#### STATE OF NORTH CAROLINA v. JASON LEE COONEY

No. 84A85

(Filed 4 June 1985)

APPEAL by state pursuant to N.C.G.S. § 7A-30(2) from a decision of a divided panel of the Court of Appeals, 72 N.C. App. 649, 325 S.E. 2d 15 (1985), reversing defendant’s conviction at the 25 January 1984 Session of New Hanover Superior Court, Judge Llewellyn presiding.

Lacy H. Thornburg, Attorney General, by Isham B. Hudson, Jr., Special Deputy Attorney General, for the state appellant.

D. Webster Trask for defendant appellee.

PER CURIAM.

Defendant was convicted at trial of driving while his operator’s license was revoked on the theory that he operated his vehicle within three days after consuming an alcoholic beverage in violation of an earlier issued restricted driving privilege. See N.C.G.S. § 20-179.3(j). A majority of the Court of Appeals, Chief Judge Hedrick and Judge Parker, with Judge Whichard dissenting, concluded the state’s evidence was insufficient to be submitted to the jury and the trial court erred in not granting defendant’s motion to dismiss. We agree. The decision of the Court of Appeals is

Affirmed.