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State v. Bartlett

July 07, 1998


The opinion of the court was delivered by: Horton, Judge.

Appeal by defendant from judgments entered 28 February 1997 by judge W. Russell Duke, Jr., in Craven County Superior Court. Heard in the Court of Appeals 29 April 1998.

On 2 September 1996, defendant Avery O'Keith Bartlett drove from his home in Camden to New Bern to return his son to the child's mother following a weekend visitation. Prior to returning to Camden, he showered at the residence of an acquaintance and, accompanied by two acquaintances, drove to get something to eat. A New Bern police officer testified that he noticed the tinted windows on defendant's Jeep and thought they were too dark. The officer also testified that he could not read the expiration date on the Jeep's temporary tag. The officers lost sight of the Jeep for a time, but continued to look for the vehicle. An officer saw the Jeep in the driveway of an apartment building, and Officers Wilson and Burkhart parked across the street from the apartments and waited for defendant to move the vehicle. Accompanied by an acquaintance, defendant drove across the street, and parked in the lot beside the patrol vehicle.

Officer Burkhart approached defendant, told him that he thought his windows were too dark, and asked for his license and registration. Defendant had no driver's license due to a conviction the previous year for driving under the influence, but gave the officer his limited driving privilege. The limited driving privilege allowed defendant to drive between 6:00 a.m. and 8:00 p.m., Monday through Friday, to maintain his household.

Officer Wilson told Officer Burkhart she thought there were outstanding warrants on defendant, so she radioed the shift supervisor to check. Defendant and his passenger were ordered to remain in the Jeep. Officer Burkhart told defendant that he was having a tintmeter brought to the scene. A tintmeter was never brought to the scene, nor was defendant ever charged with an offense involving tinted windows. Copies of outstanding arrest warrants for defendant were brought to the scene. Defendant was arrested, taken out of the Jeep, handcuffed and placed in the backseat of Wilson's patrol car. Defendant's passenger was searched for weapons. Both Officers Burkhart and Wilson then searched defendant's Jeep.

Officer Wilson searched a black book bag that was on the backseat of the Jeep just behind the driver. Wilson testified that the bag contained school text books, an ID card for defendant, a clear plastic bag containing finely-chopped vegetable material with a lot of white specks, and a piece of black, hard, plastic material wrapped in a piece of aluminum foil. Defendant was taken to the magistrate's office.

Officer Burkhart testified that while in the magistrate's office, he noticed for the first time a moderate odor of alcohol about defendant. The officer then administered an alco-sensor test in the magistrate's office and arrested defendant for driving while license revoked.

The items seized from defendant's Jeep were sent to the SBI laboratory for analysis. The chopped vegetable material was not a controlled substance, but the plastic material was found to be bufotenine, a schedule 1 controlled substance. Defendant was convicted by a jury of driving while license revoked and possession of bufotenine. A third charge of maintaining a motor vehicle for the purpose of keeping a controlled substance was dismissed by the trial court. From judgments and commitments which included an active sentence, defendant appeals.

Defendant contends the trial court erred in: (I) admitting, over objection, testimony about the results of the alco-sensor test; (II) failing to suppress the admission in evidence of the hard plastic item seized from defendant's vehicle because there was no probable cause for its seizure; and (III) directing that certain exhibits be delivered to the jury in the jury room during their deliberations without doing so in open court and without informing defendant or his counsel of the jury's request.

I. The trial Judge admitted, over the objection of defendant, the results of an alco-sensor test. Although the arresting officer did not notice the odor of alcohol on defendant's breath at the scene of the arrest, the officer testified that he smelled a moderate odor of alcohol while in the magistrate's office with defendant. Defendant had already produced a limited driving privilege for the officer. N.C. Gen. Stat. § 20-179.3(h) (Cum. Supp. 1997) provides, in part, that all limited driving privileges must include a restriction that the privilege holder not drive at any time while he has remaining in his body any alcohol. In the instant case, defendant's limited driving privilege contained the above provision. N.C. Gen. Stat. § 20-179.3(j) provides, in pertinent part, that a holder of a limited driving privilege who violates the restriction against driving while he has remaining in his body any alcohol previously consumed commits the offense of driving while his license is revoked under N.C. Gen. Stat. § 20-28(a), which is an alcohol-related offense subject to the implied-consent provisions of N.C. Gen. Stat. § 20-16.2. The officer requested that defendant submit to an alco-sensor screening test and defendant did so.

The results of an approved alcohol screening device are admissible to determine if there are reasonable grounds to believe that defendant has committed an implied-consent offense, provided that "the device used is one approved by the Commission for Health Services and the screening test is conducted in accordance with the applicable regulations of the Commission as to the manner of its use." N.C. Gen. Stat. § 20-16.3(c) (1993); see Moore v. Hodges, 116 N.C. App. 727, 449 S.E.2d 218 (1994). The alco-sensor is an approved alcohol screening test device pursuant to the provisions of 15A N.C.A.C. 19B.0503(a)(1). Here, however, the results of the alco-sensor test (reading .05) were not introduced to show probable cause for defendant's arrest, but were erroneously introduced before the jury, over defendant's objection, as substantive evidence. N.C. Gen. Stat. § 20-16.3(d) (Cum. Supp. 1997), which governs the admissibility of alco-sensor test results, provides only one instance where such results might be introduced as substantive evidence: "Negative or low results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol." In the case before us, there is no contention that the alco-sensor test results were admitted to show that defendant was impaired by some substance other than alcohol. Thus, the test results were clearly not admissible.

Further, defendant complains that prior to trial he requested, pursuant to N.C. Gen. Stat. § 15A-903(e) (1997), that the State divulge any tests or experiments made in connection with the case. In its written response to the motion for voluntary discovery, the State attached a copy of the SBI laboratory report, but not the alco-sensor test.

At trial, Officer Burkhart was allowed to testify before the jury, over defendant's objection, as to the results of the alco-sensor test. When the District Attorney began to ask Officer Burkhart about the alco-sensor, the following colloquy occurred:

A. [Officer Burkhart]. I gave him an Alcosensor test.

MR. JENNINGS: Objection, Your Honor. Objection is overruled.

Q. What is an Alcosensor?

A. An Alcosensor ...

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