## Facts

- Darrell Samuel Dellinger rode a horse in a public Christmas parade and was observed exhibiting signs of impairment while the horse moved erratically.
- Law enforcement arrested Dellinger and transported him to the county jail.
- An evidentiary breath test administered at the jail reported an alcohol concentration of 0.18.
- The State introduced the breath-test result and testimony from the breath-test operator at trial.
- A jury convicted Dellinger of driving while impaired under N.C. Gen. Stat. § 20-138.1.
- Dellinger appealed, challenging the statute’s application to riding a horse and raising constitutional and evidentiary objections related to breath testing.

## Issues

1. Whether a ridden horse qualifies as a “vehicle” under North Carolina’s impaired driving statute.
2. Whether riding a horse constitutes “driving” within the meaning of N.C. Gen. Stat. § 20-138.1.
3. Whether administering a breath test is a “critical stage” requiring counsel’s presence under the Sixth Amendment.
4. Whether prospective statutory changes to breath-testing procedures, applied by effective date, violate equal protection.
5. Whether requiring a defendant to come forward with evidence of breath-test machine malfunction or improper maintenance unconstitutionally shifts the burden of proof.
6. Whether the breath-test operator was properly qualified to testify and administer the test.

## Decision

- The Court of Appeals affirmed the conviction.
- A horse is a “vehicle” under the statutory definition because it is a means “by which” a person may be transported on a public way and is not excluded as a human-powered device.
- Dellinger was “driving” because statutory definitions treat “driver” as the “operator,” and an operator is a person in actual control of a vehicle in motion.
- The breath test was not a critical stage; no constitutional right to counsel attached at its administration.
- Different breath-testing procedures before and after an amendment’s effective date did not violate equal protection.
- The statutory framework did not shift the State’s burden of proof; it allowed a prima facie showing from a properly administered test while permitting rebuttal by the defense.
- The operator’s certification and qualifications were sufficient; later changes did not retroactively invalidate the operator’s authority.

## Legal Principles

- Under N.C. Gen. Stat. § 20-4.01(49), “vehicle” is defined broadly to include devices “in, upon, or by which” a person may be transported on a highway, excluding only devices moved by human power; a ridden horse falls within this definition for impaired-driving enforcement.
- For impaired driving under N.C. Gen. Stat. § 20-138.1, “driving” includes being in actual control of a vehicle in motion based on the statutory linkage between “driver” and “operator.”
- Administration of a breath test is an investigative step, not a critical stage requiring counsel’s presence under the Sixth Amendment.
- Prospective application of procedural amendments by an effective date, without retroactive benefit to earlier defendants, does not alone create an equal protection violation.
- A statutory presumption of reliability for a properly administered breath test may place a burden of production on the defendant to contest malfunction or maintenance, while leaving the State with the ultimate burden to prove guilt beyond a reasonable doubt.
- Breath-test results are admissible when the test is administered by a duly certified operator following required procedures; later regulatory changes do not retroactively negate existing certifications absent legislative direction.

## Conclusion

The court upheld a DWI conviction arising from riding a horse while impaired, holding that a ridden horse is a “vehicle” and that the rider “drives” by exercising actual control while in motion; it also rejected challenges to counsel at testing, equal protection based on effective dates, alleged burden shifting, and the operator’s qualifications.


State v. Dellinger, 327 S.E.2d 609 (N.C. Ct. App. 1985)