Heard in the Court of Appeals 11 August 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by defendant from judgment entered 27 June
2013 by Judge Christopher W. Bragg in Pitt County Superior Court.
Pitt County. No. 12 CRS 50689.
NO ERROR. REMANDED TO TRIAL COURT FOR CORRECTION OF CLERICAL ERROR.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for Defendant.
ERVIN, Judge. Judges Robert C. HUNTER and MCCULLOUGH concur.
Defendant James M. Roberts appeals from a judgment entered based upon his conviction for driving while subject to an impairing substance. On appeal, Defendant argues that the trial court erred by allowing the use of an unconstitutional mandatory presumption regarding the effect of the results of the chemical analysis of Defendant's breath that was admitted into evidence, allowing the admission of evidence concerning the result of a chemical analysis of his breath, erroneously instructing the jury concerning the extent to which the chemical analyst had complied with the applicable regulations and the extent to which the time stamps shown on a video introduced into evidence accurately reflected the amount of time that elapsed during the time that certain events occurred, denying his motion to dismiss the charge that had been lodged against him based upon the State's failure to prosecute other similarly situated defendants using the presentment process, failing to intervene without objection to preclude the prosecutor from making inappropriate comments during her final argument, and placing him in jeopardy twice for the same offense by using the results of a chemical analysis of his breath to establish both the factual basis needed to support his guilty plea and as the primary support for the aggravating factor that the jury found to exist for sentencing-related purposes. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 8:00 p.m. on 26 January 2012, Defendant was seen in the parking lot of a Harris Teeter grocery store. At that time, Defendant was walking in a slow, unsteady manner and appeared to be having trouble locating his vehicle. After making these observations, Robert Aiken approached Defendant for the purpose of ascertaining if he needed assistance. However, Defendant failed to make eye contact with or otherwise acknowledge Mr. Aiken's presence. According to Mr. Aiken, Defendant was " wasted."
After noticing that Defendant had purchased beer, Mr. Aiken enlisted the help of another man in an attempt to prevent Defendant from getting in his car and driving away. As this was occurring, Trooper William Brown of the North Carolina State Highway Patrol arrived in the parking lot. Mr. Aiken flagged Trooper Brown down and told Trooper Brown what he had observed. As Mr. Aiken talked with Trooper Brown, Defendant reached his automobile, placed a bag in the vehicle's interior, and walked away.
After learning of Defendant's condition from Mr. Aiken, Trooper Brown waited to see if Defendant would return to his vehicle. About 30 minutes later, Defendant returned to the parking space in which his automobile was located, entered his vehicle, and began driving out of the parking lot. While following Defendant, Trooper Brown observed that Defendant crossed the fog line twice and ran a red light. As a result, Trooper Brown stopped Defendant's vehicle, placed Defendant under arrest for driving while subject to an impairing substance, and transported Defendant to the Pitt County Detention Center for the purpose of chemically testing Defendant's breath for the presence of alcohol.
After Trooper Brown and Defendant reached the testing room, Trooper Brown removed Defendant's handcuffs and asked Defendant if he had anything in his mouth. In response, Defendant mentioned " Copenhagen," raked his finger between his lips and his teeth, and displayed a tin of Copenhagen chewing tobacco. Trooper Brown did not, however, see anything in Defendant's mouth. Although Defendant wanted to wash his mouth out before the chemical test of his breath was administered, Trooper Brown refused to allow Defendant to do so.
At 9:22 p.m., Trooper Brown advised Defendant of his rights relating to the testing process and began the statutory observation period, during which he was required to ensure that Defendant did not put anything in his mouth, regurgitate, vomit, smoke, eat, or drink. At 9:33 p.m., Defendant exercised his right to call someone in an attempt to obtain the presence of a witness during the testing process. Shortly thereafter, Trooper Brown left the testing room with Defendant for the purpose of allowing Defendant to use the restroom. After Trooper Brown and Defendant returned to the testing room, Defendant placed his fingers in his mouth, causing Trooper Brown to place Defendant in handcuffs and initiate a new observation period, which began at 9:52 p.m.
At 10:06 p.m., Trooper Brown and Defendant left the testing room for the purpose of ascertaining if Defendant's witness had arrived. During that process, Defendant wiped his mouth on his jacket on two separate occasions. Upon returning to the testing room, Trooper Brown took three samples of Defendant's breath, after which he reported that Defendant had a 0.19 blood alcohol level.
B. Procedural History
On 26 January 2012, a citation charging Defendant with driving while subject to an impairing substance was issued. On 13 August 2012, the Pitt County grand jury returned a presentment requesting the District Attorney to investigate the underlying circumstances and submit a bill of indictment charging Defendant with driving while subject to an impairing substance. On that same date, the Pitt County grand jury returned a bill of indictment charging Defendant with driving while subject to an impairing substance.
The charge against Defendant came on for trial at the 24 June 2013 criminal session of the Pitt County Superior Court. On 25 June 2013, the trial court summarily denied Defendant's Motion to Suppress Evidence ( Miranda ) and denied in part and granted in part Defendant's Motion in Limine and/or Motion to Prohibit the State From Introducing Any Expert Testimony. On 26 June 2013, the trial court denied Defendant's Motion to Dismiss, Motion to Suppress Chemical Analysis of Breath, and Motion to Suppress Evidence (Investigatory Stop & Seizure). After the trial court announced its rulings with respect to Defendant's pre-trial motions, Defendant entered a plea of guilty to driving while subject to an impairing substance while preserving his right to seek appellate review of the denial of his pretrial motions. After concluding that there was a factual basis for Defendant's plea, the trial court accepted his plea of guilty.
On 26 June 2013, the issue of whether Defendant had a blood alcohol concentration of 0.15 or more within a relevant time after driving came on for hearing before the trial court and a jury. On 27 June 2013, the jury returned a verdict finding the existence of the aggravating factor delineated in N.C. Gen. Stat. § 20-179(d)(1). At the conclusion of the ensuing sentencing hearing, the trial court determined that Level III punishment should be imposed and entered a judgment sentencing Defendant to a term of 90 days imprisonment in the custody of the Sheriff of Pitt County, suspending Defendant's sentence, and placing Defendant on supervised probation for 12 months on the condition that he pay the court costs and a $1,000 fine, surrender his driver's license and not operate a motor vehicle until properly licensed to do so, complete 72 hours of community service within 60 days, abstain from ...