State v. McDonald , 97 N.C. App. 322 ( 1990 )

WELLS, Judge.

Defendant brings forward a single assignment of error challenging the trial court’s denial of his motion for mistrial. Defendant argues that the State’s question regarding the lower result of the two breathalyzer tests improperly suggested to the jury that there was a test result higher than the result introduced into evidence. We find no error.

N.C. Gen. Stat. § 20-139.1(b3) governs the admissibility of breathalyzer test results. It provides in pertinent part that duplicate sequential breath samples be taken and:

(2) That the test results may only be used to prove a person’s particular alcohol concentration if:

a. The pair of readings employed are from consecutively administered tests; and

b. The readings do not differ from each other by an alcohol concentration greater than 0.02.

(3) That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person’s’ alcohol concentration in any court . . . proceeding.

A trial court “must declare a mistrial upon the defendant’s motion if there occurs during the trial an error or legal defect in the proceedings . . . resulting in substantial and irreparable prejudice to the defendant’s case.” N.C. Gen. Stat. § 15A-1061. It is well established, however, that the decision as to whether such prejudice has occurred within the meaning of the statute is addressed to the sound discretion of the trial judge. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419 (1989) (and cases cited therein). Consequently, a trial court’s ruling on a motion for mistrial may not be disturbed on appeal absent an abuse of discretion. Id.

Applying these standards to the present case, we conclude that defendant has failed to demonstrate error. Assuming arguendo that the prosecutor’s question regarding the lower of the two breathalyzer test results was improper, the trial court promptly took appropriate corrective measures by sustaining defendant’s objection as to the form of the question and instructing the jury to disregard it. Such measures were sufficient to cure any possible prejudice resulting from the prosecutor’s question. See State v. Pruitt, 301 N.C. 683, 273 S.E.2d 264 (1981). We therefore conclude that the trial court did not abuse its discretion in denying defendant’s motion for mistrial.

No error.

Chief Judge HEDRICK and Judge ARNOLD concur.