77 N.C. App. 470 | N.C. Ct. App. | 1985
The defendant contends the court erred by failing to grant his motion to dismiss at the close of all the evidence. We disagree.
The evidence offered at trial tended to show that on 28 January 1984, at approximately 6:40 p.m., an accident occurred on Highway 21 in Yadkin County when a 1975 or 1976 Cutlass struck a vehicle operated by Steven Brown. Brown could not see who was driving the car but he was able to get the license number of the vehicle. Brown had also seen the defendant drive the car at some time prior to the accident. Mr. Brown called the State Highway Patrol and Trooper Vance was dispatched to investigate the accident. The trooper determined that Ms. Sadie Wall, the defendant’s mother, was the owner of the vehicle. When the trooper went to Ms. Wall’s residence neither the defendant nor the vehicle were at the residence. At approximately 8:45 p.m., the trooper found the defendant and the vehicle at Ron Stanley’s house. The defendant appeared to be impaired at that time. During questioning defendant admitted that he had consumed four eight-ounce
Defendant testifying in his own defense denied that he was involved in the accident. He testified he had consumed some beer between 1:00 p.m. and 4:00 p.m. and then went and talked to a girl at the Hardee’s in Yadkinville. He stated that he left the Hardee’s about 6:45 and drove up Highway 601 to his brother-in-law’s house. After he arrived there, he drank three beers within the space of thirty minutes. He was in bed at the house when the trooper arrived to inquire about the accident.
In determining whether the court erred in denying the defendant’s motion to dismiss, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference which can be drawn therefrom. State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). The defendant’s evidence, when not in conflict with the State’s evidence, may be used to explain or clarify the evidence offered by the State. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982).
Defendant, by his own admission, drank thirty-two ounces of beer within a three hour period and then proceeded to drive upon the public highways of our State. Defendant also testified that he had consumed only three beers after he reached his destination. Yet, the evidence showed that three hours and forty-five minutes after driving he still had a blood alcohol level of 0.13. This evidence, taken in the light most favorable to the State and giving the State the benefit of all inferences which could be drawn therefrom, was sufficient to survive defendant’s motion to dismiss.
Defendant also contends the court erred by allowing the introduction of the breathalyzer reading because it was not made at a relevant time and because it was introduced without laying a proper foundation.
The prerequisites necessary for the introduction of a breathalyzer reading are to show: (1) that the person administering the test possessed a valid permit issued by the Department of Human Resources; and (2) that the analysis was performed by the
Finally, defendant argues that he was unconstitutionally imprisoned because his sentence was enhanced by the use of a D.U.I. conviction which occurred prior to the effective date of the Safe Roads Act. We note that defendant attempts to raise this issue for the first time in his brief. The issue was not raised in the trial court, nor is it based upon any exception or assignment of error in the record on appeal. Rule 10(a) of the Rules of Appellate Procedure in pertinent part provides that “the scope of review on appeal is confined to a consideration of those exceptions set out in the record on appeal or in the verbatim transcript of proceedings . . . and made a basis of assignments of error in the record on appeal. . . .” Thus, defendant has waived his right to raise this issue on appeal. Nevertheless, in our discretion, we have considered the argument and find it to be without merit.
No error.
