State v Fulton
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-33 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 STATE OF NORTH CAROLINA v. Forsyth County No. 10 CRS 56211 LINWOOD FULTON Appeal by defendant from judgment entered 3 August 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 6 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Charlotte Gail Blake, for defendant-appellant. MARTIN, Chief Judge. Defendant Linwood Fulton appeals from a judgment entered upon a jury impaired. a special verdict finding him guilty of driving while At trial, defendant submitted a written proposal for jury instruction stating that the results of a chemical analysis showing his blood alcohol concentration did not create a legal presumption that a defendant had an alcohol concentration of .08 or more and thus the jury was not compelled -2to return a guilty verdict where a chemical analysis report established an alcohol concentration of .08 or more. court denied defendant s request instruction on the offense and gave the The trial pattern jury of driving while impaired to the jury. Defendant now argues the trial court erred in denying his request for a special jury instruction because the pattern jury instruction given by the trial court improperly allowed the jury to find defendant guilty based on the results of the chemical analysis alone and that the pattern jury instruction creates a presumption that defendant had an alcohol concentration of 0.08 or above at a relevant time after driving. Defendant s argument is misplaced. The three essential elements of the offense of impaired driving are (1) driving a vehicle (2) upon any public vehicular area (3) while under the influence of an impairing substance or [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. State v. Narron, 193 N.C. App. 76, 79, 666 S.E.2d 860, 863 (2008) (citations and quotation marks omitted), disc. review denied, 363 N.C. 135, 674 S.E.2d 140 (2009), cert. denied, ___ U.S. ___, 175 L. Ed. 2d 26 (2009); see also N.C. -3Gen. Stat. ยง 20-138.1 (2011). prove the single offense of Thus, there are two ways to impaired driving: (1) showing appreciable impairment; or (2) showing an alcohol concentration of 0.08 or more. Narron, 193 N.C. App. at 79, 666 S.E.2d at 863 (citation and quotation marks omitted). This Court has previously rejected the argument defendant advances in this case that the pattern jury instruction at hand creates a presumption of fact. Id. at 79-85, 666 S.E.2d at 863-66. Rather, this Court held that [t]he result of a chemical analysis is a report of a person s alcohol concentration, and . . . the result of such a test constitutes prima facie evidence of the defendant s alcohol concentration as reported in the results. Id. at 84, 666 S.E.2d at 866. Defendant s argument appears to be based upon a belief that he presented evidence rebutting chemical analysis report. the results stated in the However, defendant s evidence that he performed well on field sobriety tests, did not weave between lanes of traffic or straddle lanes, and did not have slurred speech does not rebut the State s chemical analysis evidence as a matter of law, but simply provides a basis upon which the jury could, if it chose, conclude that the results of the chemical analysis were not credible. -4We hold the trial court properly instructed the jury as to both theories of impaired driving, and charged the jury to weigh all the evidence in the case and the witnesses before arriving at its verdict. instruction did not limit the credibility of the The trial court s evidence which the jury could consider, and the weight given to the chemical analysis results was left to the province of the jury. argument, a jury may convict a Contrary to defendant s defendant for driving while impaired based solely upon its determination that the defendant had an alcohol concentration of 0.08 or more at any relevant time after driving, as shown analysis of a blood sample. by the results of a chemical Accordingly, we find the trial court did not err in denying defendant s request for a special jury instruction. No error. Judges STEPHENS and ERVIN concur. Report per Rule 30(e).
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