. Harrington, 78 N.C. App. 39, 46, 336 S.E.2d 852, 856 (1985). "The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol." State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003).
In this case, there was evidence that Trooper Davis smelled an odor of alcohol on defendant's person at the accident scene, that defendant needed assistance with walking to the patrol car, that defendant had difficulty writing his statement on the appropriate lines, that defendant had a "blank face," and that defendant did not perform satisfactorily on field sobriety tests administered by Trooper Davis. Further, Trooper Davis gave his opinion that defendant "had consumed a sufficient amount of alcohol to impair both his mental and physical faculties to such an extent that appreciable impairment of either or both [of] his faculties was evident." This evidence was sufficient for a DWI conviction regardless of Glover's testimony. Thus, even if the admission of Glover's testimony was error, the error was not prejudicial.
Defendant argues in assignment of error number ten that the trial court erred by publishing defendant's prior record level to the jury immediately before polling the jurors for their verdicts. Defendant argues that this error violated Rules 402 and 403 of the North Carolina Rules of Evidence because defendant's prior record had no relevance to the issue before the jury and was highly prejudicial information to be revealed to the jury. N.C. Gen. Stat. § 8C-1, Rules 402, 403 (2003). Defendant acknowledges that he failed to object at trial and accordingly asserts that plain error review is applicable. However, the North Carolina Supreme Court "has previously limited application of the plain error doctrine to jury instructions and evidentiary matters." State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002). Defendant's argument fits within neither of these limited situations. Defendant's plain error argument therefore fails and assignment of error number ten is overruled.
No error.
Judge WYNN concurs.
Judge TYSON concurs in the result with a separate opinion.
TYSON, Judge concurring in result only.
I concur in the result reached in the majority opinion to uphold defendant's driving while impaired conviction. I disagree with its conclusion that the trial court did not err in allowing Glover to testify that "defendant's" blood alcohol concentration at the time of the accident was 0.08 using a retrograde average extrapolation rate.
I. Average Data
The State tendered evidence of an average alcohol elimination rate data to prove defendant's actual alcohol elimination rate and establish his blood alcohol concentration at the time of the accident. Unlike the defendant in State v. Catoe, defendant here specifically objected to Glover's qualifications and argued that his testimony lacked foundation. 78 N.C. App. 167, 168, 336 S.E.2d 691, 692, disc. rev. denied, 315 N.C. 186, 338 S.E.2d 107 (1985) (expert's qualifications were "not contested" and "[d]efendant's objections to the contested testimony were only general."); see also State v. Davis, 142 N.C. App. 81, 90, 542 S.E.2d 236, 241, disc. rev. denied, 353 N.C. 386, 547 S.E.2d 818 (2001) ("Defendant did not object to [the expert's] qualifications."). Since we held in Catoe, "[t]he assignment [o
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