State v. Jenkins , 21 N.C. App. 541 ( 1974 )

204 S.E.2d 919 (1974) 21 N.C. App. 541

STATE of North Carolina
v.
Charles Grier JENKINS.

No. 7427SC196.

Court of Appeals of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan, by Deputy Atty. Gen. R. Bruce White, Asst. Atty. Gen. Jones Byrd, and Associate Atty., C. Diederich Heidgerd, Raleigh, for the State.

Childers & Fowler, by Henry L. Fowler, Jr. and Max L. Childers, Mount Holly, for defendant appellant.

MORRIS, Judge.

Defendant assigns error to the trial court's instructing the jury that "in the opinion of the officer, the defendant was under the influence of some intoxicating liquor". It is his contention that the court erred in recapitulating incompetent evidence to the jury. However, the competency of this statement is not before us inasmuch as no motion was made to strike the statement and no exception to its competency has been brought forward. Thus, we consider only whether the trial court properly stated the evidence before the jury. It is true that the officer did not testify that in his opinion the defendant was under the influence of an intoxicant; rather, he testified that defendant's faculties were impaired due to the use of an alcoholic beverage. A person is under the influence within the meaning of G.S. § 20-138 when he has drunk a sufficient amount of intoxicating beverage or taken a sufficient amount of narcotic drug to cause him to lose normal control of his bodily or mental faculties or both to such an extent that there is an appreciable impairment of either or both of these faculties. State v. Ellis, 261 N.C. 606, 135 S.E.2d 584 (1964); State v. Carroll, 226 N.C. 237, 37 S.E.2d 688 (1946). The response of the officer was tantamount to an opinion that defendant was under the influence of an intoxicating beverage. The evidence offered by both the State and the defendant is recapitulated with reasonable accuracy. This is sufficient. Additionally, it has long been the general rule that objections to the charge of the court in reviewing the evidence must be made before the jury retires, so that the court may have the opportunity to correct any mistakes. Otherwise, the objection is deemed waived and will not be considered on appeal. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973).

Defendant next assigns error to the failure of the trial court to instruct the jury that they must find beyond a reasonable doubt that the breathalyzer test was administered according to State Board of Health regulations before they found defendant guilty. Officer Brooks testified that he administered the test in accordance with the prescribed rules, and the court instructed the jury to this effect. There is no requirement that the jury be instructed that they must find that the test was administered in accordance with Board of Health regulations.

We note in passing that the breathalyzer test itself does not—as the court instructed—give rise to the inference that defendant was under the influence. Rather, the evidence of the results of the test create that inference. However, the charge, when read contextually, sufficiently applied the law to the facts, and we perceive no prejudicial error in defendant's trial.

No error.

CAMPBELL and VAUGHN, JJ., concur.