{
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  "name": "STATE OF NORTH CAROLINA v. THOMAS DANIEL LOCKAMY",
  "name_abbreviation": "State v. Lockamy",
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    "judges": [
      "Judges Whichard and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS DANIEL LOCKAMY"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Chief Judge.\nDefendant was convicted under G.S. 20-138(b), which makes it a crime to operate a vehicle when the amount of alcohol in the blood is .10 percent or more by weight. Defendant now contends that nothing in the Record shows that his blood alcohol level was measured by weight.\nThe trial judge instructed the jury that the results from the breathalyzer indicated that the amount of alcohol in defendant\u2019s blood was ten one hundredths of one percent by weight. Defendant contends that this instruction was unsupported by the evidence and that the charge against him should be dismissed as a matter of law. We disagree.\nThe breathalyzer test in the instant case was administered by a trained, licensed breathalyzer operator. The results from such test, showing the amount of alcohol in defendant\u2019s blood to be .10 percent were competent and admissible. G.S. 20-139.1; State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165 (1967).\nDefendant cites cases from Missouri and Wisconsin holding that tests measuring alcohol in the blood by volume, rather than by weight, are inadmissible evidence. See State v. Carwile, 441 S.W. 2d 763 (Mo. Ct. App. 1969); State v. Corsiglia, 435 S.W. 2d 430 (Mo. Ct. App. 1968); State v. Rodell, 17 Wis. 2d 451, 117 N.W. 2d 278 (1962). The holdings in the Corsiglia and Carwile cases, which defendant relies on, were based on a Missouri statute, since amended, that provided that the percent of alcohol in the blood was based on milligrams of alcohol per milligrams of blood. The amended Missouri statute now provides for a weight/volume ratio of alcohol to blood. See State v. Sinclair, 474 S.W. 2d 865 (Mo. Ct. App. 1971). Similarly, the Wisconsin statute, since amended, provides for a measurement of blood alcohol in terms of grams of alcohol per liters of breath. See Wis. Stat. Ann. \u00a7 885.235 (West 1983 supp.). Like the amended Missouri and Wisconsin statutes, our statute provides for a weight/volume ratio: \u201cThe percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 cubic centimeters of blood.\u201d G.S. 20-139.1.\nIn this country, we measure samples of blood alcohol by volume, and not by weight, and the results of blood alcohol tests are usually given as weight/volume and not weight/weight. Commonwealth v. Brooks, 366 Mass. 423, 431, 319 N.E. 2d 901, 906 (1974), citing Harger, Medicolegal Aspects of Chemical Tests of Alcoholic Intoxication, 39 J. Crim. L. and Criminology, 402 (1948). All the widely used testing instruments that report in terms of \u2018percentage\u2019 or \u2018percentage by weight\u2019 of alcohol in the blood actually use weight/volume percentage qualification. Id. at 431, 319 N.E. 2d at 907.\nIn light of G.S. 20-139.1, which adopts the generally accepted method for measuring alcohol in a person\u2019s blood, the trial judge was correct in admitting into evidence the results of a breathalyzer test, properly administered, and in instructing the jury in regard to such evidence.\nIn his second Assignment of Error, defendant contends that the trial court erred in instructing the jury that they could return a possible verdict finding defendant guilty of operating a motor vehicle with a .10 percent or more blood alcohol level.\nG.S. 20-138 states, in pertinent part:\n(a) It is unlawful ... for any person who is under the influence of alcoholic beverages to drive or operate any vehicle\n(b) It is unlawful for any person to operate any vehicle . . . when the amount of alcohol in such person\u2019s blood is 0.10 percent or more by weight ... An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence.\nDefendant contends that G.S. 20438(b) is not a lesser included offense of G.S. 20438(a) and that, therefore, he was deprived of his constitutional rights to notice and due process of law when he was charged under subsection (a) of the statute and convicted under subsection (b).\nIt is well-recognized in North Carolina that when a defendant is indicted for a criminal offense, he may be convicted of the charged offense or of a lesser included offense when the greater offense charged contains all the essential elements of the lesser offense. See, e.g., State v. Richardson, 279 N.C. 621, 185 S.E. 2d 102 (1971); State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970). Although driving with a blood alcohol level of .10 percent or more is not necessarily included in the offense of driving under the influence, nevertheless, the General Assembly has expressly declared that it be treated as a lesser included offense. This Court has held that G.S. 20438(b) is a constitutional exercise of police power by the General Assembly. State v. Luckey, 54 N.C. App. 178, 282 S.E. 2d 490 (1981), appeal dismissed, 304 N.C. 731, 288 S.E. 2d 381 (1982); State v. Basinger, 30 N.C. App. 45, 226 S.E. 2d 216 (1976). We see no reason to part from such holding.\nIn State v. Basinger, supra, we explained that even though evidence of blood alcohol level, necessary under G.S. 20438(b), was not required to convict under G.S. 20438(a), such evidence was, nevertheless, competent and could lead to a conviction under subsection (a). When the State produces evidence of a defendant\u2019s breath or blood, a defendant is thereby put on notice by statute that he may be convicted of either G.S. 20438(a) or (b). See id.\nDefendant, in this case, was charged with operating a motor vehicle while under the influence of alcoholic beverages in violation of G.S. 20-138. By such charge and by the evidence produced at trial, defendant received notice that he could be convicted under subsection (b) of the named statute. The judge was correct in instructing the jury on the possibility of such a verdict.\nDefendant lastly contends that the trial court erred in its definition of reasonable doubt. As part of his charge to the jury, the judge instructed:\nThe State must prove to you that the defendant is guilty beyond a reasonable doubt.\n[Now, this does not mean satisfied beyond any doubt, nor satisfied beyond all doubt, nor does it mean satisfied beyond a shadow of a doubt, or some vain, imaginary, or fanciful doubt. A reasonable doubt is not a doubt suggested by the ingenuity of counsel or by your own ingenuity not legitimately warranted by the evidence. A reasonable doubt is not a mere possible doubt for most things that relate to human affairs or ultimately some possible or imaginary doubt. A reasonable doubt is one based on common sense and reason generated by the insufficiency of proof.]\nAbsent a request, the trial judge is not required to define reasonable doubt and if he undertakes to give such definition, the law does not require any set formula. See State v. Wells, 290 N.C. 485, 226 S.E. 2d 325 (1976); State v. Hammonds, 241 N.C. 226, 85 S.E. 2d 133 (1954). The jury instruction in the instant case was in substantial accord with instructions on reasonable doubt approved by this Court and the Supreme Court in prior cases. See State v. Faircloth, 297 N.C. 100, 253 S.E. 2d 890, cert. denied, 444 U.S. 874, 100 S.Ct. 156, 62 L.Ed. 2d 102 (1979); State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940). We do not think the jury was misled or confused by such instruction. See State v. Ward, 286 N.C. 304, 210 S.E. 2d 407 (1974), modified, 428 U.S. 903, 96 S.Ct. 3206, 49 L.Ed. 2d 1207 (1976); State v. Hammonds, supra.\nDefendant also argues that the trial judge erred in instructing that a reasonable doubt is generated by \u201cinsufficiency of proof\u2019 and in failing to instruct that such doubt could arise \u201cout of the evidence.\u201d While it is error to instruct that a reasonable doubt arises from the evidence without also instructing that such doubt can arise from lack of evidence, an instruction such as the one in this case includes both propositions. See State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976); State v. Hammonds, supra. \u201cInsufficiency of proof\u2019 refers to an insufficiency arising from the evidence or from insufficiency of the evidence. 290 N.C. at 399, 226 S.E. 2d at 664. Defendant was not prejudiced by such instruction.\nNo error.\nJudges Whichard and Phillips concur.",
        "type": "majority",
        "author": "VAUGHN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Myron C. Banks, Special Deputy Attorney General, for the State.",
      "Brenton D. Adams, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS DANIEL LOCKAMY\nNo. 834SC19\n(Filed 15 November 1983)\n1. Automobiles and Other Vehicles 8 126.2\u2014 driving with blood alcohol content of .10 percent by weight \u2014 sufficiency of breathalyzer results\nIn light of O.S. 20-139.1 which provides that \u201c[t]he percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 cubic centimeters of blood,\u201d evidence that a breathalyzer test showed the amount of alcohol in defendant\u2019s blood to be .10 percent was sufficient to support conviction of defendant for operating a motor vehicle with a blood alcohol content of .10 percent or more by weight although there was nothing in the record to show that defendant\u2019s blood alcohol level was measured by weight.\n2. Automobiles and Other Vehicles \u00a7 120\u2014 indictment for driving under the influence-conviction of driving with blood alcohol content of .10 percent\nDefendant was not deprived of his constitutional rights to notice and due process when he was indicted under G.S. 20-138(a) for driving under the influence of intoxicants and was convicted under G.S. 20-138(b) of driving with a blood alcohol content of .10 percent or more.\n3. Criminal Law 8 112.1\u2014 instructions on reasonable doubt from \u201cinsufficiency of proof\u2019\nThe trial court did not err in instructing that a reasonable doubt is generated by \u201cinsufficiency of proof\u2019 without instructing further that such doubt could arise \u201cout of the evidence\u201d since the court used the words \u201cinsufficiency of proof\u2019 to refer to an insufficiency arising out of the evidence or out of the lack of evidence.\nAppeal by defendant from Brown, Judge. Judgment entered 29 September 1982 in Superior Court, SAMPSON County. Heard in the Court of Appeals 26 September 1983.\nDefendant was charged pursuant to G.S. 20-138 with operating a motor vehicle while under the influence of alcoholic beverages. From a jury verdict convicting him of operating a motor vehicle with a .10 percent or more blood alcohol level, defendant appeals.\nThe State\u2019s evidence tended to show: At about 5:45 p.m. on 1 April 1982, State Highway Patrolman Sherwood Allcox was patrolling U. S. 701 when he observed defendant\u2019s vehicle cross over the center dividing line of the highway\u2019s two southbound lanes four or five times. He also observed that defendant\u2019s vehicle was traveling considerably slower than the posted speed limit of 55 m.p.h. Trooper Allcox stopped defendant and detected an odor of alcohol on or about defendant\u2019s clothing. He also observed that defendant\u2019s face was red and his eyes were watery. The Trooper placed defendant under arrest for driving under the influence.\nAt the magistrate\u2019s office that same day, Trooper Allcox observed Mr. Lockamy in a performance test. Mr. Lockamy was unsure and swaying in balance and walking tests. At 6:17 p.m., State Highway Patrolman J. B. Nipper, a trained and licensed breathalyzer operator, administered a breathalyzer exam to defendant that showed the amount of alcohol in defendant\u2019s blood to be .10 percent.\nThe defendant\u2019s evidence tended to show: On 1 April, defendant was driving back from Florida to Clinton, North Carolina, his home. Defendant had left for Florida two days before and had not slept sinjie that time. On 1 April, some time prior to 1:00 p.m., defendant had drunk two beers. He had also drunk two bottles of cough medicine because he had a bad cold. He had not consumed any other alcoholic beverages. Also, defendant had high blood pressure and had not taken his high blood pressure pills for three days.\nAttorney General Edmisten, by Myron C. Banks, Special Deputy Attorney General, for the State.\nBrenton D. Adams, for defendant appellant."
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