State v. Jent

Sharp, J. Defendant’s assignments of error which comply with the rules of this Court raise only the question of nonsuit and the correctness of certain portions of the judge’s charge. In re Will of Adams, 268 N.C. 565, 151 S.E. 2d 59. The State’s evidence — with and without the result of the Breathalyzer test — was more than sufficient to take to the jury the issue of defendant’s guilt of the crime charged. The motions for nonsuit were properly overruled. Defendant assigns as error the following portion of His Honor’s 'charge: “As I have heretofore stated in other cases this week, 20-139.1 provides that where a person is charged with operating a motor vehicle under the influence and the test is given, that'it raises the following presumption: ‘If there was at that time .10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.’ ' ' "Now, that is a presumption.-It is a rebuttable presumption; that is, it may be rebutted by other evidence; it is not conclusive and, therefore, the defendant contends that if there was *655 such presumption that he has overcome it by other evidence. But the presumption created by the statute by the test is to be considered by you along with all the other evidence in passing upon the defendant’s guilt or innocence.” The foregoing constitutes the court’s entire explanation of the application of G.S. 20-139.1 to the evidence. It fails to meet the requirements of G.S. 1-180 and, in effect, places the burden upon defendant to rebut the statutory presumption arising from the results of his Breathalyzer test. This was error. In State v. Cooke, ante, 644, 155 S.E. 2d 165, decided simultaneously with this case, we have held that in G.S. 20-139.1, the General Assembly used the word ;presumption in the sense of a permissive inference or •prima facie evidence, and that the trial judge should so instruct the jury. This appeal is controlled by State v. Cooke, supra. For the error in the charge there must be a New trial.