State v. Hurley

BROCK, Chief Judge.

Defendant concedes that if there is no error in his trial and conviction in case No. 75CR157, there is likewise no error in the revocation of his probation in case No. 71CR2314.

The primary thrust of defendant’s appeal is that the trial court committed error in allowing the breathalyzer test results in evidence. Defendant sought and was denied a voir dire hearing upon whether the breathalyzer operator followed each and *480every procedural step prescribed by the Commission for Health Services. It seems to be defendant’s contention that the trial judge was obligated to permit the voir dire; that the State.was obligated to prove that the operator had followed each and every procedural step prescribed; that the defendent was entitled, on voir dire, to cross-examine the operator upon the manner in which he followed each and every procedural step; and that the trial judge, before allowing the test results in evidence, must find that the operator followed each and every procedural step prescribed. We reject the argument that such a voir dire and findings are required.

We have reviewed the records, the arguments, and opinions in State v. Powell, 10 N.C. App. 726, 179 S.E. 2d 785 (1971), and in State v. Powell, 279 N.C. 608, 184 S.E. 2d 243 (1971). It appears that the present appeal is merely “that same old raccoon with nothing new except another ring around its tail.”

The operator in this case testified that he held a valid permit issued by the Department of Human Resources and that he followed the prescribed techniques as set out by the Division of Health Services. This evidence satisfied the requirements of G.S. 20-139.1 and entitled the test results to be admitted into evidence. Obviously defendant was not bound by this testimony and, in the presence of the jury, was entitled to cross-examine the operator within reasonable limits and to impeach his testimony if possible. Actually, in this case, defense counsel was allowed wide latitude in cross-examination of the operator, and such cross-examination was conducted at length. It appears the jury was not impressed that the operator’s testimony had been impeached.

Defendant’s argument that he was entitled to have the alternate issue of reckless driving submitted to the jury is not supported by the evidence.

We have considered all of defendant’s assignments of error and find them to be without merit.

No error in case No. 75CR157.

Affirmed in case No. 71CR2314.

Judges Britt and Morris concur.