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North Carolina Driving Impaired Chemical Analysis Defense Alcohol Breath Suppress Concentration Open Container Lawyers Attorneys
STATE OF NORTH CAROLINA v. JAMES EDWARD SIMMONS, V
COURT OF APPEALS OF NORTH CAROLINA
Defendant James Edward Simmons, V was arrested and charged with driving while impaired ("DWI"), in violation of N.C. Gen. Stat. § 20-138.1, and possession of an open container of alcohol in the passenger area of a motor vehicle, in violation of N.C. Gen. Stat. § 20-138.7. Defendant was found guilty of both charges. The district court imposed court costs for the open container offense, and sentenced Defendant to a maximum of 45 days in the custody of the Pitt County Sheriff for the DWI offense. The jail sentence was suspended, and Defendant was placed on 12 months unsupervised probation. Defendant filed a Motion to Suppress Breath Results and a Motion to Suppress Evidence obtained as a result of the stop of his motor vehicle and his subsequent arrest for the DWI and open container violations. Judge Duke summarily denied Defendant's pre-trial motions to suppress during the course of the trial proceedings. Defendant's motions to dismiss at the close of the State's evidence and at the close of all the evidence were also denied. The jury returned verdicts finding Defendant guilty of DWI and an open container offense, and the trial court entered judgment on the verdicts. For the DWI offense, Defendant was sentenced to a 60-day prison term. The prison term was suspended, and Defendant was placed on 12 months supervised probation. As conditions of Defendant's probation, Defendant was required to serve seven days in the Pitt County Detention Center, ordered to pay court costs and a fine, and prohibited from driving a vehicle unless it was equipped with an interlock device. For the open container offense, Defendant was ordered to pay court costs and a fine. Defendant appealed.
ISSUES:
- Whether there is a substantial likelihood that the prosecutor's improper argument led the jury to believe that it was compelled to return a verdict of guilty in this case based on the results of the chemical analysis.
- Whether applicable preventive maintenance procedures had not been performed within the time limits prescribed by DHHS.
DISUSSION:
In this case, the results of the chemical analysis admitted into evidence were "'prima facie evidence'" that Defendant's alcohol concentration was .11. However, the results did not create a "legal presumption that Defendant "had, at any relevant time after the driving, an alcohol concentration of 0.08 or more." N.C. Gen. Stat. § 20-138.1(a)(2). A true presumption exists where "proof of a basic fact permits or requires the fact finder to find a different, elemental, fact." N.C. Gen. Stat. § 20-138.1 "does not state that 'results of a chemical analysis shall be deemed sufficient evidence to prove' e.g., a person's degree of intoxication, or his operation of a vehicle on a state highway." Instead, the statute simply authorizes the jury to find that the report is what it purports to be -- the results of a chemical analysis showing the defendant's alcohol concentration. This is the definition of prima facie evidence of an element of any criminal offense or civil cause of action -- that the jury may find it adequate proof of a fact at issue. Although the results of the chemical analyses in this case were sufficient evidence from which the jury could have found that Defendant had an alcohol concentration of 0.11 and, thus, could have convicted Defendant of DWI under N.C. Gen. Stat. § 20-138.1 (a)(2), the results did not compel the jury to do so. However, given the similarity of the Narron facts recited by the prosecutor to the facts of this case, the guilty verdict returned by the jury in Narron, and the prosecutor's first-hand knowledge of both cases, there is a substantial likelihood that the prosecutor's improper argument led the jury to believe that it was compelled to return a verdict of guilty in this case based on the results of the chemical analysis. Accordingly, the Court concluded that the erroneous admission of the prosecutor's improper closing argument was "so grave that it prejudiced the result of the trial."
Defendant next argues that the trial court erred in denying his motion to suppress the results of the chemical analysis performed on Defendant's breath with the Intoxilyzer 5000 as "preventative maintenance was not performed within the time limits prescribed by the Department of Health and Human Services." In this case, preventive maintenance of the simulator, including changing the simulator solution, was performed on 14 July 2006 and then again on 5 December 2006. The chemical analysis of Defendant's breath was conducted on 28 December 2006, 23 days after the most recent preventive maintenance. While Defendant's argument might have had merit if the chemical analysis of Defendant's breath had occurred after 14 November 2006, when four months had passed since the simulator solution had been changed, and before 5 December 2006, when the simulator solution was changed, the chemical analysis of Defendant's breath on 28 December 2006 was performed only 23 days after the simulator solution was changed, well within the four month window. Accordingly, as Defendant failed to demonstrate that applicable preventive maintenance procedures had not been performed within the time limits prescribed by DHHS, the results of the chemical analysis were admissible and the trial court did not err in denying Defendant's motion to suppress. Defendant's argument is without merit.
JUDGMENT:
Court held that Defendant is entitled to a new trial on the charge of DWI. The Court found no error in Defendant's conviction for possession of an open container of alcohol in the passenger area of a motor vehicle, but the matter was remanded to the trial court for resentencing.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
About the Author
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
what factors led to the end of prohibition? links please?
i am wondering what social factors, what methods, caused people to suddenly change their minds on Prohibition. Why they suddenly quit believing in the hopeful expectation that prohibiting alcohol would end alcohol related problems, and instead chose to rationally evaluate the results. Who spearheaded this sudden change in view? Why did it work?
As much as the religious sector of America wanted to embed the element of purity and morals in the souls of the conventional American public, the American masses were not even a wee bit interested in the prospect of getting purified. The law, although passed by Congress, faced a lot of difficulty in being executed, as nationwide protests were made against the law – for starters, a bootlegger named Al Capano, who had an illegal business of manufacturing and selling drinks, got involved in the massacre of his rivals in 1929, who were trying to make money in the same line of business. Just a decade had passed since the law of Prohibition had been passed in America and the American citizens were already getting too fed up of this 'unnecessary hindrance in their freedom'. Soon the Democratic party championed itself as the group who wanted to repeal the law of Prohibition. Another reason for abolition of Prohibition was the economic depression in the following 4-5 years. It was assumed that if the law was repealed, employment opportunities could be created for many people and this could be an improvement in the economic situation of the country. After taking all the factors in consideration, the law of Prohibition was finally repealed in 1933.
The Murder City Devils - Alcohol