Opinion
No. 07-48.
Filed August 7, 2007.
Gaston County No. 05 CRS 21702.
Appeal by defendant from judgment entered 18 August 2006 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 23 July 2007.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Charlotte Gail Blake, for defendant-appellant.
Ronald Lee Wilson ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of driving while impaired. We find no error.
The State presented evidence tending to show that on 7 December 2005, Trooper Barry D. Michael ("Trooper Michael") of the North Carolina Highway Patrol observed a 1993 Ford automobile almost collide with the trooper's patrol car. Trooper Michael turned his vehicle around and followed the Ford and observed the Ford swerve out of its lane of travel and cross the double yellow dividing lines twice. Trooper Michael conducted a traffic stop of the Ford, which was occupied by a driver, identified as defendant. Trooper Michael observed that defendant's speech was slurred, there was a strong odor of alcohol on defendant's breath, defendant's eyes were bloodshot, red and glassy, defendant was slow in retrieving his driver's license, and defendant was unsteady on his feet. Defendant admitted to Trooper Michael that he drank one beer at a friend's house. Defendant performed poorly on the field sobriety tests and did not correctly count backwards from the number 48 to the number 36. He also counted incorrectly on the fingertip hand/eye coordination test. Defendant was arrested and charged with driving while impaired. Defendant failed to submit a sufficient breath sample to permit a determination of his blood alcohol concentration. Trooper Michael recorded that defendant willfully refused to submit to a chemical analysis of breath.
Defendant testified and denied that he refused to blow into the device. He asserted he could not give a sufficient sample of breath due to asthma. Although he admitted he had consumed one beer, he denied his inability to successfully perform the sobriety tests or any other visible or observable manifestations of impairment. Defendant explained that he occasionally had red eyes due to allergies. Defendant also stated that he offered to submit a blood sample but the officers just laughed at him. Defendant attributed his faulty driving to back pain he was experiencing.
Defendant was found guilty in district court of driving while impaired and appealed to superior court. In superior court, the jury found defendant guilty of driving while impaired and the court sentenced the defendant to a minimum term of 6 months to a maximum term of 6 months in the North Carolina Department of Correction. Defendant's sentence was suspended and he was placed on supervised probation for 24 months. As a special condition of his probation, defendant was to serve ten days in the custody of the Sheriff of Gaston County. Defendant appeals.
Defendant contends the court erred by allowing Trooper Michael to testify that asthma has no effect on a person's ability to provide a sufficient breath sample and to express an opinion that defendant's inability to provide the breath sample was an attempt to manipulate the Intoxilyzer machine. Defendant argues the officer had only one month of experience at the time and therefore was not qualified to give this testimony.
Defendant interposed only a general objection to the testimony and failed to move to strike the testimony. "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(b) (2006). A general objection is insufficient to preserve an issue for full appellate review and any review must be conducted under the plain error standard. State v. Hammett, 361 N.C. 92, 98, 637 S.E.2d 518, 522 (2006). Under plain error analysis, we do not disturb the judgment of the trial court unless we are convinced the jury would probably have reached a different verdict absent the error. State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). We are not persuaded that the admission of this testimony caused the jury to find defendant guilty of driving while impaired. Trooper Michael testified without objection by defendant that defendant would breathe into the machine enough to cause a tone to sound but would stop breathing into the machine at the point when the tone sounded, and thus the machine could never obtain a sufficient breath sample for testing. Trooper Michael also subsequently testified, without objection, that in his opinion defendant was trying to manipulate the instrument. "It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character." State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979).
In addition, defendant admitted that his vehicle crossed the center line and that the odor of alcohol could have been on his person because he consumed beer at a friend's house that evening. "[A]n odor [of alcohol], standing alone, is no evidence that [a driver] is under the influence of an intoxicant, and the mere fact that one has had a drink will not support such a finding." Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 793 (1970) (internal citation omitted) (emphasis in original). However, evidence that one has been drinking, added to evidence of one's faulty driving and impairment of physical or mental faculties, is prima facie evidence that a defendant is driving while impaired. State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965); State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261 (2004). Moreover, defendant failed to submit a sufficient sample of breath to permit a chemical analysis of breath. The refusal to submit to an Intoxilyzer breath analysis is admissible as substantive evidence of a defendant's guilt of driving while impaired. N.C. Gen. Stat. § 20-139.1(f)(2005).
Defendant failed to present arguments for his remaining assignments of error. Therefore, they are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2006). Accordingly, we find no error.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).