State v. Holton

CARSON, Judge.

The defendant contends that the trial court committed error in allowing the arresting officer to testify as to the results of the physical performance tests given to the defendant at the police station. Defendant says he was not advised of his right to refuse the tests and the officer should not have been allowed to administer the tests because no foundation was laid as to the qualifications of the patrolman to administer the coordination tests. The defendant contends that since these requirements must be satisfied before the breathalyzer can be given, they must also be satisfied before any performance tests can be given. These contentions are without merit. The privilege against incrimination relates only to testimonial or communicative acts and does not apply to tests such as balance tests. Schmerber v. California, 384 U.S. 757, 86 S.C. 1826, 16 L.Ed. 2d 908; State v. Strickland, 5 N.C. App. 338, 168 S.E. 2d 697 (1969), rev’d on other grounds, 276 N.C. 253, 173 S.E. 2d 129 (1970). The administering of the breathalyzer requires certain skills not possessed by the general public, State v. Eubanks, 283 N.C. 556, 196 S.E. 2d 706 (1973) ; State v. Powell, 10 N.C. App. 726, 179 S.E. 2d 785 (1971); while the administration of the balance tests can be done by anyone.

On cross-examination of the defendant the solicitor asked him the following question, “The Oasis Club is a beer joint, isn’t it?” The defendant contends that this question is extremely prejudicial. He alleges that it implies that a person who goes to the club goes there to drink beer and nothing else, and that the use of the word “joint” carries a connotation of unwholesomeness and immorality. He contends that these two implications together were designed to and did picture the defendant an “an immoral degenerate who was drinking beer.” This contention is also without merit. Wide latitude is provided to the defense counsel and to the solicitor on cross-examination. State v. Ross, 275 N.C. 550, 169 S.E. 2d 875 (1969) ; State v. Diaz, 14 N.C. App. 730, 189 S.E. 2d 570 (1972). Clearly, the trial *29court did not abuse its discretion in allowing this question to be asked the defendant.

Other assignments of error presented by the defendant have been considered carefully. We hold that they, also, lack merit and that the defendant received a fair and impartial trial.

No error.

Judges Britt and Hedrick concur.