subject: North Carolina Driving Under Influence Traffic Offense High Rate Speed Lawyers Attorneys [print this page] STATE OF NORTH CAROLINA vSTATE OF NORTH CAROLINA v. MAX BRADSHAW FOUNTAIN
COURT OF APPEALS OF NORTH CAROLINA
December 15, 1971, Filed
On 6 January 1971 at about 11:30 p.m the defendant was traveling at a high rate of speed in a 45 mile-per-hour speed zone on U.S. Highway 258 when patrolman Bron met him and started pursuing him. Defendant didn't stop the vehicle but increased speed. Thereafter, Defendant stopped in the driveway Bron walked up to defendant's car and asked him to get in to patrol car. The defendant was unsteady and his eyes were very glossy and red and bloodshot. After he got in the car, Bron could smell some kind of alcohol beverage. Then Bron advised defendant that he was under arrest for driving under the influence and speeding. Defendant denied it and became violent. Defendant was taken to a magistrate's office. Defendant at first agreed to take the breathalyzer test but later refused. The State introduced in evidence the driver's license check for the purpose of proving the previous offense ofdriving while under the influence of alcoholic beverage, conviction being 17 November 1964, Jacksonville Municipal Court. Defendant goes on appeal that his motion for nonsuit as to the "second offense" portion of the charge of driving under the influence should have been granted because there was no admission by defendant that he was the same person referred to in the exhibit and the stipulation and, in the absence of judicial admission, the question of whether there was a former conviction was for the jury.
Issues:
Whether the trial court erred in the denial of defendant's motion for non-suit with respect to the "second offense" portion of a charge of driving under influence?
Whether the defendant's contention that the warrant was not properly amended has merits?
Discussion
This court held that the trial court did not err in the denial of defendant's motion for nonsuit with respect to the "second offense" portion of a charge of driving under the influence where the State introduced a driver's license record from the Department of Motor Vehicles which showed, and it was stipulated that such record showed, that a person having the same name as defendant was convicted of driving under the influence in the Jacksonville Municipal Court on 17 November 1964, and defendant testified on direct examination that "seven years ago in 1964 there was a case of Driving Under the Influence," notwithstanding there was no admission by defendant that he was the same person referred to in the driver's license record and in the stipulation. In a prosecution for resisting arrest, the trial court did not err in failing to charge that if the arrest was illegal, defendant had the right to resist with such force as was reasonably necessary, where the evidence showed that the arrest was legal. Defendant's contention that the warrant was not properly amended because the amendment was not actually written into the warrant is held without merit where the solicitor, in making the motion to amend, orally stated all the elements of the offense charged, defendant thereafter entered a plea of not guilty to that charge, and the record shows that the solicitor and defense counsel stipulated "that the warrant was amended to conformto the foregoing amendments."
Conclusion:
This court held that the Defendant has had a fair and impartial trial in which it finds no prejudicial error.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Driving Under Influence Traffic Offense High Rate Speed Lawyers Attorneys
By: Atchuthan Sriskandarajah
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