State v. Livingston

206 S.E.2d 376, 22 N.C. App. 346, 1974 N.C. App. LEXIS 2326

• Court: Court of Appeals of North Carolina
• Decided: July 3, 1974
• Docket: No. 7412SC545
• Status: Published

Opinion

VAUGHN, Judge.

The only issue on appeal is whether the court erred in denying defendant’s motion for nonsuit. The thrust of defendant’s argument is that since Officer Shambley did not state that defendant’s physical or mental faculties were “appreciably” impaired, see State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688; State v. Combs, 13 N.C. App. 195, 185 S.E. 2d 8, the evidence was insufficient to take the case to the jury.

“An odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking. Boehm v. St. Louis Public Service Co., 368 S.W. 2d 361 (Mo.). However, an odor, standing alone, is no evidence that he is under the influence of an intoxicant, Baldwin v. Schipper, 155 Colo. 197, 393 P. 2d 363, and the mere fact that one has had a drink will not support such a finding. McCarty v. Purser, 373 S.W. 2d 293 (Tex. Civ. App.). Notwithstanding, the ‘ [¶] act that a motorist has been drinking, when considered in connection with faulty driving ... or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. 20-138.’ State v. Hewitt, 263 N.C. 759, 140 S.E. 2d 241.”

Atkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789.

The evidence in the case before us was sufficient prima facie to show a violation of the statute and thus to allow the jury to decide whether there was an appreciable impairment.

No error.

Judges Morris and Baley concur.