{
  "id": 8520883,
  "name": "STATE OF NORTH CAROLINA v. BILLY McDONALD",
  "name_abbreviation": "State v. McDonald",
  "decision_date": "1990-02-06",
  "docket_number": "No. 8920SC534",
  "first_page": "322",
  "last_page": "325",
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      "cite": "97 N.C. App. 322"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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  "cites_to": [
    {
      "cite": "N.C. Gen. Stat. \u00a7 20-138.1",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "opinion_index": -1
    },
    {
      "cite": "273 S.E.2d 264",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "opinion_index": 0
    },
    {
      "cite": "301 N.C. 683",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1981,
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    {
      "cite": "383 S.E.2d 419",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1989,
      "pin_cites": [
        {
          "parenthetical": "and cases cited therein"
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    {
      "cite": "95 N.C. App. 558",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8521889
      ],
      "year": 1989,
      "pin_cites": [
        {
          "parenthetical": "and cases cited therein"
        }
      ],
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      "case_paths": [
        "/nc-app/95/0558-01"
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    {
      "cite": "N.C. Gen. Stat. \u00a7 20-139.1",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "pin_cites": [
        {
          "page": "(b3)"
        }
      ],
      "opinion_index": 0
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  "analysis": {
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  "last_updated": "2023-07-14T17:09:00.422652+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Chief Judge HEDRICK and Judge ARNOLD concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BILLY McDONALD"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant brings forward a single assignment of error challenging the trial court\u2019s denial of his motion for mistrial. Defendant argues that the State\u2019s question regarding the lower result of the two breathalyzer tests improperly suggested to the jury that there was a test result higher than the result introduced into evidence. We find no error.\nN.C. Gen. Stat. \u00a7 20-139.1(b3) governs the admissibility of breathalyzer test results. It provides in pertinent part that duplicate sequential breath samples be taken and:\n(2) That the test results may only be used to prove a person\u2019s particular alcohol concentration if:\na. The pair of readings employed are from consecutively administered tests; and\nb. The readings do not differ from each other by an alcohol concentration greater than 0.02.\n(3) That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person\u2019s\u2019 alcohol concentration in any court . . . proceeding.\nA trial court \u201cmust declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings . . . resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C. Gen. Stat. \u00a7 15A-1061. It is well established, however, that the decision as to whether such prejudice has occurred within the meaning of the statute is addressed to the sound discretion of the trial judge. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419 (1989) (and cases cited therein). Consequently, a trial court\u2019s ruling on a motion for mistrial may not be disturbed on appeal absent an abuse of discretion. Id.\nApplying these standards to the present case, we conclude that defendant has failed to demonstrate error. Assuming arguendo that the prosecutor\u2019s question regarding the lower of the two breathalyzer test results was improper, the trial court promptly took appropriate corrective measures by sustaining defendant\u2019s objection as to the form of the question and instructing the jury to disregard it. Such measures were sufficient to cure any possible prejudice resulting from the prosecutor\u2019s question. See State v. Pruitt, 301 N.C. 683, 273 S.E.2d 264 (1981). We therefore conclude that the trial court did not abuse its discretion in denying defendant\u2019s motion for mistrial.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.",
      "Pollock, Fullenwider, Cunningham & Patterson, P.A., by Bruce T. Cunningham, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BILLY McDONALD\nNo. 8920SC534\n(Filed 6 February 1990)\nCriminal Law \u00a7 566 (NCI4th)\u2014 driving while impaired \u2014request for lower of two breathalyzer readings \u2014mistrial denied \u2014no abuse of discretion\nThe trial court did not abuse its discretion by denying defendant\u2019s motion for a mistrial in a prosecution for driving while impaired where the prosecutor asked a witness to state the lower of the two breathalyzer readings. Assuming that the question was improper, the trial court promptly took appropriate corrective measures by sustaining defendant\u2019s objection to the form of the question and instructing the jury to disregard it. N.C.G.S. \u00a7 20-139.1(b3).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 307; Criminal Law \u00a7\u00a7 291, 294.\nAPPEAL by defendant from Freeman, William H., Judge. Judgment entered 16 March 1989 in RICHMOND County Superior Court. Heard in the Court of Appeals 16 January 1990.\nDefendant was charged with driving while impaired in violation of N.C. Gen. Stat. \u00a7 20-138.1. Following conviction in the district court, defendant appealed to the superior court. At trial, the State sought to introduce evidence of a breathalyzer test administered to defendant by Trooper D. S. Newton. The record reveals the following pertinent exchange between the prosecutor and Trooper Newton:\nQ: After you finished preparing the [breathalyzer] instrument did the defendant furnish breath samples to be tested?\nA: Yes[.]\nQ: How many samples did the defendant furnish?\nA: Two.\nQ: [D]id you analyze each to determine the alcohol concentration of the defendant\u2019s body?\nA: Yes[.]\nQ: And would you state what the lower of the two readings showed the defendant\u2019s alcohol concentration to be?\nDefendant then objected and, out of the jury\u2019s presence, moved for a mistrial. The court sustained defendant\u2019s objection as to the form of the question, but denied defendant\u2019s motion for mistrial. When the jury returned, Judge Freeman instructed them to disregard the question regarding the lower of the two breathalyzer readings. The prosecutor then rephrased the question as follows:\nQ: Trooper Newton, what was the result of the breathalyzer test?\nA: Point ten.\nThe jury returned a verdict of guilty and the court sentenced defendant to sixty days\u2019 imprisonment, suspended, and imposed a fine of $100.00. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nPollock, Fullenwider, Cunningham & Patterson, P.A., by Bruce T. Cunningham, Jr., for defendant-appellant."
  },
  "file_name": "0322-01",
  "first_page_order": 350,
  "last_page_order": 353
}