Implied Consent

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New case on Implied consent and and how it relates to breathalizers and blood test.  Thank you to Shea Denning from the NCSOG for the post.

The U.S. Supreme Court waded into the murky waters of implied consent law this term in Birchfield v. North Dakota. The opinion it issued last week clarified important aspects of the relationship between chemical testing for impairment and the Fourth Amendment, but failed to distill a coherent theory of implied consent. Here’s what we know after Birchfield:

• Warrantless breath testing of impaired driving suspects is permissible under the Fourth Amendment as a search incident to arrest. A person who refuses to submit to such testing may be subjected to sanctions ranging from license revocation to criminal prosecution.
• Warrantless blood testing of impaired driving suspects is not permissible under the Fourth Amendment as a search incident to arrest. Thus, a warrant or a suspect’s consent is required to conduct such testing. A person who refuses to submit to such testing may not be criminally prosecuted for that refusal.

Three cases were consolidated for oral argument and decision in Birchfield.
Blood test refusal. In Birchfield v. North Dakota, the defendant was arrested for driving while impaired.  The officer advised him that North Dakota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Birchfield refused to let his blood be drawn. He was thereafter prosecuted for his refusal, a misdemeanor crime. The North Dakota Supreme Court affirmed his conviction.
Breath test refusal. In Bernard v. Minnesota, the defendant was arrested for driving while impaired.  The officer advised him that Minnesota law required him to undergo chemical testing and that, if he refused testing, he could be criminally prosecuted. Notwithstanding the warning, Bernard refused to submit to a breath test. He was prosecuted criminally for his refusal. Because he had four prior impaired driving convictions, Bernard’s refusal was punishable by up to seven years imprisonment. The Minnesota District Court dismissed the charges on the basis that warrantless breath testing was not permitted under the Fourth Amendment.  The state court of appeals reversed, and the state supreme court affirmed the court of appeals.
Blood test with consent. In Beylund v. Levi, the defendant was arrested for driving while impaired and was taken to a hospital.  There he was informed that under North Dakota law, he was required to submit to chemical testing and that failure to do so was a crime. Beylund agreed have his blood drawn and analyzed. Because the resulting alcohol concentration revealed a blood alcohol concentration of 0.25, Beylund’s license was suspended for two years.  He appealed from the suspension, arguing that he did not voluntarily consent to the search, but only did so to avoid criminal prosecution for refusing. The North Dakota Supreme Court rejected Beylund’s argument.
Though their circumstances differed, each petitioner’s claim rested on his assertion that the criminal law cannot compel a person to submit to chemical testing unless a warrant is issued authorizing such testing.
Permissible search incident to arrest?  Writing for the majority, Justice Alito first considered whether the chemical testing of an impaired driving suspect’s breath or blood could be carried out as a warrantless search incident to arrest. The Court explained that the authority to search a person incident to arrest was a categorical rule that did not depend upon the characteristics of a particular arrestee.  The Court then employed the test it had used in Riley v. California, 573 U.S. __ (2014), to determine whether a given type of search should be exempted from the warrant requirement:  Does the need for the search in light of a legitimate government interest outweigh the individual’s privacy interest?
Breath tests. The Court characterized the physical intrusion involved in breath testing as “almost negligible,” and observed that breath tests reveal “only one bit of information,” namely “the amount of alcohol in the subject’s breath.” Slip op. at 20-21. Moreover, the court opined that participation in a breath test does not greatly enhance the embarrassment already inherent in any arrest.
Blood tests. Blood tests are different. The process is “significantly more intrusive than blowing in a tube” as it requires piercing of the skin. Slip op. at 23. And even though such tests involve little pain or risk, people do not relish the process. Moreover, blood samples can provide information beyond a person’s blood alcohol concentration.
State’s interest. The states and the federal government have a paramount interest in keeping public highways safe.  Alcohol consumption is the leading cause of traffic deaths. To deter driving while impaired, states have adopted per se blood alcohol concentration levels and have adopted implied consent laws to induce drivers to submit to chemical testing. States first punished refusal by suspending a driver’s driving privileges.  Some states then upped the ante, prosecuting such refusals as a crime. These laws are designed to provide an incentive to cooperate with testing and thus serve an important function.
Holding. Weighing these interests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The Court found no justification, however, for demanding a blood test as a search incident to arrest. Blood tests are significantly more intrusive, and the State may require the less invasive alternative of a breath test.
Implied consent? The Court next considered whether a warrantless blood tests could be justified based on a driver’s legally implied consent. Noting that prior opinions “have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply,” the Court cautioned that “nothing we say here should be read to cast doubt on them.” Slip op. at 36.
The Court distinguished the laws in the cases before it from the general concept of implied consent laws with civil penalties.  North Dakota and Minnesota not only mandate blood testing but also impose criminal penalties for the refusal to cooperate.  The Court explained that the consequences to which motorists may be deemed to have consented by driving on public roads must be reasonable. The Court concluded that deeming a driver to have consented to a blood test under threat of criminal prosecution was an unreasonable requirement.
Applying its conclusions to the cases before it, the court ruled as follows:
Birchfield: The blood draw that Birchfield refused cannot be justified as a search incident to arrest or based on implied consent. Moreover, there was no exigency. Because Birchfield was threatened with an unlawful search, the Supreme Court reversed his conviction for refusing that search.
Bernard: The breath test that Bernard refused was a permissible search incident to arrest. Officers did not need a warrant to carry out the test, and Bernard had no right to refuse search. Thus, the court affirmed Bernard’s conviction.
Beylund: Beylund submitted to a blood test after being warned that if he did not, he would be criminally prosecuted. That warning was partially inaccurate as he could not lawfully be prosecuted for such a refusal. Thus, the Supreme Court remanded Beylund’s case for a determination by the state court as to whether Beylund’s consent was voluntary.
Birchfield fails to coherently explain the theory of implied consent. The Court did not address whether a person’s refusal to submit to a warrantless blood test may be sanctioned by the revocation of a person’s license. Different parts of the opinion point to different conclusions about that issue. On the one hand, Birchfield went out of its way not to throw shade on implied consent laws that impose civil rather than criminal penalties for refusing chemical testing. That portion of the opinion indicates that implied consent laws that impose civil or administrative penalties do not abridge a suspect’s constitutional rights. On the other hand, Birchfield’s consideration of whether chemical testing is a search incident to arrest suggests that implied consent laws don’t dictate what measures are reasonable under the Fourth Amendment.  And if it isn’t reasonable under the Fourth Amendment to require a person’s submission to a warrantless breath test, then how can a person be sanctioned for that refusal, regardless of whether the sanction is civil or criminal in nature?
Birchfield further indicates that consent is to be determined based on the totality of all the circumstances rather than by a legal construct that implies a driver’s consent to such testing. Many courts with implied consent laws have assumed the voluntariness of a suspect’s acquiescence to testing when it follows implied consent warnings. But see Williams v. State, 771 S.E.2d 373 (Ga. 2015) (discussed here, holding that impaired driving suspect’s agreement to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement).
Impact in NC. Unlike North Dakota and Minnesota, North Carolina does not impose criminal penalties for refusing implied consent testing. Instead, G.S. 20-16.2 requires license revocation (and renders the fact of refusal admissible at the person’s criminal trial) as a consequence of such a refusal. Thus, much of what the court decided in Birchfield will not affect NC.  The Court’s holding that warrantless blood testing under a state’s implied consent law is not permissible as a search incident to arrest is, however, significant for NC. Birchfield makes clear that law enforcement officers in NC who desire to test an impaired driving suspect’s blood for evidence of impairment must obtain a warrant, a person’s consent, or rely upon exigent circumstances to lawfully conduct such testing. Thus, Birchfield affirms the court of appeals’ conclusion in State v. Romano, ___ N.C. App. ___, 785 S.E.2d 168 (2016) (discussed here) that the warrantless withdrawal of blood from an unconscious impaired driving suspect runs afoul of the Fourth Amendment, notwithstanding provisions of NC’s implied consent law that authorize such testing. And, as noted above, Birchfield may also broaden the inquiry into whether a suspect’s consent to testing was voluntary.

When is your registration really due?

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Great article by Shea Denning of NCSOG.

Facts. An undercover Greensboro narcotics detective was monitoring the activities of passengers who disembarked from a bus early in the morning of October 6, 2014, when the actions of one passenger caught his attention. The passenger and his companion got off of the bus and walked into a nearby convenience store. The passenger came back out of the store a couple of minutes later, walked backwards towards the detective’s unmarked car, looked into the car, shooed the detective away, and walked back into the store. A burgundy Buick then pulled into the parking lot. The bus passenger got into the passenger seat of the Buick and his companion got into the right rear seat. The Buick then left the parking lot. The detective entered the Buick’s license plate into his mobile computer terminal, which accessed information from the Division of Motor Vehicles (DMV). The detective, who suspected the pair of drug trafficking activity, subsequently radioed other officers to report that the Buick’s registration was expired and that it “had an inspection violation.”
Another detective received the alert and independently typed the license plate information into his computer. The report from DMV showed that the Buick’s license plate was issued on 9/26/2013, that its status was “EXPIRED,” and that the plate was “VALID THRU: 10152014.” The DMV report contained no information about the status of the car’s inspection. Based on this information, the detective stopped the vehicle and told the driver, Sandy Baskins, that he had been stopped for an expired registration and inspection violation. Baskins consented to a search of the car. A drug-trained dog alerted to the front and rear passenger seats. All three passengers were searched, and officers found heroin inside the pants of the rear seat passenger.
Procedure. The driver, Sandy Baskins, was indicted for trafficking in heroin. He filed a motion to suppress evidence resulting from the traffic stop. The trial court denied the motion. Baskins was convicted at trial and appealed.
Court of Appeals. Baskins challenged the trial court’s findings of fact that the registration and inspection for the Buick had expired. With respect to the registration, the court of appeals cited the rule in G.S. 20-66(g) that permits operation of a vehicle until midnight on the fifteenth day of the month following the month in which the sticker expires
Thus, the court concluded that “[a]s far as the registration was concerned, Defendant was operating the Buick lawfully, and Detective O’Hal was provided confirmation of this fact in the information he requested and received from DMV.” (Slip op. at 7-8).
As for the inspection, the court noted that the DMV screen the officers examined did not contain information about the vehicle’s inspection. Thus, the record did not contain substantial evidence that the Buick was being operated with an expired inspection status.  (Unfortunately for procrastinators like me, there is no fifteen day grace period to obtain a vehicle inspection. See G.S. 20-183.4C(a)(6).)
The appellate court thus overruled the objected-to findings of fact.
But the appellate court did not reverse Baskins’ conviction. Instead, the court of appeals determined that the trial court had not made a proper conclusion of law when it found that “[t]he temporary detention of a motorist upon probable cause to believe he has violated a traffic law (such as operating a vehicle with expired registration and inspection) is not inconsistent with the Fourth Amendment . . . . O’Hal was justified in stopping Defendant[s’] vehicle.”
The court of appeals explained that while this conclusion “intimates that Detective O’Hal was justified in initiating the stop based upon either the alleged registration violations or the alleged inspection violation . . . it does not actually make any such conclusion.” (Slip Op. at 12.)
Thus, the court remanded for “further action consistent with this opinion, including making additional findings of fact and conclusions of law as necessary.” (Slip Op. at 13.) The appellate court stated that the trial court had discretion to take additional evidence “in order to comply with this holding.” Id. (citing State v. Gabriel, 192 N.C. App. 517 (2008) (vacating order denying motion to suppress and remanding for additional evidence where trial court failed to enter a written suppression order containing findings of fact or conclusions of law)).
Down to the wire. I thought everyone knew that a vehicle could not be stopped for an expired NC registration during the fifteen-day grace period following expiration. Now that the court of appeals has cleared up any doubt about that issue, NC motorists can continue to drive halfway through the month that follows the expiration of their vehicles’ registrations without worry of being stopped for a violation of G.S. 20-66. It remains to be seen, however, whether the application of this rule will result in a new trial for Sandy Baskins.

Can you Serve Alcohol to Your Children at Home

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The answer is NO.

Take a look at the following articles.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.
That’s right.  You may not sit your so-far-over-21-that-I-don’t-really-remember-my-younger-self on the beach on the first unofficial day of summer and enjoy a strawberry daiquiri (unless you leave the liquor out). But don’t despair. You may drink a beer or sip some wine.
Alcoholic beverages in North Carolina are regulated under Chapter 18B of the General Statutes. Alcoholic beverages include malt beverages (such as beer), wine, liquor, and mixed beverages. The general rule is that a person may only have liquor and fortified wine (wine with more than 16 percent alcohol) in places expressly permitted by statute. See G.S. 18B-301(f)(4). The rule for beer and unfortified wine (wine with 16 percent or less alcohol) is the opposite: A person who is at least 21 years old may possess beer and wine anywhere except where it is expressly prohibited. See G.S. 18B-300.  Local government lawyers might think of this as home rule for beer and wine.
Where may one lawfully drink liquor and fortified wine? 
At home. A person who is at least 21 years old may possess any amount of liquor and fortified wine at his or her home or a temporary residence, such as a hotel room.
Up to 8 liters at other locations. A person also may possess up to 8 liters of liquor and fortified wine (combined) at:

• another person’s residence with that person’s consent;
• any other property not primarily used for commercial purposes and not open to the public at the time the alcoholic beverage is possessed, if the owner or other person in charge of the property consents; and
• a restaurant, hotel, private club, community theatre, or a veterans organization with a brown-bagging permit.

At special occasions. A person may possess any amount of fortified wine or liquor for a private party, private reception, or private special occasion, at:

• Any property not primarily used for commercial purposes, which is under the person’s exclusive control and supervision, and which is not open to the public during the event; and
• The licensed premises of a restaurant, hotel, eating establishment, private club, or convention center for which the ABC Commission has issued a special occasions permit if the person is the host of that private function and has the permission of the permittee.

Just as a person may possess fortified wine and liquor at the aforementioned places, he or she also may consume such beverages at any such location. G.S. 18B-301(d).
At a place with a permit. And, of course, the consumption of fortified wine and liquor is permissible at a location with on-premises fortified wine and mixed beverage permits. G.S. 18B-1001. An on-premises fortified wine permit may be issued to a restaurant, hotel, private club, community theatre, winery, or a convention center. A mixed beverage permit may be issued to any of these types of establishments other than a winery and also may be issued to a nonprofit or political organization.
Not on the beach.  Beaches do not constitute the sort of premises for which a permit may be issued authorizing the possession and consumption of fortified wine or mixed drinks.  While the dry sand portion of the beach – generally the area above the high tide line – may be privately owned, private persons cannot exercise the exclusive control over beaches that is required to authorize the possession of fortified wine and liquor pursuant to G.S. 18B-301(c)(2). Ocean beaches in North Carolina have “from time immemorial” been open to the public for its free use and enjoyment. G.S. 77-20.  Thus, even the owners of dry sand portions of the beach lack the ability to exclude the public from access. See Nies v. Town of Emerald Isle, __ N.C. App. ___, ___, 780 S.E.2d 187, 196 (2015) (“[P]ublic right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness. Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”).
Beer and wine.  I mentioned earlier that a person who is at least 21 years old may possess and consume beer and unfortified wine anywhere except where it is specifically prohibited. No state law prohibits a person who is at least 21 years old from possessing and consuming beer and wine on public beaches. Indeed, the town where I vacation most often, Emerald Isle, adopted an ordinance expressly stating that such possession and consumption is lawful. Emerald Isle, like many cities and towns, does prohibit the consumption of beer, wine and other alcoholic beverages on its public streets and on other public property in the town. See 18B-300(c)(1)(authorizing cities and towns to adopt such regulations).
What’s the penalty? Possession or consumption of fortified wine or liquor on unauthorized premises is a Class 1 misdemeanor. G.S. 18B-301(f)(2), -102(b). The offense is waivable, meaning that one may plead guilty to the offense in writing and pay a fine of $25 plus $203 in court costs in lieu of appearing in court. There were nearly 600 such charges last year, 9 in Carteret County and 55 in New Hanover County.
So, if you’d rather stay on the beach and out of court this summer, forget about that daiquiri and have a Bud Light or some muscadine wine instead.

Fines and Court costs a barrier between court system and the poor

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Great article on how the Department of Justice is starting to crack down on courts and judges who are levying excessive court costs and fine that are becoming a barrier between the poor and the criminal justice system.

WASHINGTON — The Justice Department on Monday called on state judges across the country to root out unconstitutional policies that have locked poor people in a cycle of fines, debt and jail. It was the Obama administration’s latest effort to take its civil rights agenda to the states, which have become a frontier in the fight over the rights of the poor and the disabled, the transgender and the homeless.

In a letter to chief judges and court administrators, Vanita Gupta, the Justice Department’s top civil rights prosecutor, and Lisa Foster, who leads a program on court access, warned against operating courthouses as for-profit ventures. It chastised judges and court staff members for using arrest warrants as a way to collect fees. Such policies, the letter said, made it more likely that poor people would be arrested, jailed and fined anew — all for being unable to pay in the first place.

It is unusual for the Justice Department to write such a letter. It last did so in 2010, when the department told judges that they were obligated to provide translators for people who could not speak English. The letters do not have the force of law, but they declare the federal government’s position and put local officials on notice about its priorities.

Ms. Gupta said that in some cities, hefty fines served as a sort of bureaucratic cover charge for the right to seek justice. People cannot even start the process of defending themselves until they have settled their debts.

“This unconstitutional practice is often framed as a routine administrative matter,” Ms. Gupta wrote. “For example, a motorist who is arrested for driving with a suspended license may be told that the penalty for the citation is $300 and that a court date will be scheduled only upon the completion of a $300 payment.”

The letter echoes the conclusions of the Justice Department’s investigation of the Police Department and court in Ferguson, Mo. Investigators there concluded that the court was a moneymaking venture, not an independent branch of government. Ms. Gupta, who oversaw that investigation, has often cited Ferguson as a cautionary tale in her speeches, describing how fines for minor offenses like jaywalking pulled people into the criminal justice system and made it impossible to escape.

The Obama administration has used letters, both in and out of court, to help push the boundaries of civil rights law. In dozens of lawsuits around the country, many of which involved local disputes, the Justice Department has filed so-called statements of interest, throwing its weight behind private lawsuits. It has filed such statements in matters involving legal aid for the poor, transgender students, juvenile prisoners and people who take videos of police officers.

After the 2010 letter, the Justice Department opened investigations into the court systems in Colorado and North Carolina.

The department has broad authority to determine how the nation’s laws are enforced and, in many ways, how criminal defendants are treated in the nation’s 94 Federal District Courts. But most people interact only with the local or state courts, and that is where their impressions of the fairness of the American judicial system are formed.

Equal access to the courts is a constitutional right, and both Attorney General Loretta Lynch and her predecessor, Eric H. Holder Jr., made court treatment a priority. Ms. Lynch recently spoke in forceful terms about Ferguson, and has called for fairness in how courts set bail, levy fines and determine sentences.

“When bail is set unreasonably high, people are behind bars only because they are poor,” Ms. Lynch said at the White House in December. “Not because they’re a danger or a flight risk — only because they are poor. They don’t have money to get out of jail, and they certainly don’t have money to flee anywhere. Other people who do have the means can avoid the system, setting inequality in place from the beginning.”

The issue has helped forge alliances between liberal civil rights groups and conservative organizations. Grover Norquist, the conservative activist, spoke last year at a White House summit meeting on poverty and incarceration. The Institute for Justice, a libertarian organization, has brought lawsuits accusing cities of using court fines to raise revenue.

Ms. Gupta wrote in her letter that courts were obligated to consider whether defendants were able to pay their fines. And she discouraged judges from using license suspensions as a punishment for missed payments. Doing so, she wrote, made it harder for people to get to work and to court, and made it more likely that they would fall further behind in their payments or face new penalties for missing court appointments.

Some courts hire private contractors to run their probation departments, and Ms. Gupta raised concerns about agreements that allow those contractors to profit from discretionary fines that the companies themselves get to issue.

Along with the letter, the Justice Department announced on Monday that it would offer $2.5 million in grants to help courts change their policies on fines.

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When does the State get to ask for a New Trial in DWI Cases

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We know that the Defendant is entitled to a Trial De Novo from District Court in criminal matters in North Carolina.  The question is whether the State has that same right.  Below is a review of a new case on the subject.

f you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.
So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

The first nine pages. I summarized the procedural history of State v. Miller here.  Yesterday’s opinion is the court of appeals’ response to the remand from the state supreme court.
Implied consent procedures. Miller arises from litigation in an impaired driving case.  District court judges in DWI cases don’t just rule on motions to suppress and dismiss as they do in other cases. Instead, they must enter preliminary determinations, which the State may appeal to superior court. If the State disputes the findings of fact as well as the proposed legal ruling, the superior court’s review is de novo. That type of review requires that the superior court hold a new hearing on the matter and that it rule without consideration of the proceedings below. If the State does not dispute the district court’s factual findings, the superior court does not hold a new evidentiary hearing. Instead, it simply determines whether the district court’s findings support its legal conclusions.
Who gets de novo review? A central issue in the Miller litigation is whether the State must identify the specific findings of fact to which it objects in its notice of appeal in order to obtain de novo review. Yesterday’s opinion says that the governing statutes, G.S. 20-38.7 and G.S. 15A-1432, impose no such requirement. Thus, the State’s general objection to the district court’s findings in Miller and its request for a de novo hearing were sufficient to trigger that level of review.
Unless the Senior Resident says otherwise. Yesterday’s Miller opinion notes, however, that soon after the State in that case appealed the district court’s determination to superior court, the Senior Resident Superior Court Judge for the 26^th District entered an administrative order requiring that “[w]henever the State appeals from a district court preliminary determination granting a motion to suppress or dismiss as permitted by G.S. 20-38.7, the State shall specify with particularity in its written notice of appeal those findings of fact made by the district court, or portions thereof, which the State disputes in good faith.”  The administrative order states that “a broadside exception to the district court’s findings of fact is not permitted.”  It further requires that, before the superior court hearing on the State’s appeal, counsel for the defendant and the assistant district attorney confer and “make a good faith effort” to stipulate to any facts that are not in dispute.” Any resulting stipulations must be written, signed, and filed with the clerk.
The Miller court cites G.S. 7A-41.1(c) for the proposition that the senior resident superior court judge “has the authority to enter local rules and administrative orders governing practices and procedures within that Judicial District.” G.S. 7A-41.1(c) doesn’t spell out that authority, however. Instead, it states that senior resident superior court judges must discharge all of the constitutional and statutory duties placed upon a regular resident superior court judge that do not relate to a case, controversy or judicial proceeding and which do not involve the exercise of judicial power. My former colleague, Michael Crowell, set out the duties of the senior resident superior court judge in this helpful paper.  I can’t find a duty that permits adoption of enhanced notice of appeal requirements such as the one cited in Miller. Perhaps readers better versed in this field than I may be able to identify an authorizing provision.
In any event, this portion of the latest Miller opinion is dicta as the administrative rule was adopted after Miller’s appeal and thus did not apply to the State’s notice in that case.
Maybe we’ll hear more about the administrative order in a future appellate case. But please let this be the last we hear of State v. Miller.

Thank you to the NC School of Government for the review.

New caselaw on HGN Testimoney

Great new case on the State using HGN testimony.  This case requires that the officer be qualified as an expert under Daubert.

Court of Appeals of North Carolina.

STATE of North Carolina v. William Edward GODWIN, III, Defendant.

No. COA15–766.

    Decided: April 19, 2016

Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant.

Appeal by defendant from judgment entered 15 November 2013 by Judge Gary M. Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January 2016. Mecklenburg County, No. 11 CRS 202887.
William Edward Godwin, III (defendant), appeals his conviction for driving while impaired following a jury trial in superior court. The question for decision is whether Rule 702(a1) of the North Carolina Rules of Evidence requires a witness to be qualified as an expert before he may testify to the issue of impairment related to HGN test results. We hold that it does.
I. Background
The State's evidence at trial tended to show the following: On 18 January 2011, at approximately 10:14 p.m., Daniel Kennerly, an officer with the Charlotte Mecklenburg Police Department, observed defendant driving fourteen miles per hour over the posted speed limit and executed a traffic stop. When he approached the vehicle, Officer Kennerly noticed that defendant's eyes were red and glassy, and he detected a strong odor of alcohol coming from defendant's breath. Officer Kennerly asked defendant where he was coming from and how much alcohol, if any, he had consumed that evening. In response, defendant stated that he had just left a restaurant where he had consumed three beers. Officer Kennerly then asked defendant to step out of his vehicle and began an investigation for impaired driving.
As part of his investigation, Officer Kennerly administered three field sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn, and the one-leg stand. He observed four out of six possible indicators of impairment during the HGN test, six out of eight possible indicators during the walk-and-turn, and two out of four possible indicators during the one-leg stand. At that time, Officer Kennerly placed defendant under arrest for driving while impaired and transported him to the Mecklenburg County Sheriff's Office's Intoximeter site to perform a EC/IR II breath test. The results of the Intoximeter showed that defendant's blood-alcohol concentration was .08.
On 20 December 2011, defendant was convicted in Mecklenburg County District Court of driving while impaired. He appealed to superior court, and the matter came to trial at the 12 November 2013 Criminal Session of the Superior Court for Mecklenburg County. At trial, defendant objected to Officer Kennerly's HGN testimony, arguing that the officer had to be qualified as an expert under Rule 702 of the North Carolina Rules of Evidence before such testimony could be admitted. Over defendant's objections, the trial court allowed Officer Kennerly to testify, based on his training and experience, as to his administration of the HGN test, the indicators of impairment, and his opinion regarding defendant's impairment based on the indicators which he observed. At the conclusion of the trial, the jury found defendant guilty of driving while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant first argues that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results. Specifically, defendant maintains that Rule 702(a1) requires a party offering testimony about the results of an HGN test to do so through a properly qualified witness who has been accepted as an expert by the trial court. Defendant contends, therefore, that in overruling his objection and allowing Officer Kennerly to offer such testimony as a lay witness, the trial court acted under a misapprehension of the law.
“Issues of statutory construction are questions of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264, 664 S.E.2d 569, 575 (2008)). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North Carolina Supreme Court first addressed the admissibility of HGN evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On discretionary review, the Court agreed with our conclusion that “the HGN test does not measure behavior a lay person would commonly associate with intoxication, but rather represents specialized knowledge that must be presented to the jury by a qualified expert.” Id. at 581, 504 S.E.2d at 295 (emphasis added); see also State v. Helms, 127 N.C.App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a scientific principle that the extent and manner in which one's eye quivers can be a reliable measure of the amount of alcohol one has consumed.” (citation omitted)), rev'd on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant that under the prior version of Rule 702, the State had to show, inter alia, that the methodology underlying the test was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly applied to the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence was admitted, and no inquiry conducted, as to the reliability of HGN testing, the Court held that it was error to admit an officer's testimony regarding the results of the HGN test administered on the defendant. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms was decided, the North Carolina General Assembly passed House Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6. Rule 702(a1) provides, in pertinent part, as follows:
(a1) A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1, Rule 702(a1) (2015). The first sentence of this subsection contemplates that testimonial evidence concerning HGN test results be offered by an expert witness. Although the prior version of Rule 702(a) was still in effect when subsection (a1) was added, the bases on which a witness may be qualified as an expert are the same under the current version. Rule 702(a), as amended, provides as follows:
(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C. Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C. Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.”).
In accordance with Helms, therefore, Rule 702(a1) requires that before a witness can testify as to the results of an HGN test, he must be “qualified as an expert by knowledge, skill, experience, training, or education.” See Helms, 348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so qualified and “proper foundation” is established, the witness may “give expert testimony ” as to the HGN test results, subject to the additional limitations in subsection (a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1) (emphasis added). Namely, the expert witness may testify “solely on the issue of impairment and not on the issue of specific alcohol concentration,” and the HGN test must have been “administered by a person who has successfully completed training in HGN.” Id. (emphasis added).
In the case sub judice, although Officer Kennerly completed a training course in DWI detection and standardized field sobriety tests, there was never a formal offer by the State to tender him as an expert witness. In fact, after conducting its own voir dire, the trial court rejected defendant's contention that Officer Kennerly must be qualified as an expert before testifying as to the results of the HGN test:
THE COURT: I will allow this officer to testify that he administered the HGN test, the walk-and-turn test, and the one-legged test. He will be allowed to testify as to the indicators of impairment he observed of this defendant in giving these tests. Anything else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not going to make that requirement.
Thereafter, over defendant's objection, Officer Kennerly testified that he “observed four out of six” possible clues during the HGN test, which “indicates a probability that the person could be impaired as a result of the consumption of alcohol.” Furthermore, based on his interactions with defendant and defendant's performance on all of the field sobriety tests, including the HGN test, Officer Kennerly opined that defendant's “mental and physical faculties were appreciably impaired as a result of the consumption of some impairing substance, that substance in this case being alcohol.” Our application of Rule 702(a1) to the facts of this case leads us to conclude that the trial court erred in allowing a witness who had not been qualified as an expert under Rule 702(a) to testify as to the issue of impairment based on the HGN test results.
The State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674 S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010), nevertheless argues for an interpretation of Rule 702(a1) that would not require an arresting officer who administered the HGN test to be qualified as an expert before testifying as to the HGN test results and the issue of impairment related thereto. Unlike this case, however, the arresting officer in Smart was qualified as an expert under Rule 702 before she testified as to her administration of the test. Id . at 755–56, 674 S.E.2d at 685–86. And although the defendant's argument, as it was initially phrased, attacked the officer's qualifications as an expert witness, the defendant's actual challenge went toward the testimony itself: “[The defendant] in fact specifies that his argument pertains to whether the officer's ‘method of proof’—that is, the nystagmus testing—is sufficiently reliable as a basis for expert testimony.” Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at 640 (“Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness ․ is qualified as an expert to apply this method to the specific facts of the case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this argument, we explained that, at least under the prior version of Rule 702(a), before admitting expert opinion testimony the trial court had to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639); see also N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions concerning the qualification of a person to be a witness ․ or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).”). At that time, we interpreted subsection (a1) “as obviating the need for the State to prove that the HGN testing method is sufficiently reliable.” Id. Our holding in Smart went no further, and it has no application here. While some may even question whether Smart survives the amendment to Rule 702(a), that issue is not the one presently before us.
Having concluded that the trial court erred in admitting Officer Kennerly's testimony, we must now determine whether the error was prejudicial so as to warrant a new trial. “In order to establish prejudicial error in the erroneous admission of the HGN evidence, defendant must show only that had the error in question not been committed, a reasonable possibility exists that a different result would have been reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen.Stat. § 15A–1443(a) (1997)).
The remaining evidence presented at trial shows the following: (1) Officer Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated the stop, defendant activated his turn signal, pulled onto the next side street, and came to a stop at roadside in a safe location; (3) defendant was not weaving, and he made no sharp or sudden turns to avoid the traffic stop; (4) two experts testified that they would have expected to see some indicators of impairment which defendant did not exhibit while operating the vehicle; (5) defendant had no problem retrieving his license or registration; (6) defendant did not tilt his head away from Officer Kennerly or otherwise try to avoid contact with him; (7) Officer Kennerly noticed that defendant's eyes were red and glassy, and he smelled a “strong odor of an alcoholic beverage coming from his breath”; (8) one expert testified that “the odor of alcohol is simply an indicator of presence of alcohol” and that there is “no basis for an opinion that correlates the strength of an odor to ․ blood alcohol concentration in the body”; (9) defendant told Officer Kennerly that he had just left a restaurant where he had consumed three beers that evening; (10) when asked to step out of the vehicle, defendant removed his seatbelt without difficulty, he did not use the doorframe or the vehicle for support while exiting, and he did not stagger or sway once he was out of the vehicle; (11) Officer Kennerly observed six out of eight possible clues during the walk-and-turn test, and two out of four possible clues on the one-leg stand test; (12) defendant repeatedly told Officer Kennerly that he had to use the restroom, and two experts agreed that defendant's need to urinate could have adversely affected his performance on the tests; (13) one of the experts, who reviewed the video from Officer Kennerly's dash camera, testified that Officer Kennerly should not have counted three of the six clues he observed during the walk-and-turn test; that the steep grade of the road where defendant performed the one-leg stand could have adversely affected defendant's performance on the test; and that the presence of traffic on the narrow road where the tests were administered, along with the cold weather that evening, could also have affected defendant's performance on the tests; (14) Helen Godwin, defendant's mother, testified that when she saw defendant at the police station, his eyes were not red or glassy, he did not smell of alcohol, his speech was normal, and she did not believe he was impaired; (15) after being placed under arrest and transported to the Intoximeter site, defendant registered a .08 on the Intoximeter. Based on the foregoing, particularly the conflicting evidence regarding defendant's performance on the other field sobriety tests, we conclude a reasonable possibility exists that, had the HGN test results not been admitted, a different result would have been reached at trial.
B. Jury Instructions
Defendant also contends that trial court erred in denying his request for the following jury instruction concerning the results of the Intoximeter:
A chemical analysis of defendant's breath obtained from an EC/IR–II, which shows an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath, is deemed sufficient to prove defendant's alcohol concentration. However, such chemical analysis does not compel you to so find beyond a reasonable doubt. You are still at liberty to consider the credibility and/or to give such chemical analysis when considering whether the defendant's guilt has been proven beyond a reasonable doubt.
According to defendant, the requested instruction was necessary to inform the jury that the Intoximeter results were sufficient to support a finding of impaired driving but did not compel such a finding beyond a reasonable doubt. By charging the jury using Pattern Jury Instruction 270. 20A, defendant claims the trial court impressed upon the jury that it could not consider evidence which showed that defendant was not impaired.
“When a defendant requests a special jury instruction, ‘the trial court is not required to give [the] requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.’ “ State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration in original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976)), writ of supersedeas denied, disc. review denied, 367 N.C. 508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant “must show that the requested instructions were not given in substance and that substantial evidence supported the omitted instructions.” State v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C.App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff'd per curiam, 327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the burden of showing that the jury was misled or misinformed by the instructions given.” Beck, 233 N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169 N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant acknowledges in his brief, we have previously rejected his argument concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded that
the trial court's use of the pattern jury instruction [270. 20A] informed the jury that in order to return a verdict of guilty, it must be convinced beyond a reasonable doubt that Defendant's alcohol concentration was .08 or more. This instruction informed the jury, in substance, that it was not compelled to return a guilty verdict based simply on the chemical analysis results showing a .10 alcohol concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The trial court also “informed the jury that it possessed the authority to determine the weight of any evidence offered to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83 (citations omitted). Despite defendant's attempt to distinguish Beck from the case sub judice, we are unable to do so. Accordingly, we reject defendant's second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”).
III. Conclusion
Although the trial court's jury instructions were proper, we conclude that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results and the issue of defendant's impairment related thereto, without requiring him to be qualified as an expert under Rule 702(a). Based on the remaining evidence presented at trial, we further conclude a reasonable possibility exists that, had the error not occurred, the jury would have reached a different result. Defendant is entitled to a new trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.

- See more at: http://caselaw.findlaw.com/nc-court-of-appeals/1732340.html#sthash.VkhJN9V7.dpuf

Court of Appeals of North Carolina.

STATE of North Carolina v. William Edward GODWIN, III, Defendant.

No. COA15–766.

    Decided: April 19, 2016

Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant. Appeal by defendant from judgment entered 15 November 2013 by Judge Gary M. Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January 2016. Mecklenburg County, No. 11 CRS 202887.
William Edward Godwin, III (defendant), appeals his conviction for driving while impaired following a jury trial in superior court. The question for decision is whether Rule 702(a1) of the North Carolina Rules of Evidence requires a witness to be qualified as an expert before he may testify to the issue of impairment related to HGN test results. We hold that it does.
I. Background
The State's evidence at trial tended to show the following: On 18 January 2011, at approximately 10:14 p.m., Daniel Kennerly, an officer with the Charlotte Mecklenburg Police Department, observed defendant driving fourteen miles per hour over the posted speed limit and executed a traffic stop. When he approached the vehicle, Officer Kennerly noticed that defendant's eyes were red and glassy, and he detected a strong odor of alcohol coming from defendant's breath. Officer Kennerly asked defendant where he was coming from and how much alcohol, if any, he had consumed that evening. In response, defendant stated that he had just left a restaurant where he had consumed three beers. Officer Kennerly then asked defendant to step out of his vehicle and began an investigation for impaired driving.
As part of his investigation, Officer Kennerly administered three field sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn, and the one-leg stand. He observed four out of six possible indicators of impairment during the HGN test, six out of eight possible indicators during the walk-and-turn, and two out of four possible indicators during the one-leg stand. At that time, Officer Kennerly placed defendant under arrest for driving while impaired and transported him to the Mecklenburg County Sheriff's Office's Intoximeter site to perform a EC/IR II breath test. The results of the Intoximeter showed that defendant's blood-alcohol concentration was .08.
On 20 December 2011, defendant was convicted in Mecklenburg County District Court of driving while impaired. He appealed to superior court, and the matter came to trial at the 12 November 2013 Criminal Session of the Superior Court for Mecklenburg County. At trial, defendant objected to Officer Kennerly's HGN testimony, arguing that the officer had to be qualified as an expert under Rule 702 of the North Carolina Rules of Evidence before such testimony could be admitted. Over defendant's objections, the trial court allowed Officer Kennerly to testify, based on his training and experience, as to his administration of the HGN test, the indicators of impairment, and his opinion regarding defendant's impairment based on the indicators which he observed. At the conclusion of the trial, the jury found defendant guilty of driving while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant first argues that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results. Specifically, defendant maintains that Rule 702(a1) requires a party offering testimony about the results of an HGN test to do so through a properly qualified witness who has been accepted as an expert by the trial court. Defendant contends, therefore, that in overruling his objection and allowing Officer Kennerly to offer such testimony as a lay witness, the trial court acted under a misapprehension of the law.
“Issues of statutory construction are questions of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264, 664 S.E.2d 569, 575 (2008)). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North Carolina Supreme Court first addressed the admissibility of HGN evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On discretionary review, the Court agreed with our conclusion that “the HGN test does not measure behavior a lay person would commonly associate with intoxication, but rather represents specialized knowledge that must be presented to the jury by a qualified expert.” Id. at 581, 504 S.E.2d at 295 (emphasis added); see also State v. Helms, 127 N.C.App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a scientific principle that the extent and manner in which one's eye quivers can be a reliable measure of the amount of alcohol one has consumed.” (citation omitted)), rev'd on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant that under the prior version of Rule 702, the State had to show, inter alia, that the methodology underlying the test was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly applied to the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence was admitted, and no inquiry conducted, as to the reliability of HGN testing, the Court held that it was error to admit an officer's testimony regarding the results of the HGN test administered on the defendant. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms was decided, the North Carolina General Assembly passed House Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6. Rule 702(a1) provides, in pertinent part, as follows:
(a1) A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1, Rule 702(a1) (2015). The first sentence of this subsection contemplates that testimonial evidence concerning HGN test results be offered by an expert witness. Although the prior version of Rule 702(a) was still in effect when subsection (a1) was added, the bases on which a witness may be qualified as an expert are the same under the current version. Rule 702(a), as amended, provides as follows:
(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C. Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C. Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.”).
In accordance with Helms, therefore, Rule 702(a1) requires that before a witness can testify as to the results of an HGN test, he must be “qualified as an expert by knowledge, skill, experience, training, or education.” See Helms, 348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so qualified and “proper foundation” is established, the witness may “give expert testimony ” as to the HGN test results, subject to the additional limitations in subsection (a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1) (emphasis added). Namely, the expert witness may testify “solely on the issue of impairment and not on the issue of specific alcohol concentration,” and the HGN test must have been “administered by a person who has successfully completed training in HGN.” Id. (emphasis added).
In the case sub judice, although Officer Kennerly completed a training course in DWI detection and standardized field sobriety tests, there was never a formal offer by the State to tender him as an expert witness. In fact, after conducting its own voir dire, the trial court rejected defendant's contention that Officer Kennerly must be qualified as an expert before testifying as to the results of the HGN test:
THE COURT: I will allow this officer to testify that he administered the HGN test, the walk-and-turn test, and the one-legged test. He will be allowed to testify as to the indicators of impairment he observed of this defendant in giving these tests. Anything else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not going to make that requirement.
Thereafter, over defendant's objection, Officer Kennerly testified that he “observed four out of six” possible clues during the HGN test, which “indicates a probability that the person could be impaired as a result of the consumption of alcohol.” Furthermore, based on his interactions with defendant and defendant's performance on all of the field sobriety tests, including the HGN test, Officer Kennerly opined that defendant's “mental and physical faculties were appreciably impaired as a result of the consumption of some impairing substance, that substance in this case being alcohol.” Our application of Rule 702(a1) to the facts of this case leads us to conclude that the trial court erred in allowing a witness who had not been qualified as an expert under Rule 702(a) to testify as to the issue of impairment based on the HGN test results.
The State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674 S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010), nevertheless argues for an interpretation of Rule 702(a1) that would not require an arresting officer who administered the HGN test to be qualified as an expert before testifying as to the HGN test results and the issue of impairment related thereto. Unlike this case, however, the arresting officer in Smart was qualified as an expert under Rule 702 before she testified as to her administration of the test. Id . at 755–56, 674 S.E.2d at 685–86. And although the defendant's argument, as it was initially phrased, attacked the officer's qualifications as an expert witness, the defendant's actual challenge went toward the testimony itself: “[The defendant] in fact specifies that his argument pertains to whether the officer's ‘method of proof’—that is, the nystagmus testing—is sufficiently reliable as a basis for expert testimony.” Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at 640 (“Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness ․ is qualified as an expert to apply this method to the specific facts of the case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this argument, we explained that, at least under the prior version of Rule 702(a), before admitting expert opinion testimony the trial court had to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639); see also N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions concerning the qualification of a person to be a witness ․ or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).”). At that time, we interpreted subsection (a1) “as obviating the need for the State to prove that the HGN testing method is sufficiently reliable.” Id. Our holding in Smart went no further, and it has no application here. While some may even question whether Smart survives the amendment to Rule 702(a), that issue is not the one presently before us.
Having concluded that the trial court erred in admitting Officer Kennerly's testimony, we must now determine whether the error was prejudicial so as to warrant a new trial. “In order to establish prejudicial error in the erroneous admission of the HGN evidence, defendant must show only that had the error in question not been committed, a reasonable possibility exists that a different result would have been reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen.Stat. § 15A–1443(a) (1997)).
The remaining evidence presented at trial shows the following: (1) Officer Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated the stop, defendant activated his turn signal, pulled onto the next side street, and came to a stop at roadside in a safe location; (3) defendant was not weaving, and he made no sharp or sudden turns to avoid the traffic stop; (4) two experts testified that they would have expected to see some indicators of impairment which defendant did not exhibit while operating the vehicle; (5) defendant had no problem retrieving his license or registration; (6) defendant did not tilt his head away from Officer Kennerly or otherwise try to avoid contact with him; (7) Officer Kennerly noticed that defendant's eyes were red and glassy, and he smelled a “strong odor of an alcoholic beverage coming from his breath”; (8) one expert testified that “the odor of alcohol is simply an indicator of presence of alcohol” and that there is “no basis for an opinion that correlates the strength of an odor to ․ blood alcohol concentration in the body”; (9) defendant told Officer Kennerly that he had just left a restaurant where he had consumed three beers that evening; (10) when asked to step out of the vehicle, defendant removed his seatbelt without difficulty, he did not use the doorframe or the vehicle for support while exiting, and he did not stagger or sway once he was out of the vehicle; (11) Officer Kennerly observed six out of eight possible clues during the walk-and-turn test, and two out of four possible clues on the one-leg stand test; (12) defendant repeatedly told Officer Kennerly that he had to use the restroom, and two experts agreed that defendant's need to urinate could have adversely affected his performance on the tests; (13) one of the experts, who reviewed the video from Officer Kennerly's dash camera, testified that Officer Kennerly should not have counted three of the six clues he observed during the walk-and-turn test; that the steep grade of the road where defendant performed the one-leg stand could have adversely affected defendant's performance on the test; and that the presence of traffic on the narrow road where the tests were administered, along with the cold weather that evening, could also have affected defendant's performance on the tests; (14) Helen Godwin, defendant's mother, testified that when she saw defendant at the police station, his eyes were not red or glassy, he did not smell of alcohol, his speech was normal, and she did not believe he was impaired; (15) after being placed under arrest and transported to the Intoximeter site, defendant registered a .08 on the Intoximeter. Based on the foregoing, particularly the conflicting evidence regarding defendant's performance on the other field sobriety tests, we conclude a reasonable possibility exists that, had the HGN test results not been admitted, a different result would have been reached at trial.
B. Jury Instructions
Defendant also contends that trial court erred in denying his request for the following jury instruction concerning the results of the Intoximeter:
A chemical analysis of defendant's breath obtained from an EC/IR–II, which shows an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath, is deemed sufficient to prove defendant's alcohol concentration. However, such chemical analysis does not compel you to so find beyond a reasonable doubt. You are still at liberty to consider the credibility and/or to give such chemical analysis when considering whether the defendant's guilt has been proven beyond a reasonable doubt.
According to defendant, the requested instruction was necessary to inform the jury that the Intoximeter results were sufficient to support a finding of impaired driving but did not compel such a finding beyond a reasonable doubt. By charging the jury using Pattern Jury Instruction 270. 20A, defendant claims the trial court impressed upon the jury that it could not consider evidence which showed that defendant was not impaired.
“When a defendant requests a special jury instruction, ‘the trial court is not required to give [the] requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.’ “ State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration in original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976)), writ of supersedeas denied, disc. review denied, 367 N.C. 508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant “must show that the requested instructions were not given in substance and that substantial evidence supported the omitted instructions.” State v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C.App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff'd per curiam, 327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the burden of showing that the jury was misled or misinformed by the instructions given.” Beck, 233 N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169 N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant acknowledges in his brief, we have previously rejected his argument concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded that
the trial court's use of the pattern jury instruction [270. 20A] informed the jury that in order to return a verdict of guilty, it must be convinced beyond a reasonable doubt that Defendant's alcohol concentration was .08 or more. This instruction informed the jury, in substance, that it was not compelled to return a guilty verdict based simply on the chemical analysis results showing a .10 alcohol concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The trial court also “informed the jury that it possessed the authority to determine the weight of any evidence offered to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83 (citations omitted). Despite defendant's attempt to distinguish Beck from the case sub judice, we are unable to do so. Accordingly, we reject defendant's second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”).
III. Conclusion
Although the trial court's jury instructions were proper, we conclude that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results and the issue of defendant's impairment related thereto, without requiring him to be qualified as an expert under Rule 702(a). Based on the remaining evidence presented at trial, we further conclude a reasonable possibility exists that, had the error not occurred, the jury would have reached a different result. Defendant is entitled to a new trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.
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Court of Appeals of North Carolina.

STATE of North Carolina v. William Edward GODWIN, III, Defendant.

No. COA15–766.

    Decided: April 19, 2016

Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant. Appeal by defendant from judgment entered 15 November 2013 by Judge Gary M. Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January 2016. Mecklenburg County, No. 11 CRS 202887.
William Edward Godwin, III (defendant), appeals his conviction for driving while impaired following a jury trial in superior court. The question for decision is whether Rule 702(a1) of the North Carolina Rules of Evidence requires a witness to be qualified as an expert before he may testify to the issue of impairment related to HGN test results. We hold that it does.
I. Background
The State's evidence at trial tended to show the following: On 18 January 2011, at approximately 10:14 p.m., Daniel Kennerly, an officer with the Charlotte Mecklenburg Police Department, observed defendant driving fourteen miles per hour over the posted speed limit and executed a traffic stop. When he approached the vehicle, Officer Kennerly noticed that defendant's eyes were red and glassy, and he detected a strong odor of alcohol coming from defendant's breath. Officer Kennerly asked defendant where he was coming from and how much alcohol, if any, he had consumed that evening. In response, defendant stated that he had just left a restaurant where he had consumed three beers. Officer Kennerly then asked defendant to step out of his vehicle and began an investigation for impaired driving.
As part of his investigation, Officer Kennerly administered three field sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn, and the one-leg stand. He observed four out of six possible indicators of impairment during the HGN test, six out of eight possible indicators during the walk-and-turn, and two out of four possible indicators during the one-leg stand. At that time, Officer Kennerly placed defendant under arrest for driving while impaired and transported him to the Mecklenburg County Sheriff's Office's Intoximeter site to perform a EC/IR II breath test. The results of the Intoximeter showed that defendant's blood-alcohol concentration was .08.
On 20 December 2011, defendant was convicted in Mecklenburg County District Court of driving while impaired. He appealed to superior court, and the matter came to trial at the 12 November 2013 Criminal Session of the Superior Court for Mecklenburg County. At trial, defendant objected to Officer Kennerly's HGN testimony, arguing that the officer had to be qualified as an expert under Rule 702 of the North Carolina Rules of Evidence before such testimony could be admitted. Over defendant's objections, the trial court allowed Officer Kennerly to testify, based on his training and experience, as to his administration of the HGN test, the indicators of impairment, and his opinion regarding defendant's impairment based on the indicators which he observed. At the conclusion of the trial, the jury found defendant guilty of driving while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant first argues that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results. Specifically, defendant maintains that Rule 702(a1) requires a party offering testimony about the results of an HGN test to do so through a properly qualified witness who has been accepted as an expert by the trial court. Defendant contends, therefore, that in overruling his objection and allowing Officer Kennerly to offer such testimony as a lay witness, the trial court acted under a misapprehension of the law.
“Issues of statutory construction are questions of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264, 664 S.E.2d 569, 575 (2008)). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North Carolina Supreme Court first addressed the admissibility of HGN evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On discretionary review, the Court agreed with our conclusion that “the HGN test does not measure behavior a lay person would commonly associate with intoxication, but rather represents specialized knowledge that must be presented to the jury by a qualified expert.” Id. at 581, 504 S.E.2d at 295 (emphasis added); see also State v. Helms, 127 N.C.App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a scientific principle that the extent and manner in which one's eye quivers can be a reliable measure of the amount of alcohol one has consumed.” (citation omitted)), rev'd on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant that under the prior version of Rule 702, the State had to show, inter alia, that the methodology underlying the test was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly applied to the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence was admitted, and no inquiry conducted, as to the reliability of HGN testing, the Court held that it was error to admit an officer's testimony regarding the results of the HGN test administered on the defendant. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms was decided, the North Carolina General Assembly passed House Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6. Rule 702(a1) provides, in pertinent part, as follows:
(a1) A witness, qualified under subsection (a) of this section and with proper foundation, may give expert testimony solely on the issue of impairment and not on the issue of specific alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is administered by a person who has successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1, Rule 702(a1) (2015). The first sentence of this subsection contemplates that testimonial evidence concerning HGN test results be offered by an expert witness. Although the prior version of Rule 702(a) was still in effect when subsection (a1) was added, the bases on which a witness may be qualified as an expert are the same under the current version. Rule 702(a), as amended, provides as follows:
(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C. Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C. Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.”).
In accordance with Helms, therefore, Rule 702(a1) requires that before a witness can testify as to the results of an HGN test, he must be “qualified as an expert by knowledge, skill, experience, training, or education.” See Helms, 348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so qualified and “proper foundation” is established, the witness may “give expert testimony ” as to the HGN test results, subject to the additional limitations in subsection (a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1) (emphasis added). Namely, the expert witness may testify “solely on the issue of impairment and not on the issue of specific alcohol concentration,” and the HGN test must have been “administered by a person who has successfully completed training in HGN.” Id. (emphasis added).
In the case sub judice, although Officer Kennerly completed a training course in DWI detection and standardized field sobriety tests, there was never a formal offer by the State to tender him as an expert witness. In fact, after conducting its own voir dire, the trial court rejected defendant's contention that Officer Kennerly must be qualified as an expert before testifying as to the results of the HGN test:
THE COURT: I will allow this officer to testify that he administered the HGN test, the walk-and-turn test, and the one-legged test. He will be allowed to testify as to the indicators of impairment he observed of this defendant in giving these tests. Anything else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not going to make that requirement.
Thereafter, over defendant's objection, Officer Kennerly testified that he “observed four out of six” possible clues during the HGN test, which “indicates a probability that the person could be impaired as a result of the consumption of alcohol.” Furthermore, based on his interactions with defendant and defendant's performance on all of the field sobriety tests, including the HGN test, Officer Kennerly opined that defendant's “mental and physical faculties were appreciably impaired as a result of the consumption of some impairing substance, that substance in this case being alcohol.” Our application of Rule 702(a1) to the facts of this case leads us to conclude that the trial court erred in allowing a witness who had not been qualified as an expert under Rule 702(a) to testify as to the issue of impairment based on the HGN test results.
The State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674 S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010), nevertheless argues for an interpretation of Rule 702(a1) that would not require an arresting officer who administered the HGN test to be qualified as an expert before testifying as to the HGN test results and the issue of impairment related thereto. Unlike this case, however, the arresting officer in Smart was qualified as an expert under Rule 702 before she testified as to her administration of the test. Id . at 755–56, 674 S.E.2d at 685–86. And although the defendant's argument, as it was initially phrased, attacked the officer's qualifications as an expert witness, the defendant's actual challenge went toward the testimony itself: “[The defendant] in fact specifies that his argument pertains to whether the officer's ‘method of proof’—that is, the nystagmus testing—is sufficiently reliable as a basis for expert testimony.” Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at 640 (“Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness ․ is qualified as an expert to apply this method to the specific facts of the case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this argument, we explained that, at least under the prior version of Rule 702(a), before admitting expert opinion testimony the trial court had to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639); see also N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions concerning the qualification of a person to be a witness ․ or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).”). At that time, we interpreted subsection (a1) “as obviating the need for the State to prove that the HGN testing method is sufficiently reliable.” Id. Our holding in Smart went no further, and it has no application here. While some may even question whether Smart survives the amendment to Rule 702(a), that issue is not the one presently before us.
Having concluded that the trial court erred in admitting Officer Kennerly's testimony, we must now determine whether the error was prejudicial so as to warrant a new trial. “In order to establish prejudicial error in the erroneous admission of the HGN evidence, defendant must show only that had the error in question not been committed, a reasonable possibility exists that a different result would have been reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen.Stat. § 15A–1443(a) (1997)).
The remaining evidence presented at trial shows the following: (1) Officer Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated the stop, defendant activated his turn signal, pulled onto the next side street, and came to a stop at roadside in a safe location; (3) defendant was not weaving, and he made no sharp or sudden turns to avoid the traffic stop; (4) two experts testified that they would have expected to see some indicators of impairment which defendant did not exhibit while operating the vehicle; (5) defendant had no problem retrieving his license or registration; (6) defendant did not tilt his head away from Officer Kennerly or otherwise try to avoid contact with him; (7) Officer Kennerly noticed that defendant's eyes were red and glassy, and he smelled a “strong odor of an alcoholic beverage coming from his breath”; (8) one expert testified that “the odor of alcohol is simply an indicator of presence of alcohol” and that there is “no basis for an opinion that correlates the strength of an odor to ․ blood alcohol concentration in the body”; (9) defendant told Officer Kennerly that he had just left a restaurant where he had consumed three beers that evening; (10) when asked to step out of the vehicle, defendant removed his seatbelt without difficulty, he did not use the doorframe or the vehicle for support while exiting, and he did not stagger or sway once he was out of the vehicle; (11) Officer Kennerly observed six out of eight possible clues during the walk-and-turn test, and two out of four possible clues on the one-leg stand test; (12) defendant repeatedly told Officer Kennerly that he had to use the restroom, and two experts agreed that defendant's need to urinate could have adversely affected his performance on the tests; (13) one of the experts, who reviewed the video from Officer Kennerly's dash camera, testified that Officer Kennerly should not have counted three of the six clues he observed during the walk-and-turn test; that the steep grade of the road where defendant performed the one-leg stand could have adversely affected defendant's performance on the test; and that the presence of traffic on the narrow road where the tests were administered, along with the cold weather that evening, could also have affected defendant's performance on the tests; (14) Helen Godwin, defendant's mother, testified that when she saw defendant at the police station, his eyes were not red or glassy, he did not smell of alcohol, his speech was normal, and she did not believe he was impaired; (15) after being placed under arrest and transported to the Intoximeter site, defendant registered a .08 on the Intoximeter. Based on the foregoing, particularly the conflicting evidence regarding defendant's performance on the other field sobriety tests, we conclude a reasonable possibility exists that, had the HGN test results not been admitted, a different result would have been reached at trial.
B. Jury Instructions
Defendant also contends that trial court erred in denying his request for the following jury instruction concerning the results of the Intoximeter:
A chemical analysis of defendant's breath obtained from an EC/IR–II, which shows an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath, is deemed sufficient to prove defendant's alcohol concentration. However, such chemical analysis does not compel you to so find beyond a reasonable doubt. You are still at liberty to consider the credibility and/or to give such chemical analysis when considering whether the defendant's guilt has been proven beyond a reasonable doubt.
According to defendant, the requested instruction was necessary to inform the jury that the Intoximeter results were sufficient to support a finding of impaired driving but did not compel such a finding beyond a reasonable doubt. By charging the jury using Pattern Jury Instruction 270. 20A, defendant claims the trial court impressed upon the jury that it could not consider evidence which showed that defendant was not impaired.
“When a defendant requests a special jury instruction, ‘the trial court is not required to give [the] requested instruction in the exact language of the request. However, when the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance.’ “ State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration in original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976)), writ of supersedeas denied, disc. review denied, 367 N.C. 508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant “must show that the requested instructions were not given in substance and that substantial evidence supported the omitted instructions.” State v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C.App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff'd per curiam, 327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the burden of showing that the jury was misled or misinformed by the instructions given.” Beck, 233 N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169 N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant acknowledges in his brief, we have previously rejected his argument concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded that
the trial court's use of the pattern jury instruction [270. 20A] informed the jury that in order to return a verdict of guilty, it must be convinced beyond a reasonable doubt that Defendant's alcohol concentration was .08 or more. This instruction informed the jury, in substance, that it was not compelled to return a guilty verdict based simply on the chemical analysis results showing a .10 alcohol concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The trial court also “informed the jury that it possessed the authority to determine the weight of any evidence offered to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83 (citations omitted). Despite defendant's attempt to distinguish Beck from the case sub judice, we are unable to do so. Accordingly, we reject defendant's second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”).
III. Conclusion
Although the trial court's jury instructions were proper, we conclude that the trial court erred in admitting Officer Kennerly's testimony regarding the HGN test results and the issue of defendant's impairment related thereto, without requiring him to be qualified as an expert under Rule 702(a). Based on the remaining evidence presented at trial, we further conclude a reasonable possibility exists that, had the error not occurred, the jury would have reached a different result. Defendant is entitled to a new trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.
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