State v. Martin

265 S.E.2d 456 (1980)

STATE of North Carolina v. Henry Scott MARTIN.

No. 7920SC997.

Court of Appeals of North Carolina.

May 6, 1980.

*458 Atty. Gen. Rufus L. Edmisten by Associate Atty., Barry S. McNeill, Raleigh, for the State.

Gerald R. Chandler, Albemarle, for defendant-appellant.

HEDRICK, Judge.

Based upon approximately 65 exceptions noted in the record, defendant brings forward and argues 30 assignments of error. First, he contends that the trial court erred as a matter of law by refusing to grant him a continuance before proceeding to trial in the Superior Court. Although defendant concedes that the granting of a continuance is a matter within the discretion of the court, he argues that the court abused its discretion in this case for the reason that "new counsel . . . [was] employed about 1 hour before the case was called for trial," and did not have adequate time to prepare the case.

Had counsel been afforded more time to prepare this case, the record on appeal might have been even more voluminous than its present 182 pages, 100 pages of which constitute evidence adduced primarily by defendant's counsel on direct and cross-examination. We disagree that the defendant was prejudiced in the trial of his case by Judge Lupton's refusal to allow a continuance. To the contrary, the record establishes to our satisfaction that defense counsel more than ably represented his client in a relatively uncomplicated case which involved few witnesses and even fewer disputed facts, but which nevertheless required more than three days' court time. Defendant has failed to show that the court abused its discretion by denying his motion. This assignment of error is patently without merit.

Defendant's next five assignments of error relate to his trial in the Superior Court upon a "misdemeanor statement of charges." The record discloses that, when this case came on for trial de novo in Superior Court, Judge Lupton found that the citation upon which the defendant was tried and convicted in the District Court was insufficient for that it was not signed by a magistrate. He thereupon ordered that the district attorney prepare, and the defendant be tried upon, a "statement of charges" pursuant to G.S. § 15A-922(c). Upon defendant's motion to dismiss the "misdemeanor statement of charges" thereafter filed, the court found that the statement "makes no material change in the pleadings, in that it charges the identical offense theretofore charged" in the insufficient citation. The judge denied defendant's motion and ruled that the State could proceed to trial on the statement as filed. Defendant excepted and argues on appeal that trial on the misdemeanor statement could only have been had in District Court.

We disagree. The provisions of Chapter 15A, specifically G.S. § 15A-922, pertinent to the resolution of this question, provide as follows:

(b) Statement of Charges. *459 (1) A statement of charges is a criminal pleading which charges a misdemeanor.. . . (e) . . . If the defendant by appropriate motion objects to the sufficiency of a criminal summons, . . . at the time of or after arraignment in the district court or upon trial de novo in the superior court, and the judge rules that the pleading is insufficient, the prosecutor may file a statement of charges, but a statement of charges filed pursuant to this authorization may not change the nature of the offense. [Emphasis added.]

It is clear that the statement of charges filed in this case upon trial de novo in Superior Court fully complied with the procedure contemplated by the foregoing statutory provisions. Moreover, only when a proceeding is initiated in the Superior Courtnot when it arrives there by way of appeal, as hereis the State required to proceed upon information or indictment. See G.S. §§ 15A-922(g), 15A-923. Defendant's assignments of error based on the denial of his motion to dismiss the misdemeanor statement of charges are likewise without merit.

Next, defendant assigns error to the admission into evidence of the breathalyzer test results. At the outset he contends that the evidence should have been suppressed because the breathalyzer operator, Officer Cook, performed preliminary steps of setting up the machine before his attorney arrived to view the testing procedure. He argues that he had an absolute right to have his attorney view all the procedures necessary to give the test.

G.S. § 20-16.2(a)(4) prescribes that a person arrested for driving under the influence "has the right to call an attorney . . . to view for him the testing procedures; but that the test shall not be delayed for this purpose for a period in excess of 30 minutes from the time he is notified of his rights."

Our Supreme Court has recently concluded that the thirty-minute time limit referred to in the statute is absolute, and that a person enjoys no constitutional right to confer with counsel before deciding whether to submit to the breathalyzer test. Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979). "[A] person accused under the statute has no right to delay the test in excess of thirty minutes while waiting for his attorney to arrive or to return his call." Etheridge v. Peters, ___N.C.App.___, 263 S.E.2d 308 (1980). If an accused has no constitutional or statutory right to delay taking the test beyond the thirty-minute limit for the purpose of conferring with an attorney, a fortiori he or she has no absolute right to demand that an attorney view the entire process involved in administering the test, including the preliminary steps necessary to ready the machine itself.

Moreover, the record in this case shows that the defendant was allowed to have his attorney present for the actual taking and recording of his breath sample, even though the test was thereby delayed past the thirty-minute limit. This defendant surely has no room to complain.

Defendant's remaining four arguments by which he attacks the admissibility of the breathalyzer reading relate to evidence regarding compliance by the State with "preventive maintenance procedures." He contends that the State was required to establish that it had followed certain procedures to maintain the breathalyzer equipment before evidence of test results was admissible, and that the State's evidence in this case was insufficient to establish compliance. We deem it unnecessary to consider the sufficiency of the evidence because we do not believe the State is required to offer such proof. What the State must establish under the Statute, G.S. § 20-139.1(b), are (1) that the person administering the test possessed "a valid permit issued by the Department of Human Resources for this purpose" and (2) that the test was "performed according to methods approved by the Commission for Health Services". These requirements were fully met in this case. Officer Cook testified that he was duly licensed and his permit was introduced into evidence. Moreover, he *460 testified extensively, primarily on cross-examination, that he followed the procedures promulgated by the Department of Human Resources in performing the test. The "breathalyzer operational check list" issued by the Department, which he was required to and did follow when he administered the test to the defendant, was introduced into evidence. This evidence clearly establishes the admissibility of the breathalyzer test results under the requirements of the statute, and the State need not offer proof of "preventive maintenance procedures." See State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973); State v. Powell, 279 N.C. 608, 184 S.E.2d 243 (1971).

By several assignments of error, the defendant challenges the court's rulings denying his motions for judgment as of nonsuit and for appropriate relief. We think it obvious that the evidence was plenary to require its submission to the jury and to support the verdict.

Defendant has brought forward and argued other assignments of error which we have not discussed. However, we have carefully considered these assignments of error and the exceptions upon which they are based, and find them to be meritless.

We hold the defendant had a fair trial free from prejudicial error.

No error.

WEBB and WELLS, JJ., concur.