State v. Hill , 31 N.C. App. 733 ( 1976 )

230 S.E.2d 579 (1976) 31 N.C. App. 733

STATE of North Carolina
v.
Obie George HILL.

No. 7618SC571.

Court of Appeals of North Carolina.

December 15, 1976. Certiorari Denied March 7, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Richard L. Griffin, Raleigh, for the State.

Hubert E. Seymour, Jr., Greensboro, for defendant appellant.

Certiorari Denied by Supreme Court March 7, 1977.

ARNOLD, Judge.

Appellant was charged with violating G.S. 20-138(a) and convicted of violating G.S. 20-138(b). The statute itself provides:

"(a) It is unlawful . . . for any person who is under the influence of intoxicating liquor to drive or operate any vehicle upon any highway . . . within this State.

"(b) It is unlawful for any person to operate any vehicle upon any highway. . . within this State when the amount of alcohol in such person's blood is 0.10 percent or more by weight. . .. An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence."

Since G.S. 20-138(b) is treated as a lesser included offense within G.S. 20-138(a) defendant contends that the source of the proscribed alcohol in G.S. 20-138(b) must be an intoxicating beverage. He supports this argument by asserting that G.S. 20-139, forbidding one to drive while under the influence of any drug, covers non-beverage alcohol. Defendant cites no authority for his position, and we find it untenable.

The primary purpose for which the General Assembly enacted G.S. 20-138(b) is to regulate conduct for the safety of the public using the State's highways. It would be contrary to the legislative intent of G.S. 20-138(b) to read into it a requirement that the source of alcohol be intoxicating beverage as required in G.S. 20-138(a). A person whose blood contains .10 percent or more by weight of alcohol, regardless of the source of the alcohol, and who drives upon the highways within the State violates G.S. 20-138(b).

Appellant next argues that because he innocently imbibed alcohol in the form of cough medicine he lacked the guilty intent, the mens rea, which is an element of any common law crimes. Thus, he argues, the judge erred in failing to instruct that, in order to violate G.S. 20-138(b), appellant must have known or had reasonable grounds to believe that he was drinking alcohol. We disagree. As is well said in 1 Burdick, Law of Crime § 129j (1946):

"The legislature may deem certain acts, although not ordinarily criminal in themselves, harmful to public safety, health, morals and the general welfare, and by virtue of its police power may absolutely prohibit them, either expressly or impliedly by omitting all references to such terms as ``knowingly', ``wilfully', ``intentionally' and the like. Such statutes are in the nature of police regulations, and it is well established that the legislature may for the protection of all the people, punish their violation without regard to the question of guilty knowledge. . ."

The statute in question, G.S. 20-138(b), speaks absolutely. It is in the same category as our speed limit statutes. See, G.S. 20-141(b). Unlike our reckless driving statute, G.S. 20-140, it does not use the word "willful". Neither does it use the words "knowing" or "intentional". "When the language [of a statute] is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation." State v. McBrayer, 98 N.C. 619, 623, 2 S.E. 755, 756 (1887). Guilty knowledge is not an element of G.S. 20-138(b).

Finally, citing State v. Cooke, 270 N.C. 644, 155 S.E.2d 165 (1967), appellant asserts that he was entitled to special instructions emphasizing that the jury was free to disbelieve the breathalyzer reading. If defendant desired a special instruction further explaining the breathalyzer evidence he should have requested it. See, State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971). The State's position is that the statutory offense for which defendant was convicted was enacted since Cooke. More importantly, G.S. 20-139.1, as it existed when Cooke was decided, created a "presumption" of intoxication for driving under the influence when the breathalyzer blood alcohol reading was .10 percent or higher. That presumption is no longer contained in G.S. 20-139.1. Since no presumption arose from the evidence, it was not error to fail to instruct that the breathalyzer evidence was rebuttable on the issue of whether the blood level was .10 percent or higher by weight. We agree with this position.

In the trial court's decision we find

No error.

MORRIS and CLARK, JJ., concur.