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    "judges": [
      "Judges McCULLOUGH and TYSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LAWYER EDWARD GREGORY"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nDefendant was found guilty of habitual driving while impaired (DWI) and driving while license revoked (DWLR). He was sentenced to a minimum of 19 months and a maximum of 23 months for his habitual DWI conviction and to 120 days for the DWLR conviction. The trial court suspended defendant\u2019s DWLR sentence on the condition that he be placed on probation for 36 months with intensive probation for 6 months.\nThe State\u2019s evidence tended to show that in the early morning hours of 20 June 2001, Deputy Sheriff Brian Clifton of the Johnston County Sheriff\u2019s Department was on routine patrol traveling north on Brightleaf Boulevard in Smithfield when he observed a vehicle traveling in the same direction make an \u201cabrupt\u201d movement from the right lane into the left turn lane without signaling. Deputy Clifton pulled behind the vehicle and followed it as it made a left turn and accelerated to 50 miles per hour in a 25 mile-per-hour zone. After Deputy Clifton activated his siren and blue lights to initiate a stop, the vehicle \u201cjammed on the brakes approximately three times, hard stops.\u201d The vehicle turned onto a side street and then stopped in the middle of the lane of traffic rather than pulling off the edge of the road.\nDeputy Clifton testified that, as he approached the vehicle, the driver\u2019s side window was down, and he noticed a strong odor of alcohol coming from inside the vehicle. He also testified that after he determined defendant was the driver, he asked him if he had been drinking, and defendant responded \u201cthat he had a few beers about an hour ago.\u201d Deputy Clifton asked defendant if he had a driver\u2019s license, and defendant responded that he did not. Deputy Clifton then asked defendant to step back to the patrol car to determine the status of defendant\u2019s driver\u2019s license.\nDeputy Clifton further testified that, as defendant began walking towards the patrol car, \u201c[h]e staggered, [and] placed his left hand on the side of the van\u201d to steady himself. When defendant got into the patrol car, Deputy Clifton noticed defendant had a strong odor of alcohol, red, glassy eyes and slurred speech. As Deputy Clifton administered two alco-sensor tests, he received a report that defendant\u2019s driver\u2019s license had been revoked. Deputy Clifton then informed defendant that he was going to be placed under arrest for DWI and DWLR and that the vehicle would be seized as a result of the incident. Deputy Clifton testified that, at this point, defendant became \u201cbelligerent\u201d and \u201ccombative\u201d and \u201cdidn\u2019t want to cooperate in any way.\u201d Deputy Clifton further testified that he did not request defendant to perform any field sobriety tests because he \u201cdidn\u2019t feel it was in his [defendant\u2019s] best interest. . . [since] it wouldn\u2019t be safe.\u201d\nDeputy Clifton took defendant to the intoxilyzer room of the Smithfield Police Department, where Officer Greg Franklin began to read defendant his intoxilyzer rights. Deputy Clifton testified that defendant argued with Officer Franklin, cursed and became \u201cvery belligerent, uncooperative, [and] extremely combative . . . .\u201d After Officer Franklin finished reading defendant his intoxilyzer rights, defendant refused to sign the intoxilyzer rights form or to submit to the intoxilyzer test.\nDeputy Clifton read defendant his Miranda rights and asked him to answer questions for the alcohol incident report, but defendant refused. Deputy Clifton and Officer Franklin then took defendant to the magistrate to be charged.\nAt trial, Deputy Clifton testified that, in his opinion, defendant had consumed a sufficient quantity of an impairing substance to appreciably impair his mental and physical faculties. Officer Franklin similarly testified that, in his opinion, defendant was appreciably impaired based on his interaction with defendant in the intoxi-lyzer room.\nDefendant first contends the trial court erred in denying his motion to dismiss for insufficient evidence. Specifically, defendant argues that, because the State\u2019s evidence did not include an intoxilyzer test or any field sobriety tests, it failed to present sufficient objective evidence that he was appreciably impaired to sustain his conviction for DWI.\nIn ruling on a motion to dismiss for insufficient evidence, the trial court must determine whether substantial evidence of each element of the offense charged has been presented. State v. Carr, 122 N.C. App. 369, 470 S.E.2d 70 (1996). \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984) (citation omitted). The trial court must view all evidence in the light most favorable to the State and draw all reasonable inferences in the State\u2019s favor. State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994).\n\u201cA person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving . . . N.C. Gen. Stat. \u00a7 20-138.5(a) (2001). For a defendant to be guilty of driving while impaired under N.C. Gen. Stat. \u00a7 20-138.1 (2001), the State must prove \u201cthat defendant had ingested a sufficient quantity of an impairing substance to cause his faculties to be appreciably impaired.\u201d State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891 (1997) (citation omitted).\nAn intoxilyzer test and field sobriety tests are not required to establish a defendant\u2019s faculties as being appreciably impaired under N.C. Gen. Stat. \u00a7 20-138.1. See, e.g., State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000). Further, \u201cit is a well-settled rule that a lay person may give his opinion as to whether a person is intoxicated so long as that opinion is based on the witness\u2019s personal observation.\u201d Rich, supra, 351 N.C. at 398, 527 S.E.2d at 306 (citing State v. Lindley, 286 N.C. 255, 258, 210 S.E.2d 207, 209 (1974)). An officer\u2019s opinion that a defendant is appreciably impaired is competent testimony and admissible evidence when it is based on the officer\u2019s personal observation of an odor of alcohol and of faulty driving or other evidence of impairment. Rich, supra; Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970); State v. Hewitt, 263 N.C. 759, 140 S.E.2d 241 (1965). The refusal to submit to an intoxilyzer test also is admissible as substantive evidence of guilt on a DWI charge. State v. Pyatt, 125 N.C. App. 147, 479 S.E.2d 218 (1997).\nHere, Deputy Clifton testified that he observed defendant make an abrupt lane change without signaling, speed and \u201cjam\u201d on his brakes before stopping in the middle of a lane of traffic. He also testified that he noticed a strong odor of alcohol coming from defendant and that defendant had red, glassy eyes as well as slurred speech. Further, Deputy Clifton testified that defendant staggered when he walked to the patrol car and had to steady himself against his vehicle. Both Deputy Clifton and Officer Franklin testified that, in their opinions, defendant\u2019s faculties were appreciably impaired. Defendant also refused to submit to an intoxilyzer test after being read his intoxilyzer rights. Thus, based on this evidence of defendant\u2019s impairment, we hold the trial court did not err in denying defendant\u2019s motion to dismiss for insufficient evidence.\nIn his next assignment of error, defendant argues that the trial court erred in denying his motion in limine to suppress and bar the use of his prior DWI convictions. Defendant contends that N.C. Gen. Stat. \u00a7 8C-1, Rule 609 (2001) prohibits the use of prior DWI convictions for impeachment purposes when the convictions are \u201cunclassified\u201d misdemeanors.\nWe first note that Rule 609 permits impeachment by \u201cevidence that the witness has been convicted of a felony, or of a Class Al, Class 1, or Class 2 misdemeanor . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a). The classification of a DWI conviction involves a review of applicable statutes. N.C. Gen. Stat. \u00a7 20-138.1(d) states that \u201c[i]mpaired driving as defined in this section is a misdemeanor.\u201d N.C. Gen. Stat. \u00a7 15A-1340.23(a) (2001) provides that \u201c[i]f the offense is a misdemeanor for which there is no classification, it is as classified in G.S. 14-3.\u201d The relevant portion of N.C. Gen. Stat. \u00a7 14-3 (2001) states that\n[a]ny misdemeanor that has a specific punishment, but is not assigned a classification by the General Assembly pursuant to law is classified as follows, based on the maximum punishment allowed by law for the offense ... (1) If that maximum punishment is more than six months imprisonment, it is a Class 1 misdemeanor....\nN.C. Gen. Stat. \u00a7 14-3(a)(l). The maximum punishment permitted by statute for misdemeanor DWI is imprisonment for \u201ca minimum term of not less than 30 days and a maximum term of not more than 24 months.\u201d N.C. Gen. Stat. \u00a7 20-179(g) (2001). A careful reading of these statutes leads us to conclude that a DWT conviction is a Class 1 misdemeanor and, thus, is admissible for impeachment purposes under Rule 609(a). Therefore, we hold the trial court properly denied defendant\u2019s motion in limine to suppress his prior DWI convictions.\nWe have carefully reviewed defendant\u2019s remaining assignment of error and find it to be without merit.\nNo error.\nJudges McCULLOUGH and TYSON concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.",
      "Samuel L. Bridges for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LAWYER EDWARD GREGORY\nNo. COA02-278\n(Filed 17 December 2002)\n1. Motor Vehicles\u2014 DWI \u2014 sufficiency of evidence \u2014 no intoxi-lyzer \u2014 no field sobriety test\nThe failure of the State to present the results of intoxilyzer or field sobriety tests did not render the evidence insufficient for a DWI conviction where a deputy saw defendant make an abrupt lane change without signaling, speed, and jam on his brakes before stopping in the middle of traffic; the deputy noticed a strong odor of alcohol coming from the car and defendant had red, glassy eyes and slurred speech; defendant staggered when he walked to the patrol car and had to steady himself against his vehicle; defendant refused to submit to the intoxilyzer test; and both the deputy and the officer who attempted to give defendant an intoxilyzer test formed the opinion that defendant\u2019s faculties were appreciably impaired.\n2. Evidence\u2014 impeachment \u2014 prior DWI offenses\nThe trial court properly denied a motion in limine to suppress prior DWI convictions. A careful reading of the applicable statutes indicates that a DWI conviction is a Class 1 misdemeanor and is admissible for impeachment purposes under N.C.G.S. \u00a7 8C-1, Rule 609(a).\nAppeal by defendant from judgment entered 15 October 2001 by Judge Knox V. Jenkins, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 14 November 2002.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nSamuel L. Bridges for defendant-appellant."
  },
  "file_name": "0718-01",
  "first_page_order": 746,
  "last_page_order": 750
}
