STEPHENS, Judge.
This appeal arises from a driving while impaired ("DWI") conviction. On 28 September 2010, Defendant Tracey Nathaniel DeBruhl was charged with driving while impaired, driving with an expired registration, and failing to comply with a license restriction. After being convicted in district court, Defendant appealed to superior court. On 12 January 2012, a jury found Defendant guilty of all charges. From the judgments entered upon these convictions, Defendant appeals.
The evidence at trial tended to show the following: On the evening of 27 September 2010, Defendant visited several bars, drinking at least four beers and a shot of liquor. He left the last bar after 1:45 a.m. and drove along Tunnel Road. Just after driving through the tunnel for which that road is named, Defendant passed two police cars that had pulled over another driver. As Defendant passed the traffic stop, he saw one of the police cars pull out and follow his vehicle. Defendant was pulled over in a nearby parking lot.
Officer Michael Allen of the Asheville Police Department ("APD") testified that, while assisting another officer with a traffic stop in the early morning hours of 28 September 2010, he heard a vehicle approaching from the direction of the tunnel at a high rate of speed. Allen got into his patrol car and followed Defendant's car when it passed. After noting that Defendant's license plate had an expired registration sticker, Allen initiated a traffic stop.
Allen approached the car, asked Defendant for his driver's license and car registration, and informed Defendant that he had been stopped because of the expired registration sticker. Defendant acknowledged that he was aware the plate registration had expired. Allen testified that, during this exchange, he detected an odor of alcohol and noted that Defendant's eyes were red and glassy. Allen also observed that Defendant's driver's license showed a restriction code that prohibited him from driving with a blood alcohol level greater than 0.04. Allen asked Defendant whether he had been drinking alcohol. Defendant admitted drinking beer during the evening and agreed to roadside sobriety testing. Allen performed a horizontal gaze nystagmus test on Defendant and noted that, while Defendant's pupils were normal and he was able to follow Allen's finger, Defendant's eyes showed "jerking," a sign of possible impairment. On the walk and turn test, Defendant used his arms for balance, missed a heel-to-toe step, and executed a military-style "about-face" turn rather than the turn Allen had demonstrated for Defendant. On the one-leg stand test, Defendant used his arms for balance and also put his right leg down before being told to do so. Allen testified that the results of these tests led him to believe that Defendant was impaired.
Allen next tested Defendant using a roadside alcohol screening device. Defendant tested positive on two such tests, conducted about ten minutes apart. Allen then arrested Defendant and drove him to jail. After being processed by a magistrate, Defendant was taken to speak with Officer Robert Bingaman of the APD, a chemical analyst. After Bingaman read Defendant his rights regarding chemical analysis, Defendant signed a form stating that he understood those rights and that he had chosen not to "call an attorney and/or witness[.]" Bingaman then performed a chemical analysis of Defendant's breath sample, which showed a blood alcohol level of 0.11. What occurred next was disputed at trial. Allen testified that, upon realizing that the chemical analysis showed a blood alcohol level of 0.11, Defendant asked to call an attorney. Bingaman did not mention any request for an attorney and testified that Defendant simply refused to provide a second breath sample which Bingaman noted on Defendant's chemical analysis testing slip. Defendant testified that, after giving one breath sample, he asked twice to speak to an attorney, but never refused to give a second breath sample. The uncontradicted evidence was that Defendant never called an attorney and never provided a second breath sample for analysis. At trial, the result of the chemical analysis of the single breath sample was admitted without objection, as was Bingaman's testimony about the result.
A jury found Defendant guilty of driving while impaired, driving with expired registration, and operating a motor vehicle in violation of a limitation of his driver's license. The trial court sentenced Defendant to a 30-day active sentence and five years of supervised probation, along with other special conditions of probation. Defendant appeals.
On appeal, Defendant makes two arguments: that the trial court (1) committed plain error by admitting evidence of the chemical analysis of a single breath sample and of Defendant's alleged refusal to submit a second breath sample, and (2) erred in imposing 60 months of supervised probation. We find no error as to Defendant's trial, but remand for resentencing.
Defendant first argues that the trial court committed plain error by admitting (1) the chemical analysis of a single breath sample when sequential samples were not analyzed as required by statute, and (2) evidence of Defendant's alleged refusal to submit a second breath sample. We dismiss the first portion of Defendant's argument and overrule the second.
Defendant acknowledges that he did not object to any of the challenged evidence at trial. Thus, we review the admission of the evidence only for plain error. State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 333 (2012).
Id. (alteration and emphasis in original) (citations, quotation marks, and brackets omitted).
Defendant was charged and convicted of driving while impaired. N.C. Gen. Stat. § 20-138.1(a) (2011). Driving while impaired is an implied-consent offense. McDaniel v. Div. of Motor Vehicles, 96 N.C. App. 495, 496, 386 S.E.2d 73, 75 (1989), cert. denied, 326 N.C. 364, 389 S.E.2d 815 (1990). Our General Statutes provide:
N.C. Gen. Stat. § 20-16.2(a) (2011).
Generally, admissibility of the result of chemical analysis under section 20-16.2 requires chemical analysis of at least two sequential breath samples:
N.C. Gen. Stat. § 20-139.1(b3) (2011). However, the result of chemical analysis of a single breath sample is admissible if the person being tested refuses to give subsequent samples:
Id.
Among the rights our General Assembly has provided to persons subject to chemical analysis under section 20-16.2 is the right to call an attorney for advice. N.C. Gen. Stat. § 20-16.2(a)(6). However, "the testing may not be delayed for th[is] purpose[] longer than 30 minutes from the time [the person is] notified of these rights. [The person] must take the test at the end of 30 minutes even if [the person] ha[s] not contacted an attorney...." Id.
Here, on appeal, Defendant asserts that only 23 minutes passed between the time when Defendant was notified of his rights under section 20-16.2 and his request to call an attorney for advice. Based on this assertion, Defendant suggests that Bingaman should not have marked him as refusing to give a second breath sample, but rather should have permitted Defendant to attempt to consult an attorney. Defendant urges that he cannot have "refused" to give a second sample until 30 minutes had passed since he was informed of his rights. Thus, Defendant contends there was no "refusal" pursuant to section 20-139.1(b3), and, as a result, the single test result should not have been admitted under that section for the purpose of establishing his blood "alcohol concentration for conviction of an offense involving impaired driving." Id. In sum, on appeal, Defendant argues error in the admission of the blood alcohol test result which he contends was obtained in violation of his rights under section 20-16.2.
Defendant did not move pretrial to suppress the chemical analysis result nor did he object during trial to the admission of either the result or testimony about it. In State v. Byers, this Court considered an almost identical argument, to wit, the defendant's assertion of error in the admission of testimony about the results of a blood test which the defendant contended had not been performed in accordance with sections 20-16.2 and 20-139.1. 105 N.C. App. 377, 380, 413 S.E.2d 586, 587 (1992). We rejected as meritless the defendant's argument on the following basis:
Id. at 380-81, 413 S.E.2d at 588. The only distinction between Byers and Defendant's case is that Byers concerned chemical analysis of a blood sample, rather than a breath sample. We conclude that this distinction is without a meaningful difference. Defendant has waived his right to assert error in the admission of his breath sample results, and accordingly, we dismiss this argument.
Further, we are not persuaded by Defendant's argument that admission of testimony about his alleged refusal to give a second breath sample constituted plain error. To establish plain error, a "defendant must convince [the reviewing court] not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Here, the evidence tended to show that (1) Defendant admitted consuming at least four beers and a shot of liquor in the five hours before he was stopped by Allen, (2) Allen observed Defendant's red, glassy eyes and detected an odor of alcohol when speaking to Defendant, (3) Defendant showed several signs of possible impairment on roadside sobriety tests administered by Allen, (4) Defendant twice tested positive on a roadside alcohol screening device, and (5) the result of a post-arrest chemical analysis of Defendant's breath showed his blood alcohol level to be 0.11. In addition, we note that Defendant testified he did not intend to refuse to give a second breath sample, but merely wanted to consult an attorney first. Thus, the jury was able to consider fully Defendant's alternate explanation for the absence of a second breath sample for chemical analysis. In light of this evidence of Defendant's impairment while driving, we do not believe that, but for the testimony from Bingaman that Defendant refused to provide a second breath sample, "the jury probably would have reached a different result." Id. Accordingly, Defendant has failed to establish plain error, and we overrule this argument.
Defendant next argues that the trial court erred in imposing 60 months of supervised probation. We agree.
Section 15A-1351 provides, in pertinent part, that "[a] defendant convicted of impaired driving under [section] 20-138.1 may also be sentenced to special probation." N.C. Gen. Stat. § 15A-1351(a) (2011). "The original period of probation, including the period of imprisonment required for special probation, shall be as specified in [section] 15A-1343.2(d), but may not exceed a maximum of five years, except [under certain circumstances]." Id. In turn, "[u]nless the [trial] court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation... [f]or misdemeanants sentenced to intermediate punishment [shall be] not less than 12 nor more than 24 months[.]" N.C. Gen. Stat. § 15A-1343.2(d)(2) (2011). Where a trial court makes "no findings in support of its imposition of a term of probation of 60 months [a term greater than that provided for under section 15A-1343.2].... [the] matter must be remanded to the trial court for resentencing on the length of the term of probation." State v. Riley, 202 N.C. App. 299, 307, 688 S.E.2d 477, 482-83 (citation omitted), cert. denied, 364 N.C. 246, 699 S.E.2d 644 (2010).
Here, the trial court imposed a term of probation greater than that provided for under section 15A-1343.2, but made no finding of fact in support thereof. The judgment reveals that a box is marked next to the pre-printed phrase "supervised probation for
We remand to the trial court for resentencing on the length of the term of probation. On remand, the trial court may consider whether a term of supervised probation greater than the 24-month default under section 15A-1343.2(d)(2) is appropriate, but such a term may only be imposed if supported by findings of fact.
NO ERROR AS TO TRIAL; REMANDED FOR RESENTENCING.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).