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State v. Sisk

Court of Appeals of North Carolina

December 31, 2014

STATE OF NORTH CAROLINA
v.
JIMMY SCOTT SISK

Heard in the Court of Appeals November 5, 2014.

Cleveland County. Nos. 12 CRS 3427, 12 CRS 56061.

Roy Cooper, Attorney General, by Neil Dalton, Special Deputy Attorney General, for the State.

Leslie C. Rawls for defendant-appellant.

DAVIS, Judge. Judges ELMORE and ERVIN concur.

OPINION

Page 695

Appeal by defendant from judgment entered 22 November 2013 by Judge J. Thomas Davis in Cleveland County Superior Court.

DAVIS, Judge.

Jimmy Scott Sisk (" Defendant" ) appeals from his convictions for habitual impaired driving and attaining the status of an habitual felon. On appeal, he contends that the trial court erred by admitting the results of his blood test into evidence. After careful review, we conclude that Defendant received a fair trial free from error.

Factual Background

The State's evidence at trial tended to establish the following facts: At approximately 5:10 p.m. on 20 October 2012, Trooper Ben Sanders (" Trooper Sanders" ) of the North Carolina Highway Patrol was on duty driving his marked patrol vehicle southbound on N.C. Highway 10 in Cleveland County. Defendant was driving a motor home in the opposite direction. Trooper Sanders observed Defendant's vehicle veer into Trooper Sanders' lane and then swerve back into Defendant's original lane. Trooper Sanders turned his patrol car around in pursuit and activated his blue lights and siren.

Trooper Sanders drove for some distance before he caught up with Defendant's vehicle. Defendant then abruptly turned into a convenience store parking lot and drove through a carwash stall, causing minor damage to both the stall and the motor home. Trooper Sanders followed Defendant and then exited his patrol car. As Trooper Sanders approached Defendant's vehicle, Defendant exited the driver's side door and then stumbled back against the motor home. Trooper Sanders noticed that Defendant smelled strongly of alcohol, his speech was slurred, and he was unsteady on his feet. Trooper Sanders also observed several open beer cans on the front floorboard of the motor home. Defendant was arrested for driving while impaired.

Defendant was then transported to the intoxilyzer room of the Cleveland County Law Enforcement Center where Trooper Sanders read and gave Defendant a copy of his implied consent rights. Defendant acknowledged his awareness of his rights and " stated that he would not take a breath test, but that he would give a blood test[.]" Approximately 23 minutes later, Trooper Sanders asked Defendant to give a breath sample, and Defendant refused. Trooper Sanders then told Defendant that he would be transported to the hospital for a blood test, and Defendant said " [o]kay."

At the Cleveland County Hospital emergency room, Defendant was placed in a waiting room, where he laid down on a gurney and fell asleep. When the technician came in, Defendant was awakened and informed that his blood was about to be drawn. Defendant made no comment or objection but " offered his arm out, and [the technician] took a blood sample from ...


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