{ "id": 11918808, "name": "STATE OF NORTH CAROLINA v. KEITH A. WATSON, Defendant", "name_abbreviation": "State v. Watson", "decision_date": "1996-06-04", "docket_number": "No. COA95-352", "first_page": "596", "last_page": "602", "citations": [ { "type": "official", "cite": "122 N.C. App. 596" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "65 ALR4th 1238", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "312 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755385 ], "opinion_index": -1, "case_paths": [ "/nc/312/0361-01" ] }, { "cite": "74 ALR3d 1138", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "323 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "322-23" } ], "opinion_index": 0 }, { "cite": "448 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "542" }, { "page": "542" }, { "page": "544" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524637 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0473-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "21-22" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "70" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/us/449/0411-01" ] }, { "cite": "312 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755385 ], "weight": 2, "pin_cites": [ { "page": "372-73" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0361-01" ] } ], "analysis": { "cardinality": 678, "char_count": 15112, "ocr_confidence": 0.731, "pagerank": { "raw": 1.354871291798671e-07, "percentile": 0.6343174833745133 }, "sha256": "56607799c5678992a4eb32abc938d0d21d96e5adb240bbbba07751bad0bb35de", "simhash": "1:c2bba76573728070", "word_count": 2473 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge WALKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH A. WATSON, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was charged with and found guilty of impaired driving in Pitt County District Court. He appealed to Superior Court, where a jury again convicted him. Defendant appeals. For the reasons stated below, we find that defendant received a fair trial free of prejudicial error.\nAt trial the State\u2019s evidence tended to show that one morning in June 1993 at approximately 2:30 a.m. Trooper Everett Lee Deans, a highway patrolman, observed a 1971 Ford pickup truck driving on the dividing line on State Road 1534, a two-lane highway, near a nightclub called Hard Times. After Trooper Deans turned to follow the vehicle, he noticed it weaving back and forth in its lane. After observing this behavior for approximately 15 seconds, the officer pulled the vehicle over.\nTrooper Deans testified that defendant was driving the vehicle. After smelling a strong odor of alcohol as he approached the truck, Trooper Deans requested that defendant join him in his patrol car. In the car, the officer noticed a strong odor of alcohol coming from defendant and that his eyes were red and glassy. Trooper Deans arrested defendant for impaired driving.\nTrooper Deans, a certified chemical analyst, then transported defendant to the intoxilyzer room where he examined and prepared the machine. Prior to administering the test, he informed defendant of his intoxilyzer rights and gave him a copy of those rights. After the test, the results showed a .13 alcohol concentration. Trooper Deans provided a copy of the results to defendant.\nNext, defendant consented to a series of psychophysical tests including a one-legged stand, walking a line, a sway test, and a finger-to-nose test. The officer\u2019s testimony revealed that defendant performed only the sway test satisfactorily. After receiving his Miranda rights, defendant told Trooper Deans that he had drunk three or four beers that evening but did not think he was under the influence of alcohol.\nThe trooper testified that in his opinion after observing the defendant for approximately two hours, he believed defendant \u201chad consumed enough alcoholic beverage to appreciably impair both his mental and physical faculties that he should not have been operating that vehicle on that night.\u201d On cross-examination, Trooper Deans agreed that there was nothing unusual about defendant\u2019s speech or ability to walk.\nDefendant\u2019s evidence consisted of testimony from himself and a Ms. Brinkley, a passenger in his truck that evening. Defendant testified that he had about four beers that evening but was not impaired. Ms. Brinkley, who at the time had known defendant for a year and a half, stated that she noticed nothing different about defendant and that she had no concerns about riding with him that evening.\nDefendant made fifteen assignments of error. However, because he only argued five in his brief, the rest are deemed abandoned. N.C.R. App. P. 28(a) (1996).\nDefendant first argues that Trooper Deans did not have a reasonable and articulable suspicion when he stopped the defendant\u2019s vehicle. We disagree.\nSince the Fourth Amendment applies to brief investigatory stops such as this one, an \u201cinvestigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.\u201d United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 628 (1981). It is our job to consider the totality of the circumstances to determine whether there was a reasonable suspicion to make the investigatory stop. See State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). \u201cThe stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.\u201d Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906 (1968)). All that is required is a \u201cminimal level of objective justification.\u201d Id. at 442, 446 S.E.2d at 70.\nIn this case, Trooper Deans testified that he observed defendant driving on the center line and weaving back and forth within his lane for 15 seconds. This observation occurred at 2:30 a.m. on a road near a nightclub. Looking at the totality of the circumstances, we hold that this evidence is sufficient to form a suspicion of impaired driving in the mind of a reasonable and cautious officer. We therefore overrule this assignment of error.\nDefendant next argues that the trial court erred in not granting his motion to suppress the results of his chemical analysis. The first basis for his argument is that he was not properly advised of his rights under N.C. Gen. Stat. 20-16.2(a) because Trooper Deans did not take him before another officer to have his rights read. Defendant argues that Nicholson v. Killens, 116 N.C. App. 473, 448 S.E.2d 542 (1994), controls. We disagree.\nIn Nicholson, the charging officer requested that the defendant submit to a chemical analysis, but the defendant refused. Id. at 474, 448 S.E.2d at 542. The defendant was not taken before another officer to be advised of his rights under G.S. section 20-16.2(a). Id. The defendant\u2019s driver\u2019s license was revoked. The trial court subsequently entered an order rescinding the revocation on the ground that the defendant had not been notified of his rights in accordance with G.S. section 20-16.2(a). Id. at 475, 448 S.E.2d at 542. This Court affirmed, holding that a second officer should have advised the defendant of his rights. Id. at 478, 448 S.E.2d at 544. However, the Court stated: \u201c[0]ur decision here has no adverse effect whatever on the admissibility of the results of the breath analysis using an automated breath instrument that prints the results of its analysis, where the driver has agreed to submit to the breath analysis.\u201d Id. Its holding was limited to cases in which a driver refuses to submit to a breath analysis.\nIn this case, the record contains no evidence that defendant refused to submit to the test. In fact, the evidence is clearly to the contrary. Defendant was informed of his rights, signed a form containing those rights and submitted to the chemical analysis. Therefore, Nicholson is inapplicable. We hold that defendant was adequately notified of his rights as required by G.S. section 20-16.2(a).\nThe second basis defendant uses to support his suppression motion is that Trooper Deans did not record the printed results of the test nor did he provide defendant with a copy prior to trial as mandated by N.C. Gen. Stat. section 20-139.1(e). We find no merit in this argument.\nN.C. Gen. Stat. section 20~139.1(e) (1993) requires the chemical analyst to record the results of the test and the time of collection of the breath samples. It also requires that a copy of this information be given to the person submitting to the test. However, in this case the required information was supplied on the test card printed by the machine after the test was performed. Trooper Deans testified that he gave this card to the defendant. That is sufficient.\nDefendant relies on State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984), to support his contention that a separate recording is required. We do not find this case persuasive or controlling here. The issue in Smith is whether N. C. Gen. Stat. section 20-139.1(el), which allows an affidavit by a chemical analyst to be admissible without further authentication, violates an accused\u2019s confrontation rights. Smith makes no mention of G.S. section 20-139.1(e), which is at issue in this case. The Smith court did, however, recognize the reliability and accuracy of current blood alcohol testing methods, which is the basis for our determination that the record produced by the machine is sufficient to meet the requirements set out in G.S. section 20-139.1(e). Smith, 312 N.C. at 372-73, 323 S.E.2d at 322-23.\nDefendant also argues that the breathalyzer results should have been suppressed because Trooper Deans failed to provide him with a copy of his breathalyzer rights as required by N.C. Gen. Stat. section 20-16.2(a). This argument has no merit because the record contains evidence that the officer did provide defendant with a copy of his rights prior to reading them. On direct examination Officer Deans testified:\nQ: Okay. Would you explain and demonstrate to the jury how you informed the defendant of those rights?\nA: I give the defendant a copy of the rights before reading, reading him his rights, and I tell him if he wants to read along with me that\u2019s fine, but I am going to read his rights out loud to him.\nOn cross examination, he confirmed:\nQ: And you also gave him a copy to read along with you while you were reading those to him, correct?\nA: That\u2019s correct.\nFinally in support of his motion to suppress, defendant argues that the State did not present sufficient evidence of instrument calibration under N.C. Admin. Code tit. 15A, r. 19B.0320(5) (April 1993) and N.C. Admin. Code tit. 15A, r. 19B.0101(9) (January 1990). We disagree.\nN.C.A.C. 19B.0320(5) provides that when using the Intoxilyzer Model 5000 the person administering the test must \u201cverify instrument calibration.\u201d At trial, Trooper Deans testified that as part of his preparation of the machine he \u201cinsured that the instrument calibration checked out accurately.\u201d Defendant argues that this testimony is insufficient because it does not provide the details set forth in the definition of \u201cverify instrument calibration\u201d found in N.C.A.C. 19B.0101(9).\nWe hold that because Trooper Deans\u2019 testimony demonstrated that calibration was verified, it showed that he sufficiently complied with the requirements set forth in N.C.A.C. 19B.0320. On cross-examination the defendant had an opportunity to question Trooper Deans regarding the specifics of his instrument calibration, which defendant failed to do. This argument is meritless and defendant\u2019s motion to suppress the results of the chemical analysis was properly denied.\nFinally, defendant contends that the trial court erred in denying his motions to dismiss at the close of the State\u2019s evidence and at the close of all evidence. He bases this contention on two grounds. First, he argues that absent the chemical analysis results, the State failed to produce substantial evidence of his impairment. However, since we have found the results of defendant\u2019s intoxilyzer test properly admitted, we see no need to address this argument.\nSecond, defendant argues that since Trooper Deans testified that the events in question happened on the 25th of June when they really happened on the 5th of June, there is a fatal variance which should result in granting his motion to dismiss. We disagree. Although Trooper Deans did testify that the events in question happened on a different day, defendant testified that the events described by Trooper Deans occurred on 5 June 1993. We therefore hold that this mistake on the part of the officer was just that and not a fatal variance as alleged by defendant. Defendant\u2019s motions to dismiss were properly denied.\nNo error.\nChief Judge ARNOLD and Judge WALKER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T Avery, III, for the State.", "James Hite Avery Clark & Robinson, by Leslie S. Robinson, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH A. WATSON, Defendant\nNo. COA95-352\n(Filed 4 June 1996)\n1. Automobiles and Other Vehicles \u00a7 833 (NCI4th)\u2014 driving while impaired \u2014 reasonable and articulable suspicion for stop\nA highway patrolman had a reasonable and articulable suspicion for stopping defendant\u2019s vehicle where he observed defendant driving on the center line and weaving back and forth within his lane for 15 seconds at 2:00 a.m. on a road near a nightclub. Looking at the totality of the circumstances, the evidence is sufficient to form a suspicion of impaired driving in the mind of a reasonable and cautious officer.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 296-311.\nWhat amounts to violation of drunken-driving statute in officer\u2019s \u201cpresence\u201d or \u201cview\u201d so as to permit warrant-less arrest. 74 ALR3d 1138.\n2. Evidence and Witnesses \u00a7 1832 (NCI4th)\u2014 driving while impaired \u2014 notification of rights\nA defendant stopped for driving while impaired was adequately notified of his rights as required by N.C.G.S. \u00a7 20-16.2(a) where defendant was informed of his rights, signed a form containing those rights, submitted to chemical analysis, and the record contains no evidence that defendant refused to submit to the test.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 304.\n3. Evidence and Witnesses \u00a7 1812 (NCI4th)\u2014 driving while impaired \u2014 printed results of test \u2014 record produced by machine\nThe trial court did not err in a prosecution for driving while impaired by denying defendant\u2019s motion to suppress the results of his chemical analysis where defendant argued that the trooper did not record the printed results of the test or provide defendant with a copy prior to trial as mandated by N.C.G.S. \u00a7 20-139.1(e) but the required information was supplied on the test card printed by the machine after the test was performed, which the trooper gave to defendant. The reliability and accuracy of current blood alcohol testing methods was recognized by State v. Smith, 312 N.C. 361, and the record produced by the machine is sufficient to meet the statutory requirements.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 122-132, 305-308, 375, 377-380, 384.\n4. Evidence and Witnesses \u00a7 1812 (NCI4th)\u2014 driving while impaired \u2014 breathalyzer results \u2014 copy furnished to defendant\nThe trial court did not err in a prosecution for driving while impaired by admitting breathalyzer results where defendant argued that the trooper failed to provide him with a copy of his breathalyzer results but the trooper testified that he gave defendant a copy of the rights and read them to him.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 307, 377.\n5. Evidence and Witnesses \u00a7 1830 (NCI4th)\u2014 driving while impaired \u2014 calibration of breathalyzer\nThe trial court did not err in a driving while impaired prosecution by admitting breathalyzer results where defendant argued that the State did not present sufficient evidence of instrument calibration, but the trooper testified that as part of his preparation of the machine he \u201cinsured that the instrument calibration checked out accurately\u201d and defendant failed to cross-examine the trooper regarding the specifics of his instrument calibration.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 307, 377.\n6. Automobiles and Other Vehicles \u00a7 843 (NCI4th)\u2014 driving while impaired \u2014 date of offense \u2014 variance in testimony\nThere was not a fatal variance in a driving while impaired prosecution concerning events on the 5th of June which the trooper testified occurred on the 25th. Defendant testified that the events occurred on the 5th.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 375-380.\nCough medicine as \u201cintoxicating liquor\u201d under DUI statute. 65 ALR4th 1238.\nAppeal by defendant from judgment entered 29 July 1994 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 22 January 1996.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T Avery, III, for the State.\nJames Hite Avery Clark & Robinson, by Leslie S. Robinson, for defendant-appellant." }, "file_name": "0596-01", "first_page_order": 632, "last_page_order": 638 }