{ "id": 8550193, "name": "STATE OF NORTH CAROLINA v. JOHNNY FRANK HURLEY, JR.", "name_abbreviation": "State v. Hurley", "decision_date": "1976-02-04", "docket_number": "No. 7519SC766", "first_page": "478", "last_page": "480", "citations": [ { "type": "official", "cite": "28 N.C. App. 478" } ], "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": "184 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571466 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0608-01" ] }, { "cite": "179 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555654 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0726-01" ] } ], "analysis": { "cardinality": 338, "char_count": 5610, "ocr_confidence": 0.535, "pagerank": { "raw": 2.8651142789705816e-07, "percentile": 0.842307022532974 }, "sha256": "864b805a88cd9d0a027a3a261369219a1cc6f032818e0a519333cebb01417bac", "simhash": "1:c13fd1bd6f554d39", "word_count": 915 }, "last_updated": "2023-07-14T22:58:46.500479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Morris concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNY FRANK HURLEY, JR." ], "opinions": [ { "text": "BROCK, Chief Judge.\nDefendant concedes that if there is no error in his trial and conviction in case No. 75CR157, there is likewise no error in the revocation of his probation in case No. 71CR2314.\nThe primary thrust of defendant\u2019s appeal is that the trial court committed error in allowing the breathalyzer test results in evidence. Defendant sought and was denied a voir dire hearing upon whether the breathalyzer operator followed each and every procedural step prescribed by the Commission for Health Services. It seems to be defendant\u2019s contention that the trial judge was obligated to permit the voir dire; that the State.was obligated to prove that the operator had followed each and every procedural step prescribed; that the defendent was entitled, on voir dire, to cross-examine the operator upon the manner in which he followed each and every procedural step; and that the trial judge, before allowing the test results in evidence, must find that the operator followed each and every procedural step prescribed. We reject the argument that such a voir dire and findings are required.\nWe have reviewed the records, the arguments, and opinions in State v. Powell, 10 N.C. App. 726, 179 S.E. 2d 785 (1971), and in State v. Powell, 279 N.C. 608, 184 S.E. 2d 243 (1971). It appears that the present appeal is merely \u201cthat same old raccoon with nothing new except another ring around its tail.\u201d\nThe operator in this case testified that he held a valid permit issued by the Department of Human Resources and that he followed the prescribed techniques as set out by the Division of Health Services. This evidence satisfied the requirements of G.S. 20-139.1 and entitled the test results to be admitted into evidence. Obviously defendant was not bound by this testimony and, in the presence of the jury, was entitled to cross-examine the operator within reasonable limits and to impeach his testimony if possible. Actually, in this case, defense counsel was allowed wide latitude in cross-examination of the operator, and such cross-examination was conducted at length. It appears the jury was not impressed that the operator\u2019s testimony had been impeached.\nDefendant\u2019s argument that he was entitled to have the alternate issue of reckless driving submitted to the jury is not supported by the evidence.\nWe have considered all of defendant\u2019s assignments of error and find them to be without merit.\nNo error in case No. 75CR157.\nAffirmed in case No. 71CR2314.\nJudges Britt and Morris concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.", "Gerald R. Chandler, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY FRANK HURLEY, JR.\nNo. 7519SC766\n(Filed 4 February 1976)\nAutomobiles \u00a7 126; Criminal Law \u00a7 64 \u2014 breathalyzer results \u2014 necessity for voir dire\nIt is not necessary for the trial court in a drunken driving case to conduct a voir dire hearing and find that a breathalyzer operator followed each and every procedural step prescribed by the Division of Health Services before the breathalyzer results can be admitted in evidence, the operator\u2019s testimony that he held a valid permit issued by the Department of Human Resources and that he followed the prescribed techniques as set out by the Division of Health Services being sufficient for the admission of the breathalyzer results. G.S. 20-139.1 (b).\nAppeal by defendant from Rousseau, Judge. Judgments entered 10 April 1975 in Superior Court, Montgomery County. Heard in the Court of Appeals 20 January 1976.\nIn case No. 75CR157 under a warrant, proper in form, defendant was convicted in District Court of a violation of G.S. 20-188 (b); i.e., operating a motor vehicle upon a highway within this State when the amount of alcohol in his blood was 0.10 percent or more by weight. Upon his appeal to the Superior Court, defendant was tried de novo by a jury.\nThe State\u2019s evidence tended to show that on 17 January 1975, after dark, defendant entered and drove along highway 220 with only the vehicle parking lights on. Trooper Coble of the State Highway Patrol stopped defendant and advised him that the vehicle\u2019s headlights were not in operation. Upon checking defendant\u2019s driver\u2019s license, the trooper observed that defendant appeared to be intoxicated. Defendant was arrested and transported to the Highway Patrol office in Troy. The defendant was given a breathalyzer test which indicated an alcoholic content of 0.15 percent in his blood.\nDefendant\u2019s evidence tended to show that just prior to his arrest he was observed by two persons, and shortly after his arrest he was observed by another and that none of the three observed anything to cause them to think he was intoxicated. Defendant did not testify.\nThe jury found defendant guilty of operating a motor vehicle upon a highway within this State when the amount of alcohol in his blood was 0.10 percent or more by weight. A suspended sentence was imposed, and defendant appealed.\nFollowing the foregoing conviction, the probation officer reported defendant for the violation of terms of probation specified in a judgment entered in case No. 71CR2314 in Superior Court on 26 October 1972. The specific condition of probation alleged to have been violated was that defendant not operate a motor vehicle \u201cwhen he has consumed any alcoholic beverage.\u201d The evidence offered at the probation revocation hearing was the record of the conviction in case No. 75CR157. Upon appropriate findings of fact, the trial judge revoked the probation and ordered the twelve-month probationary sentence into effect. Defendant appealed from the revocation of probation.\nAttorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nGerald R. Chandler, for the defendant." }, "file_name": "0478-01", "first_page_order": 506, "last_page_order": 508 }