State v. Carpenter

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239 S.E.2d 596 (1977)

34 N.C. App. 742

STATE of North Carolina v. Feddie Manuel CARPENTER.

No. 7727SC588.

Court of Appeals of North Carolina.

December 21, 1977.

Certiorari Denied January 24, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray, Raleigh, for the State.

Robert C. Powell, Lincolnton, for defendant.

Certiorari Denied by Supreme Court January 24, 1978.

BROCK, Chief Judge.

Defendant assigns as error that the trial court admitted into evidence the results of the breathalyzer test. Defendant's argument is based upon two premises.

*597 First he argues that the State failed to show that the breathalyzer operator was competent to administer the test because the State failed to introduce into evidence a valid permit. In State v. Powell, 10 N.C. App. 726, 179 S.E.2d 785, 786 (1971), affirmed 279 N.C. 608, 184 S.E.2d 243 (1971), we clearly stated: "In our opinion, from a reading of the statute and the cases above cited, although permissible, it is not required that either the `permit' or a certified copy of the `methods approved by the State Board of Health' be introduced into evidence by the State before testimony of the results of the breathalyzer test can be given." We still adhere to that proposition.

In the present case the breathalyzer operator testified about his training, he testified that he was a licensed operator, and he testified that he performed the test according to prescribed regulations. Defendant did not object or challenge the competency of the breathalyzer operator's testing of defendant. In the absence of evidence to the contrary, this was a sufficient showing that the operator possessed a valid permit and that he performed the test according to prescribed standards.

Secondly, defendant argues that the breathalyzer operator did not inform the defendant, in writing, of his rights. G.S. 20-16.2(a) provides that the operator "shall inform the person arrested both verbally and in writing and shall furnish the person a signed document setting out" certain specific information. There is no evidence to the contrary, and defendant does not dispute that the operator verbally advised defendant of the certain specifics required by statute. Defendant does not dispute that the operator placed before the defendant a form containing the same information of which he had orally advised him. It is defendant's argument that because the operator did not know whether defendant read the form containing the statutory information there was a failure of evidence to show that defendant was informed in writing as required by statute. This is not a convincing argument.

Having placed the information in writing before the defendant, the operator was not required to make defendant read it. If this were so, any belligerent or uncooperative defendant could defeat the evidence of the breathalyzer test results by merely refusing to read the information that was placed before him. The operator complied fully with the statute when he orally advised defendant and placed the required information in writing before defendant with the opportunity on defendant's part to read the same.

Defendant's assignment of error to the trial judge's instruction to the jury is overruled. See, State v. Hill, 31 N.C.App. 733, 230 S.E.2d 579 (1976).

In defendant's trial we find

No error.

MARTIN and CLARK, JJ., concur.