{
  "id": 11304756,
  "name": "STATE OF NORTH CAROLINA v. JOHN D. LIVINGSTON",
  "name_abbreviation": "State v. Livingston",
  "decision_date": "1974-07-03",
  "docket_number": "No. 7412SC545",
  "first_page": "346",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T16:09:41.671000+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Morris and Baley concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHN D. LIVINGSTON"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThe only issue on appeal is whether the court erred in denying defendant\u2019s motion for nonsuit. The thrust of defendant\u2019s argument is that since Officer Shambley did not state that defendant\u2019s physical or mental faculties were \u201cappreciably\u201d impaired, see State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688; State v. Combs, 13 N.C. App. 195, 185 S.E. 2d 8, the evidence was insufficient to take the case to the jury.\n\u201cAn odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking. Boehm v. St. Louis Public Service Co., 368 S.W. 2d 361 (Mo.). However, an odor, standing alone, is no evidence that he is under the influence of an intoxicant, Baldwin v. Schipper, 155 Colo. 197, 393 P. 2d 363, and the mere fact that one has had a drink will not support such a finding. McCarty v. Purser, 373 S.W. 2d 293 (Tex. Civ. App.). Notwithstanding, the \u2018 [\u00b6] act that a motorist has been drinking, when considered in connection with faulty driving ... or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. 20-138.\u2019 State v. Hewitt, 263 N.C. 759, 140 S.E. 2d 241.\u201d\nAtkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789.\nThe evidence in the case before us was sufficient prima facie to show a violation of the statute and thus to allow the jury to decide whether there was an appreciable impairment.\nNo error.\nJudges Morris and Baley concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by John R. Morgan, Associate Attorney, for the State.",
      "Rose, Thorp and Rand by Anthony E. Rand and Cherry and Grimes by Sol G. Cherry, attorneys for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHN D. LIVINGSTON\nNo. 7412SC545\n(Filed 3 July 1974)\nAutomobiles \u00a7 127\u2014 drunken driving \u2014 sufficiency of evidence \u2014 failure to state defendant\u2019s faculties \u201cappreciably\u201d impaired\nThe State\u2019s evidence was sufficient for the jury in a prosecution for drunken driving where an officer testified he saw defendant operating an automobile partly on the sidewalk and partly in the street, that defendant had an odor of alcohol about him, that defendant\u2019s face was \u201creal red,\u201d his eyes were bloodshot and his speech was slow and deliberate, that defendant walked unsteadily, and that in his opinion defendant had consumed enough of some type of intoxicating beverage to impair both his mental and physical faculties, notwithstanding the officer did not state that defendant\u2019s physical or mental faculties were \u201cappreciably\u201d impaired.\nAppeal by defendant from Canaday, Judge, 19 December 1973 Session of Superior Court held in Cumberland County.\nDefendant was charged with driving under the influence of liquor in violation of G.S. 20-138.\nEvidence for the State tended to show the following. At 1:45 a.m. on the morning of 2 March 1973, Patrolman R. E. Shambley of the Fayetteville Police Department saw defendant operating an automobile which was partly on the sidewalk and partly in the street. Upon stopping defendant, Shambley detected the odor of alcohol about him. Defendant\u2019s face was \u201creal red,\u201d and his eyes were \u201cbloodshot.\u201d When he walked, defendant \u201cwasn\u2019t real steady . . . and [had] a tendency to sway. ...\u201d Shambley also testified that defendant\u2019s speech was \u201cslow and deliberate.\u201d Defendant stated that he was not drunk. Shambley testified that in his opinion defendant \u201chad consumed enough of some type of intoxicating beverage to impair both his mental and physical faculties.\u201d\nDefendant offered no evidence.\nUpon a verdict of guilty, defendant was sentenced to a prison term of 90 days.\nAttorney General Robert Morgan by John R. Morgan, Associate Attorney, for the State.\nRose, Thorp and Rand by Anthony E. Rand and Cherry and Grimes by Sol G. Cherry, attorneys for defendant appellant."
  },
  "file_name": "0346-01",
  "first_page_order": 378,
  "last_page_order": 380
}