State v. Davis, 37 N.C. App. 735

State v. Davis

37 N.C. App. 735 | N.C. Ct. App. | 1978

VAUGHN, Judge.

Defendant assigns as error the court’s refusal to charge the jury that it might find him guilty of a violation of G.S. 20-140(c). That section provides:

“(c) Any person who operates a motor vehicle upon a highway or public vehicular area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended.”

The application of this statute is illustrated by opinions of this Court in State v. Burrus, 30 N.C. App. 250, 226 S.E. 2d 677 (1976) and State v. Pate, 29 N.C. App. 35, 222 S.E. 2d 741 (1976). In the Burrus case, the driver was found passed out behind the wheel of his car after it had broken through a highway barrier. There was uncontradicted evidence that he had been drinking but the degree of his intoxication was a question for the jury. The Court held that in such a case it was error not to instruct the jury concerning the possible verdict of reckless driving after consuming such quantity of intoxicating liquor as directly and visibly affects the operations of a motor vehicle. In State v. Pate, on the other hand, the defendant was found behind the wheel of his truck after an accident. There was evidence that he had been drinking. There was also uncontradicted evidence that the collision occurred when an oncoming car crossed the center line and struck his truck. This Court held that where the record “is devoid of any evidence tending to show that defendant’s consumption of intoxicating liquor directly and visibly affected his operation of his motor vehicle immediately prior to his arrest for driving under the influence” the judge correctly omitted instructions with respect to reckless driving. State v. Pate, supra, at 37.

*737In this case defendant, who had obviously been drinking, was observed driving at an excessive speed with at least half the car over the center line at times and weaving severely. This was some evidence from which a jury might find that defendant was driving after consuming “such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle.” The jury should, therefore, have been instructed concerning the statutory offense of reckless driving under G.S. 20-140(c), and the failure of the court to do so was prejudicial error.

New trial.

Judges Martin and Mitchell concur.