State v. Shadding , 17 N.C. App. 279 ( 1973 )

194 S.E.2d 55 (1973) 17 N.C. App. 279

STATE of North Carolina
v.
Ralph Land SHADDING.

No. 727SC599.

Court of Appeals of North Carolina.

January 17, 1973. Certiorari Denied March 6, 1973.

Atty. Gen. Robert Morgan, by Asst. Attys. Gen. William B. Ray and William W. Melvin, for the State.

Farris & Thomas, by Robert A. Farris, Wilson, for the defendant.

Certiorari Denied by Supreme Court March 6, 1973.

BROCK, Judge.

Defendant first assigns as error the Court's refusal to grant a continuance after the Solicitor arraigned defendant upon a charge of second offense of driving under the influence, stating that defendant had previously been convicted of driving under the influence. At arraignment the solicitor merely read the warrant used in District Court. Defendant contends that this was prejudicial error since he was not convicted of second offense driving under the influence in District Court, and was not on trial for that charge in Superior Court. Assuming, without deciding, that the Solicitor's reading of the warrant was error, it does not constitute prejudicial error in this case. The Court clearly instructed the jury only on driving under the influence, first offense. The instruction, coupled with defendant's failure to show that a different result would likely have occurred, renders such error harmless.

Defendant assigns as error the Court's allowance of the following testimony by Sgt. Parrish: "at about 7:30 on that evening, we received a call, as a result of a call—"; and ". . . which led us to believe it might have been the car we were after." This evidence was admissible, not to prove the truth of the telephone conversation, which was not stated, but to explain the subsequent actions of the witness. This evidence was admissible to explain the location and observations of the police officer. See Stansbury, N.C. Evidence 2d, §§ 138, 141. This assignment of error is overruled.

Defendant contends it was error for the Court to admit into evidence the results of the breathalyzer test. Defendant argues that the test has no probative value since it was not timely made (given two hours after the arrest) and since defendant testified that he consumed alcohol after his arrest. There is no merit in defendant's contention that a breathalyzer test given two hours after an arrest has no probative value because it is not timely made. Likewise, there is no merit in defendant's contention that the test results lacked probative value because defendant testified he had consumed alcohol after his arrest. Whether defendant drank alcohol after his arrest was a jury question. The trial judge gave a proper instruction to the jury on this assertion. See State v. Cooke, 270 N.C. 644, 155 S.E.2d 165.

Defendant further contends that the breathalyzer test results were inadmissible because there was no evidence that defendant was advised of his right to have counsel or a witness present to view the taking of the test. Defendant does not contend that this is a constitutional right, but argues that it is specifically required by statute. G.S. § 20-16.2(a) provides that "the accused person shall be permitted to call an attorney and to select a witness to view for him the testing procedures; providing, however, that the testing procedures shall not be delayed for these purposes for a period of over 30 minutes from the time the accused person is notified of these rights." (Emphasis added.) It seems to be the clear legislative intent that the accused be notified of the right to call an attorney and to select a witness to view the breathalyzer test. The test can be delayed 30 minutes from the time of notification to the accused. Such rights of notification, explicitly given by statute, would be meaningless if the breathalyzer test results could be introduced into evidence despite non-compliance with the statute.

Upon objection by defendant to evidence of the results of a breathalyzer test upon the grounds that he had not been notified of his right to call an attorney and to select a witness to view the testing procedures in accordance with G.S. § 20-16.2(a), the trial court must conduct a hearing and find as a fact from the evidence whether defendant was so notified prior to the administering of the breathalyzer test. If it is found that defendant was so notified, the trial court must also find as a fact from the evidence whether the administering of the breathalyzer test was delayed (not to exceed thirty minutes from the time defendant was notified of such rights) to give defendant an opportunity to call an attorney and select a witness to view the testing procedures, or whether defendant waived such rights after being advised of them. If defendant was not notified of such rights, the results of the test are not admissible in evidence. On the other hand, if it is determined that he was advised of such rights, and did not waive them, the results of the test are admissible in evidence only if the testing was delayed (not to exceed thirty minutes) to give defendant an opportunity to exercise such rights.

Defendant specifically objected upon these grounds, but the State offered no evidence upon the question of whether defendant was advised of his rights under G.S. § 20-16.2(a). The failure to establish that defendant was accorded his statutory rights rendered the results of the breathalyzer test inadmissible in evidence, and its admission over objection constituted prejudicial error.

No error in case number 71CR2435 (driving after his license had been revoked).

New trial in case number 71CR2423 (operating a motor vehicle while under the influence of intoxicating liquor).

MALLARD, C. J., and BRITT, J., concur.