State v. Simmons

276 S.E.2d 765, 51 N.C. App. 440, 1981 N.C. App. LEXIS 2246

Opinion

WELLS, Judge.

In his only assignment of error defendant argues that the court erred in allowing Boltinhouse to testify that defendant refused the breathalyzer test and in including a jury instruction concerning the failure of the defendant to take the breathalyzer test. Defendant first contends that G.S. 20-139.1(f) requires that all provisions of G.S. 20-16.2 must be complied with before a refusal to submit to the breathalyzer test is admissible against him and that there is no evidence in the record establishing such compliance. Defendant also argues that under G.S. 20-139.1, an arresting officer’s testimony regarding any matter relating to the breathalyzer test is incompetent. We reject both arguments. We hold that where, as in this case, the defendant by his voluntary and overt actions makes it clear that he will not voluntarily submit to the breathalyzer test, it is not necessary for the State to present evidence that the defendant was advised of his right to refuse to take the breathalyzer test before evidence of that refusal may be used against him at a trial for driving under the influence, as is allowed pursuant to G.S. 20-139.1. It is settled law that the arresting officer may testify as to that refusal at a trial for driving under the influence. State v. Flannery, 31 N.C. App. 617, 622, 230 S.E. 2d 603, 606 (1976).

No error.

Judges Vaughn and Becton concur.