State v. McCabe ( 1968 )

161 S.E.2d 42 (1968) 1 N.C. App. 237

STATE of North Carolina
v.
Ralph Harrell McCABE.

No. 68SC33.

Court of Appeals of North Carolina.

May 15, 1968.

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

Braswell & Strickland, by, Thomas E. Strickland, Goldsboro, for defendant appellant.

CAMPBELL, Judge.

It is to be noted that Troopers J. S. Irving, T. A. Baker, and P. C. Eure all testified that in their opinion the defendant was under the influence of some intoxicating beverage to an appreciable extent.

The only question presented is whether or not a breathalyzer test may be administered under these circumstances without first advising the accused that he has the right to refuse to take the test.

In our opinion and we so hold the answer to this question is "yes".

G.S. § 20-16.2 provides: "(a) Any person who operates a motor vehicle upon the public highways of this State or any area enumerated in G.S. 20-139 shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test of his breath for the purpose of determining the alcoholic content of his blood for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered upon request of 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 or any area enumerated in G.S. 20-139 while under the influence of intoxicating liquor.

(b) If a person under arrest refuses to submit to a chemical test under the provisions of G.S. 20-16.2, evidence of refusal shall be admissible in any criminal action growing out of an alleged violation of driving a motor vehicle upon the public highways of this State or any area enumerated in G.S. 20-139 while under the influence of intoxicating liquor. Provided: That before evidence of refusal shall be admissible in evidence in any such criminal action the court, upon motion duly made in apt time by the defendant, shall make due inquiry in the absence of the jury as to the character of the alleged refusal and the circumstances under which the alleged refusal occurred; and both the State and the accused shall be entitled to offer evidence upon the question of whether or not the accused actually refused to submit to the chemical test provided in G.S. 20-139.1."

In addition to the implied consent given by the defendant by virtue of driving an automobile on the public highways as provided in the statute above mentioned, the breath test in the instant case was administered only after the defendant had been arrested and as an incident to his arrest. It is to be noted that there was no force or violence used in making the test and there was no conduct that "shocks the conscience" or "offends a sense of justice." See the article entitled: "Chemical Tests and Implied Consent", 42 N.C.Law Review 841. State of Ohio v. Titak, Ohio App., 144 N.E.2d 255. The case of State v. Mobley, 273 N.C. 471, 160 S.E.2d 334 is distinguishable on its facts.

Affirmed.

BROCK and PARKER, JJ., concur.