                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-558

                                Filed: 5 January 2016

Wake County, No. 13CRS205883

STATE OF NORTH CAROLINA

             v.

LUCIO TORRES MARTINEZ, Defendant.


      Appeal by Defendant from judgment entered 19 November 2013 by Judge Paul

G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 21

October 2015.


      Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Neil
      Dalton, for the State.

      James W. Carter for the Defendant.


      DILLON, Judge.


      Lucio Torres Martinez (“Defendant”) appeals from a judgment entered upon a

jury verdict finding him guilty of driving while impaired. We find no error.

                                    I. Background

      On 10 March 2013, Defendant was pulled over by a police officer after

attempting to evade a checkpoint.      Upon approaching the driver’s side door of

Defendant’s vehicle, the officer detected a moderate odor of alcohol emanating from

inside. Defendant provided the officer with an identification card, and the officer ran
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                                 Opinion of the Court



his information. The officer then returned to the vehicle and asked Defendant to step

outside. Defendant stumbled as he exited, steadying himself on the door.

      Once Defendant was outside the vehicle, the officer began conducting field

sobriety tests. It became clear that Defendant did not fully understand English. The

officer called his dispatcher, who spoke Spanish, and put the dispatcher on

speakerphone to translate his commands during the tests. As he conducted the tests,

the officer noticed that the odor of alcohol had grown stronger. The officer then

administered two portable breath tests, which both registered positively for the

presence of alcohol. The officer placed Defendant under arrest for driving while

impaired and took him to the Wake County Jail.

      After arriving at the jail, the officer conducted a chemical analysis of the

alcohol content of Defendant’s breath. Before beginning the test, the officer read

Defendant his implied consent rights in English and gave him a Spanish language

version of those same rights in written form. The officer called his dispatcher once

more and placed him on speaker phone to answer any questions Defendant might

have. Defendant signed the Spanish language version of the implied consent rights

form and submitted to testing. The test results revealed that Defendant had a blood

alcohol content of .13.

      Defendant was indicted with driving while impaired and habitual driving

while impaired based on the 10 March 2013 incident. The matter came on for trial



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                                        Opinion of the Court



in superior court. Before jury selection began, Defendant stipulated to three prior

convictions for driving while impaired. The jury found Defendant guilty of driving

while impaired. The trial court arrested judgment on this conviction, entered a

judgment for habitual driving while impaired based on Defendant’s pretrial

stipulation, and sentenced Defendant to prison for sixteen (16) to twenty-nine (29)

months. Defendant appeals.1

                                            II. Analysis

       In his sole argument on appeal, Defendant contends that the trial court erred

in admitting the results of the breath alcohol testing.                  Specifically, Defendant

contends that N.C. Gen. Stat. § 20-16.2, which mandates that motorists be informed

of their implied consent rights before being subjected to breath alcohol testing,

requires that a motorist be informed orally of his or her implied consent rights in a

language he or she fully understands before being subjected to such testing.

According to Defendant, because he is not a native English speaker, and he was only

orally informed of his implied consent rights in English before being subjected to

breath alcohol testing, the results were inadmissible. We disagree.

       N.C. Gen. Stat. § 20-16.2(a) states that “[a]ny person who drives a vehicle on a

highway or public vehicular area thereby gives consent to a chemical analysis if

charged with an implied-consent offense.” N.C. Gen. Stat. § 20-16.2(a) (2013). Our


       1Defendant   failed to enter a timely notice of appeal and has, therefore, petitioned our Court
for certiorari. We hereby grant the petition.

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                                  Opinion of the Court



Supreme Court has held that the purpose of this statute is to promote cooperation

between law enforcement and the driving public in the collection of scientific

evidence, thereby ensuring public safety while safeguarding against the risk of

erroneous driving privilege deprivation. Seders v. Powell, 298 N.C. 453, 464-65, 259

S.E.2d 544, 552 (1979).    The statute provides that a law enforcement officer or

chemical analyst who administers a breath alcohol test based on a suspected

commission of an implied consent offense “shall” inform the motorist suspected of the

offense “orally and also . . . in writing” about his or her rights and the consequences

of refusing to submit to testing. N.C. Gen. Stat § 20-16.2(a). However, the statute

also provides that a person who is unconscious or is otherwise unable to refuse testing

may nevertheless be subject to testing and that the requirements related to informing

the motorist of his or her rights and the consequences of refusal are inapplicable. Id.

§ 20-16.2(b). Thus, neither the plain language nor the statutory purpose of § 20-16.2

disclose a legislative intent by our General Assembly to condition the admissibility of

chemical analysis test results on a defendant’s subjective understanding of the

information officers and chemical analysts are required to disclose before conducting

the testing. See, e.g., State v. Carpenter, 34 N.C. App. 742, 744, 239 S.E.2d 596, 597

(1977) (“Having placed the information in writing before the defendant, the operator

was not required to make defendant read it. If this were so, any belligerent or




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                                  Opinion of the Court



uncooperative defendant could defeat the evidence of the [] test results by merely

refusing to read the information that was placed before him.”).

      In the present case, we hold that the notice requirement of N.C. Gen. Stat.

§ 20-16.2(a) was met notwithstanding the fact that English is not Defendant’s native

language. The record reveals that Defendant was informed of his rights orally and

in writing as required by statute, and that while the oral notification was in English,

the written notification was in Spanish. There was no evidence presented to suggest

that Defendant was illiterate in Spanish. In its enactment of the requirements of

subsection (a) of N.C. Gen. Stat. § 20-16.2, we believe that the General Assembly

intended to require the disclosure of the information set out in that subsection, but

not to condition the admissibility of the results of chemical analysis on the

defendant’s understanding of the information thus disclosed. See Carpenter, 34 N.C.

App. at 744, 239 S.E.2d at 597. Therefore, we hold that the trial court did not err in

allowing the test results to be admitted into evidence over Defendant’s objection.

Accordingly, this argument is overruled.

                                   III. Conclusion

      We believe that Defendant received a fair trial, free from error.

      NO ERROR.

      Judges GEER and HUNTER, JR., concur.




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