State v. Randolph

159 S.E.2d 324 (1968)

273 N.C. 120

STATE of North Carolina v. Robert RANDOLPH, Jr.

Nos. 67 CrD 665, 822.

Supreme Court of North Carolina.

February 28, 1968.

*326 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. William W. Melvin, and Staff Attorney T. Buie Costen, Raleigh, for the State.

Johnson, Hedgpeth, Biggs & Campbell, Lumberton, for defendant.

PER CURIAM.

Defendant assigns as error the trial court's action in refusing to strike testimony of Officer Gardner (1) relative to results of the breathalyzer test, and (2) the conversation between defendant and Officer Gardner relating to request of defendant to take the test.

The record shows that the manner in which the test was made and the qualifications of the person administering the test met the requirements of G.S. § 20-139.1. Thus, nothing else appearing, the results would be competent evidence. State v. Powell, 264 N.C. 73, 140 S.E.2d 705. However, defendant contends that the rules set out in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are applicable here. The Miranda rules apply to involuntary confessions obtained by compulsion or some means of enforced communication. The Federal Court clearly distinguishes and removes the instant case from application of Miranda in Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (June 20, 1966), where the Court approved the taking of a blood test to determine alcohol content over defendant's vehement objection (as compared here with defendant's cooperation). In Schmerber the Court stated:

"* * * We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends."

Here, there was no involuntary confession or enforced communication by defendant. Further, the test was given by and with defendant's free consent after he had been advised as to the operation of the machine and that he did not have to take the test.

We see no merit in defendant's argument that the technician who operated the breathalyzer machine should be excluded from asking defendant to submit to the test. The arresting officer or the technician could have properly asked defendant to submit to the test. A fortiori, the technician, because of his complete impartiality, might be the more desirable of the two. Further, we construe that portion of G.S. § 20-16.2 which provides that "the test or tests shall be administered upon request of *327 a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways of this State * * * while under the influence of intoxicating liquor," to refer to the request being made by the officer to the technician who will give the test, rather than being directed to the suspect.

This assignment of error is overruled.

Defendant asserts that the court erred in failing to strike testimony of Officer Greene concerning statements made while defendant was under arrest.

Defendant, represented by competent counsel, failed to object to the testimony when offered on initial direct examination. He failed to ask permission to examine the witness in absence of the jury to show, if he could, that the statements were involuntary and therefore not competent. Thus, this question is not properly presented on appeal. State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873. Further, the only record evidence which touches on the compulsion or involuntary admissions by defendant shows that defendant was told he could have a lawyer, that he could make a call, and that he did not have to take the breathalyzer test. The whole record tends to show the admissions made and the test given were made and given in an atmosphere of free and voluntary choice rather than one of compulsion.

The trial judge correctly charged the jury as to the presumption raised by G.S. § 20-139.1, State v. Cooke, 270 N.C. 644, 155 S.E.2d 165, and from a careful examination of the entire charge we find no reasonable grounds to believe the charge misled or misinformed the jury. State v. Taft, 256 N.C. 441, 124 S.E.2d 169.

Defendant fails to show prejudicial error.

No error.

HUSKINS, J, took no part in the consideration or decision of this case.