25 N.C. App. 552 | N.C. Ct. App. | 1975
By motions for directed verdict of not guilty, for nonsuit, and for dismissal, defendant challenged the sufficiency of the evidence to take the case to the jury. The State presented the testimony of two State Highway Patrolmen. Patrolman Chap-
The State’s evidence was amply sufficient to require submission of the case to the jury. Such inconsistencies and discrepancies as existed in the State’s evidence were for the jury to resolve and would not warrant nonsuit. 2 Strong, N. C. Index 2d, Criminal Law, § 104. Defendant’s assignments of error directed to the denial of his various motions challenging the sufficiency of the evidence are overruled.
Defendant assigns error to denial of his motions to suppress all evidence as to results of the breathalyzer test. In this connection defendant contends that Patrolman Newberry, who admistered the breathalyzer test, was an “arresting officer” and therefore was disqualified to administer the test under the proviso to G.S. 20-139.1 (b) which provides “that in no case shall the arresting officer or officers administer said test.” The evidence, both that presented before the jury and upon a voir dire examination before the judge, disclosed the following: After Patrolman Chappell stopped defendant and observed his condition, he placed defendant under arrest and put defendant in his patrol car. He then radioed to Patrolman Newberry, who was qualified to administer the breathalyzer test, and asked him to come in to administer the test. When Newberry received this
This evidence fully supports the trial court’s ruling that Newberry was not an arresting officer so as to be disqualified by the proviso to G.S. 20-139.1 (b) from administering the breathalyzer test. State v. Stauffer, 266 N.C. 358, 145 S.E. 2d 917 (1966), cited and relied on by defendant, is clearly distinguishable on its facts. There, the officer who administered the test was the very person who first noticed the unusual manner of driving of the defendant in that case, who stopped the automobile, and who first approached the stopped vehicle. Clearly in that case the officer involved was “present at the scene of the arrest for the purpose of assisting in it, if necessary.” 266 N.C. at 359. Here, the defendant was already under arrest and was seated in the patrol car of the arresting officer when Newberry first arrived on the scene. Newberry had not been called to the scene for any purpose of assisting in the arrest and he in no way did assist in the arrest. He arrived at the scene merely because it happened to be on his direct route to the police station, and he stopped there solely to assist in moving the defendant’s car out of the way of traffic, not to assist in the arrest, which was already fully accomplished. The fact that Newberry testified on cross-examination by defendant’s counsel that “[i]f trouble had developed with the defendant [he] would have assisted Mr. Chappell with that too,” did not make him an arresting officer in this case. No such trouble did develop nor does anything in the evidence suggest that Chappell had any reason to anticipate that it might or that Newberry was on the scene for any such eventuality. On the contrary, Chappell testified
Finally, the evidence discloses that the test was administered in compliance with all applicable statutory requirements. In connection with the two requirements made by G.S. 20-139.1 (b) for the breathalyzer test to be considered valid, defendant stipulated that Officer Newberry was “a licensed operator and possessed the prerequisite permit at the time he administered the test to this defendant,” and Newberry testified “that he did administer the breathalyzer test to Mr. Dail on this occasion according to the methods and rules approved by the North Carolina Commission for Health Services.” The results of the test were properly admitted in evidence. State v. Powell, 279 N.C. 608, 184 S.E. 2d 243 (1971).
We have carefully reviewed defendant’s remaining assignments of error, and find no prejudicial error.
No error.