State v. Cole , 262 N.C. App. 466 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-286
Filed: 20 November 2018
Buncombe County, No. 15 CRS 82431
STATE OF NORTH CAROLINA
v.
GREGORY GARRISON COLE
Appeal by defendant from judgment entered 31 August 2017 by Judge Alan Z.
Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 1
October 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General J. Rick
Brown, for the State.
Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant.
ELMORE, Judge.
Defendant Gregory Cole appeals a judgment entered after a jury convicted him
of driving while impaired (“DWI”). He argues the superior court erred by (1) denying
his motion to dismiss the indictment for lack of jurisdiction because the same charge
against him remained pending and valid in district court; (2) denying his motion to
suppress the results of roadside sobriety tests and a later intoxilyzer test because
those tests were administered during an unlawful detention that arose as a direct
consequence of an illegal roadside breath test and thus constituted tainted fruit of
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Opinion of the Court
that poisonous tree; (3) denying his motion to suppress the intoxilyzer results on the
additional ground that the superior court improperly concluded the administrating
officer’s request he submit a breath sample on a second intoxilyzer machine after the
first one failed to produce a valid result did not constitute a request for a “subsequent
chemical analysis” under N.C. Gen. Stat. § 20-139.1(b5) and thus did not trigger that
statute’s requirement that the officer re-advise him of his implied-consent rights
before administering the test on the second machine; and (4) enhancing his sentence
because the superior court’s finding of the existence of an aggravating factor was
based on his prior DWI conviction that was pending on appeal and thus was not
“final” so it failed to qualify as a “prior conviction” for enhanced sentencing purposes
under N.C. Gen. Stat. § 20-179(c)(1).
We hold the superior court properly (1) denied the motion to dismiss the
indictment for lack of jurisdiction because the district court charge was no longer
pending or valid; (2) denied the motion to suppress the evidence discovered after the
roadside breath test because, before that test, objective reasonable suspicion existed
that defendant may be driving while impaired, thereby justifying the officer to
prolong the initial traffic stop to investigate defendant’s potential impairment; (3)
denied the motion to suppress the intoxilyzer results because the officer’s request
that defendant submit another breath sample to administer the same chemical
analysis of the breath on a second intoxilyzer machine did not trigger N.C. Gen. Stat.
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§ 20-139.1(b5)’s re-advisement requirement; and (4) enhanced defendant’s sentence
because his prior DWI conviction, despite its status being pending on appeal,
supporting a finding of the existence of the grossly aggravating factor of a “prior
conviction” under N.C. Gen. Stat. § 20-179(c). Accordingly, we hold defendant
received a fair trial and sentence, free of error.
I. Background
The State’s evidence tended to show the following facts. Around 12:30 a.m. on
8 March 2015, Officer Jonathan Ray of the Weaverville Police Department was
conducting a business security check at Twisted Laurel, a bar and grill in
Weaverville, when he observed defendant exit through the back door of the business
and walk toward the parking lot. After completing the business check a few minutes
later, Officer Ray started working traffic control and observed a burgundy van leave
Twisted Laurel’s parking lot with no rear lamps illuminating its license plate in
violation of N.C. Gen. Stat. § 20-129(d). Officer Ray followed the van for about two
miles, observing it “weaving slightly within its lane” and “travel[ ] over onto the white
fog line on the right-hand side of the road” a few times, before activating his blue
lights and stopping the van.
When Officer Ray approached, he discovered defendant, whom he recognized
as the person he had just seen leaving Twisted Laurel, was driving the van. When
Officer Ray requested his driver’s license, defendant initially presented his debit card.
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Officer Ray returned the debit card and defendant correctly furnished his license.
Officer Ray “smell[ed] an odor of alcohol on [defendant]” and “noticed that he had red
glassy eyes as well.” When Officer Ray asked if he had been drinking, defendant
replied that he had not, but had been “working at the bar” and “may have spilled
some alcohol on himself.” Defendant “denied drinking about three times before he
finally admitted . . . that he had been drinking.”
Officer Ray asked defendant to submit to a roadside breath test using an Alco
Sensor SFST. Defendant replied “[t]he preliminary breath test on the roadside was
illegal to use in the State of North Carolina.” After Officer Ray informed defendant
that if he did not submit to the test, he would be taken into custody and transported
to the station for a breath sample, defendant agreed to submit to the roadside breath
test, which produced a positive result. Officer Ray then directed defendant out of his
vehicle and administered roadside sobriety tests. According to Officer Ray, defendant
exhibited “six out of the six clues” on the horizontal gaze nystagmus (“HGN”) test;
“[f]ive out of eight” clues on the walk-and-turn test; “two” out of “four” clues on the
one-leg stand test; and exhibited clues of impairment, including swaying back and
forth and inaccurately counting seconds, on the Romberg balance test. After a second
breath test also produced a positive result, Officer Ray arrested defendant for DWI
and transported him to the Buncombe County Detention Facility.
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About ten minutes after arriving at the jail, Officer Ray brought defendant to
a room containing three Intox ECIR-II machines, read him his implied-consent rights
and furnished him a written copy of those rights pursuant to N.C. Gen. Stat. § 20-
16.2. Defendant acknowledged his rights and agreed to submit to a chemical analysis
of his breath. After waiting the required 15-minute observation period, Officer Ray
attempted to administer the test on one of the three intoxilyzer machines. But after
defendant’s breath sample produced a “mouth alcohol” reading, Officer Ray
transferred defendant to one of the adjacent machines for another test. After waiting
another 15-minute observation period and without re-advising defendant of his
implied-consent rights, Officer Ray administered the breath test on that second
machine, which produced a valid result.
That same night, on 8 March 2015, Officer Ray cited defendant for
misdemeanor DWI and for unlawful failure to burn rear vehicle lamps. See N.C. Gen.
Stat. §§ 20-138.1, -129(d) (2017). On 6 June 2016, a grand jury issued a presentment
requesting the district attorney investigate both offenses. On 11 July 2016, a grand
jury indicted defendant of both charges.
Before trial in superior court, defendant moved to quash or dismiss the
indictment for lack of jurisdiction. He argued that because the State never dismissed
the citation in district court, that charge remained valid and pending, and thus the
superior court lacked authority to exercise its jurisdiction over the same offense and
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must dismiss the indictment. See N.C. Gen. Stat. § 15A-954(a)(6) (2017) (requiring a
court to “dismiss the charges stated in a criminal pleading if it determines that[ ] . . .
[t]he defendant has previously been charged with the same offense in another North
Carolina court of competent jurisdiction, and the criminal pleading charging the
offense is still pending and valid”). The State argued it need not have dismissed the
citation in the district court because the indictment superseded that charge and,
further, that its records indicate there was no longer any charge against defendant
pending in district court. The superior court denied the motion.
Defendant also filed three pretrial motions to suppress evidence. First, he
moved to suppress all evidence on the grounds that Officer Ray lacked reasonable
suspicion for the traffic stop. The superior court concluded in relevant part that
reasonable suspicion existed based on Officer Ray observing the van without rear
lamps illuminating the license plate in violation of N.C. Gen. Stat. § 20-129 and
denied the motion. Defendant does not challenge this ruling.
Second, defendant moved to suppress all evidence based on the illegality of the
roadside breath test. He argued Officer Ray (1) unlawfully compelled defendant to
submit to the roadside breath test and thus the subsequent field sobriety tests results
and later intoxilyzer test results constituted tainted fruit of the poisonous tree of that
illegal roadside breath test search; (2) unlawfully prolonged the traffic stop because
his “demand [for] a preliminary breath test constitute[d] a seizure beyond the scop[e]
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of the initial stop and without reasonable suspicion of criminal activity”; and (3)
improperly relied upon the numerical results of the roadside breath test in forming
probable cause to arrest defendant for DWI and, therefore, that “the State [was]
unable to meet its burden to demonstrate [Officer Ray] possessed objectively
reasonable probable cause to arrest the defendant.” The superior court concluded the
roadside breath tests were unlawfully compelled and thus suppressed the positive-
results evidence from those tests. However, it further concluded, even without that
illegally obtained evidence, Officer Ray had probable cause to arrest defendant for
DWI and thus declined to suppress any other evidence.
Third, defendant moved to suppress the intoxilyzer results on the grounds that
Officer Ray failed to re-advise him of his implied-consent rights in violation of N.C.
Gen. Stat. § 20-139.1(b5). Defendant acknowledged that Officer Ray duly advised
him of his implied-consent rights under N.C. Gen. Stat. § 20-16.2 and that he agreed
to submit to a chemical analysis of his breath prior to Officer Ray administering that
test on the first intoxilyzer machine. He argued that because the first machine failed
to produce a valid result, the administration of that test was a “nullity.” Thus,
defendant asserted, Officer Ray’s subsequent request that he provide another sample
to administer the test on a second machine was a request for a “subsequent chemical
analysis” under N.C. Gen. Stat. § 20-139.1(b5), triggering his right under that statute
to be re-advised of his implied-consent rights. Therefore, defendant continued, the
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results of the intoxilyzer test should be suppressed because Officer Ray failed to re-
advise him of his implied-consent rights before administering the breath test on the
second machine. The superior court concluded Officer Ray’s request did not trigger
N.C. Gen. Stat. § 20-139.1(b5)’s re-advisement requirement because it was merely a
request to submit to the same chemical analysis and therefore refused to suppress
the intoxilyzer results on that basis.
At trial, defendant failed to object to the introduction of the field-sobriety-tests-
results evidence or the intoxilyzer-results evidence, the superior court dismissed the
failure to burn rear lamps infraction due to insufficiency of the indictment, and the
jury found defendant guilty of DWI.
At sentencing, defendant objected to the use of a prior DWI conviction obtained
against him in superior court on 15 September 2016 to support a finding of the
existence of a grossly aggravating factor for the purpose of enhancing his sentence.
He argued that because the prior conviction was currently pending on appeal, it was
not “final” and thus did not qualify as a “prior conviction” under N.C. Gen. Stat. § 20-
179(c). The superior court concluded the prior DWI conviction, despite it being
pending on appeal, supported a finding of the existence of a grossly aggravating factor
but noted its willingness to resentence defendant if that conviction was later
reversed. Accordingly, the superior court entered a judgment finding the grossly
aggravating factor of a prior DWI conviction and sentencing defendant as a Level Two
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offender to twelve months’ incarceration, suspended for eighteen months of
supervised probation with special conditions that he surrender his driver’s license to
the Division of Motor Vehicles and serve an active term of thirty days. Defendant
appeals.
II. Issues Presented
On appeal, defendant presents four issues. First, he argues the superior court
erred by denying his motion to dismiss the indictment for lack of jurisdiction because
the same charge against him was still valid and pending in district court. Second,
that the superior court erred by denying his motion to suppress all evidence arising
from the traffic stop because it was obtained during an unlawful detention that
occurred as a direct consequence of an illegal roadside breath test and thus was
tainted fruit of that poisonous tree. Third, that the superior court erred by denying
his motion to suppress the intoxilyzer results because it improperly concluded Officer
Ray’s request he provide another breath sample on a different intoxilyzer machine
was not a request for a “subsequent chemical analysis” under N.C. Gen. Stat. § 20-
139.1(b5). And fourth, that the superior court erred by enhancing his sentence on the
grounds that his prior DWI conviction, since it was currently pending on appeal, did
not qualify as a “prior conviction” under N.C. Gen. Stat. § 20-179(c) and thus could
not be used to support a finding of the existence of a grossly aggravating factor.
III. Motion to Dismiss Indictment for Lack of Jurisdiction
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Defendant first asserts the superior court erred by denying his motion to
dismiss the DWI indictment for lack of jurisdiction. He argues that because the State
failed to dismiss the citation charging the same offense in district court, that charge
remained valid and pending in district court, and thus the superior court was
required to dismiss the indictment under N.C. Gen. Stat. § 15A-954(a)(6). We
disagree.
A. Review Standard
We review subject-matter jurisdiction challenges de novo. State v. Rogers, ___
N.C. App. ___, ___, 808 S.E.2d 156, 162 (2017) (citing Harris v. Matthews, 361 N.C.
265, 271, 643 S.E.2d 566, 570 (2007)). We also review issues of statutory
interpretation de novo. State v. Davis, 368 N.C. 794, 797, 785 S.E.2d 312, 315 (2016).
B. Discussion
N.C. Gen. Stat. § 7A-272(a) provides that “[e]xcept as provided in . . . Article
[22], the district court has exclusive, original jurisdiction for the trial of . . .
misdemeanors.” N.C. Gen. Stat. § 7A-272(a) (2017); see also State v. Felmet, 302 N.C.
173, 174, 273 S.E.2d 708, 710 (1981) (“Exclusive original jurisdiction of all
misdemeanors is in the district courts of North Carolina.” (citing N.C. Gen. Stat. §
7A-272)). Section 7A-271 of Article 22 provides in relevant part that “the superior
court has jurisdiction to try a misdemeanor[ ] . . . [w]hen the charge is initiated by
presentment[.]” N.C. Gen. Stat. § 7A-271(a)(2) (2017). “ ‘[I]nitiated’ refers to how the
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criminal process in superior court began, not to what the first criminal process of any
kind in any court was.” State v. Gunter, 111 N.C. App. 621, 625, 433 S.E.2d 191, 193
(1993) (interpreting these statutes and rejecting the defendant’s argument that the
superior court lacked jurisdiction over a charge initiated by presentment because the
district court first acquired jurisdiction over the same charge by citation).
Here, the 8 March 2015 misdemeanor DWI citation granted the district court
authority to exercise its original jurisdiction over the charge. See N.C. Gen. Stat. §
7A-272(a). However, after the 6 June 2016 presentment and later indictment, the
superior court had authority to exercise its jurisdiction over the charge. See N.C.
Gen. Stat. § 7A-271(a)(2); see also Gunter, 111 N.C. App. at 625, 433 S.E.2d at 193–
94 (holding that although a citation invoked the district court’s jurisdiction, a later
presentment and indictment charging the same offense vested the superior court with
jurisdiction). Because the charge in superior court was initiated by presentment, the
superior court acquired jurisdiction over the offense when the indictment issued, and
it thus properly denied the motion to dismiss the indictment for lack of jurisdiction.
Nonetheless, defendant argues that because the State never dismissed the
citation in district court, that charge remained pending and active, and thus the
superior court was required to dismiss the indictment. See N.C. Gen. Stat. § 15A-
954(a)(6) (requiring a superior court to “dismiss the charges stated in a criminal
pleading if it determines that[ ] . . . the defendant has previously been charged with
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the same offense in another North Carolina court of competent jurisdiction, and the
criminal pleading charging the offense is still pending and valid.” (emphasis added)).
We disagree.
Here, in response to defendant’s motion to dismiss the indictment in superior
court, the State replied as follows:
[STATE]: . . . [T]he matter that was left in District Court is
simply superceded by this indictment. A simple search of
our coding and our records indicates that the only pending
matters in Buncombe County against [defendant] are the
Superior Court matters. The District Court case -- the
matter that originated in District Court is simply no longer
pending. This particular indictment super[s]eded that. . . .
As a result of the fact that there’s still no pending matter
in District Court . . . this sort of eliminates any idea of a
competing claim, that the State is attempting to find him
guilty or prosecute him in two separate courtrooms. The
matter in District Court just simply isn’t there any more.
It’s here now based on that indictment.
As reflected, although the State never filed a formal dismissal of the citation
in district court, it made clear that it had abandoned its prosecution in district court
to the exclusion of its superior court prosecution, which effectively served as the
functional equivalent of a dismissal of the district court charge, rendering it no longer
valid and pending. See State v. Cole, No. 17-732, slip op. at 5–9 (N.C. App. Aug. 21,
2018) (unpublished) (rejecting this same argument, reasoning in relevant part that it
was “evident from the transcript that defendant was only prosecuted through the
Superior Court action and that the District Court action was effectively dismissed—
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even if no formal dismissal occurred”). Further, as a result of the State’s announced
election to only prosecute the charge in superior court, once jeopardy attached to the
indictment, the State would be barred under double jeopardy principles from later
prosecuting that charge in district court. Cf. State v. Courtney, ___ N.C. App. ___,
____, 817 S.E.2d 412, 420 (explaining the binding effect of the “State’s election” rule
in the context of a district attorney’s announced election to dismiss and not to exercise
the State’s right to retry a hung charge after jeopardy had already attached to the
indictment), disc. rev. allowed, ___ N.C. ___, 818 S.E.2d 109 (2018). Accordingly, we
overrule this argument.
Defendant also relies on State v. Karbas, 28 N.C. App. 372, 221 S.E.2d 98
(1976), to support his argument that the State’s failure to dismiss the citation in
district court precluded the superior court from exercising its jurisdiction over the
same offense. In Karbas, we stated that “[w]here two courts have concurrent
jurisdiction of certain offenses, the court first exercising jurisdiction in a particular
prosecution obtains jurisdiction to the exclusion of the other. But when it enters a
nolle prosequi it loses jurisdiction and the other court may proceed.” Id. at 374, 221
S.E.2d at 100 (citation omitted). Defendant’s reliance on Karbas is misguided.
To the extent that the district and superior courts here shared concurrent
jurisdiction over the misdemeanor DWI charge, that concurrent jurisdiction did not
exist until the superior court indictment issued on 11 July 2016. Defendant points to
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no evidence suggesting that, after that time, the district court exercised jurisdiction
over the offense. Indeed, in his 8 September 2016 motion to dismiss the indictment
for lack of jurisdiction, defendant stated “[t]he citation issued in this mat[t]er remains
active, although the case is not currently calendared in district court.” (Emphasis
added.) As there is no record evidence suggesting the district court exercised its
jurisdiction over the offense after the existence of concurrent jurisdiction with the
superior court, Karbas’s language that the first court exercising jurisdiction over a
shared offense is exclusive of the other court absent a dismissal terminating the first
court’s jurisdiction provides no support here. Accordingly, we overrule this argument.
In sum, because the charge was initiated by presentment, the superior court
acquired jurisdiction over the offense after the indictment issued. Despite the State’s
failure to dismiss the citation in district court, it made clear it had abandoned its
prosecution in district court, which served as the functional equivalent of a dismissal,
rendering it no longer valid and pending, and once jeopardy attached to the
indictment, the State would be precluded from later prosecuting the charge in district
court under double jeopardy principles. Further, no evidence suggests the district
court exercised its jurisdiction over the offense once concurrent jurisdiction with the
superior court existed. Therefore, we affirm the superior court’s denial of defendant’s
motion to dismiss the indictment for lack of jurisdiction.
IV. Motions to Suppress Evidence
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Defendant next argues the superior court erred by denying his motions to
suppress the evidence discovered as a result of the traffic stop. First, he argues the
results of the roadside sobriety tests and later intoxilyzer test should have been
suppressed as tainted fruit of the poisonous tree of the illegal search and seizure
arising from the unlawfully compelled roadside breath test. Second, he argues the
intoxilyzer results should have been suppressed on the additional basis that the test
was administered in violation of his implied-consent rights under N.C. Gen. Stat. §§
20-16.2 and 20-139.1(b5). We disagree.
A. Preservation
Defendant acknowledges that, although he filed pretrial motions to suppress
this evidence on these grounds, he failed to object to the admission of that evidence
at trial. Therefore, he argues that the superior court’s admission of this evidence
constituted plain error. N.C. R. App. P. 10(a)(4). Accordingly, we review these issues
only for plain error. See, e.g., State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 632
(2010) (“[T]o the extent defendant failed to preserve issues relating to the motion to
suppress, we review for plain error.”).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty.
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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,
quotation marks, and brackets omitted). “The first step under plain error review is[ ]
. . . to determine whether any error occurred at all.” State v. Lenoir, ___ N.C. App.
___, ___, 816 S.E.2d 880, 883 (2018) (quoting State v. Oxendine, 246 N.C. App. 502,
510, 783 S.E.2d 286, 292, disc. rev. denied, ___ N.C. ___, 787 S.E.2d 24 (2016)).
B. Review Standard
Our review of a suppression ruling is “strictly limited to determining whether
the trial judge’s underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether those factual
findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306
N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). Legal conclusions “are
fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631
(2000).
C. Tainted Fruit
Defendant asserts the results of the roadside sobriety tests and intoxilyzer test
should have been suppressed as tainted fruit of the poisonous tree of the illegal search
and seizure caused by the unlawfully compelled roadside breath test. We disagree.
Initially, we note that although defendant in his written suppression motion
and at the suppression hearing argued that, inter alia, all evidence discovered after
the illegal roadside breath test should have been suppressed as tainted fruit of that
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poisonous tree, the superior court here did not directly address whether that evidence
may have been acquired as a direct consequence of the illegal breath test, or whether
Officer Ray was justified in prolonging the initial traffic stop to investigate
defendant’s potential impairment. Rather, the superior court concluded that
reasonable suspicion existed to justify the initial traffic stop based primarily on
defendant’s license plate not being illuminated in violation of N.C. Gen. Stat. § 20-
129 and that, notwithstanding the results of the illegal roadside breath test, the facts
known to Officer Ray, including the later acquired results of the roadside sobriety
tests, established probable cause to arrest defendant for DWI. Nonetheless, “[t]he
question for review is whether the ruling of the trial court was correct and not
whether the reason given . . . is sound or tenable. The crucial inquiry for this Court
is admissibility and whether the ultimate ruling was supported by the evidence.”
State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 486 (2001) (quoting State v. Austin, 320
N.C. 276, 290, 357 S.E.2d 641, 650 (1987)).
“The ‘fruit of the poisonous tree doctrine,’ a specific application of the
exclusionary rule, provides that ‘[w]hen evidence is obtained as the result of illegal
police conduct, not only should that evidence be suppressed, but all evidence that is
the “fruit” of that unlawful conduct should be suppressed.’ ” State v. McKinney, 361
N.C. 53, 58, 637 S.E.2d 868, 872 (2006) (quoting State v. Pope, 333 N.C. 106, 113–14,
423 S.E.2d 740, 744 (1992)). But “[o]nly evidence discovered as a result of
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unconstitutional conduct constitutes ‘fruit of the poisonous tree.’ ” McKinney, 361
N.C. at 58, 637 S.E.2d at 872 (emphasis added) (citing Murray v. United States, 487
U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)). “Once the original purpose
of the stop has been addressed, in order to justify further delay, there must be
grounds which provide the detaining officer with additional reasonable and
articulable suspicion . . . .” State v. Jackson, 199 N.C. App. 236, 241–42, 681 S.E.2d
492, 496 (2009) (citation omitted). It follows that if facts independent of those
acquired from unlawful police conduct established legal justification for a seizure,
evidence discovered during that lawful detention would not be tainted as a direct
consequence of unconstitutional conduct. Cf. McKinney, 361 N.C. at 59, 637 S.E.2d
at 873 (applying this principle in the context of assessing tainted evidence in a search
warrant affidavit); see also id. at 62, 637 S.E.2d at 874 (“[T]he admissibility of the
evidence defendant sought to suppress turns on whether the untainted evidence in
the supporting affidavit established probable cause to search his residence.”).
“To determine whether reasonable suspicion exists, courts must look at ‘the
totality of the circumstances’ as ‘viewed from the standpoint of an objectively
reasonable police officer.’ ” State v. Johnson, 370 N.C. 32, 34–35, 803 S.E.2d 137, 139
(2017) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed.
2d 621(1981), and then Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,
134 L. Ed. 2d 911 (1996)). As defendant has not challenged the evidentiary sufficiency
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of the superior court’s findings, they are binding on appeal. State v. Campbell, 359
N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (citations omitted).
Here, the superior court rendered the following unchallenged findings to
support its conclusion that Officer Ray had reasonable suspicion to justify the initial
traffic stop: “[(1)] Defendant was coming out of a bar [(2)] after midnight and [(3)] . .
. weave[d] within his lane. He did not cross over the fog line but did several times . .
. swerve onto the fog line[.]” Additionally, the superior court rendered the following
unchallenged findings to support its conclusion that, notwithstanding the roadside
breath test results, Officer Ray had probable cause to arrest defendant for DWI:
[(4)] the driving of the Defendant, [(5)] the strong odor of
alcohol, [(6)] the fact that the Defendant presented his
debit card rather than his [driver’s license], . . . [(7)]
[defendant] did admit to drinking alcohol, and
[defendant’s] performance on [(8)] the walk and turn test,
[(9)] the HGN test, and [(10)] the Romberg balance test.
We conclude the superior court’s findings that Officer Ray observed defendant
(1) exit a bar (2) after midnight (3) and swerve several times within his driving lane,
combined with its findings that after the initial traffic stop, the legality of which
defendant does not challenge on appeal, (4) Officer Ray smelled a “strong odor of
alcohol,” (5) defendant present his debit card when asked for his driver’s license, and
(6) defendant initially denied but later admitted to drinking alcohol, were sufficient
to establish reasonable suspicion to justify prolonging the initial traffic stop to
investigate defendant’s potential impairment, including administering the roadside
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sobriety tests. Those findings in conjunction with the findings on defendant’s
performance on the roadside sobriety tests in turn supported a conclusion that Officer
Ray had probable cause to arrest defendant for DWI, which justified the later
intoxilyzer test. Therefore, the superior court properly refused to suppress the results
of the roadside sobriety tests and the intoxilyzer test. Accordingly, we hold the
superior court did not commit plain error by admitting this evidence at trial.
Defendant also argues that Officer Ray’s testimony that “[i]f [defendant] tested
low enough, [he] would [have] give[n defendant] a ride home” and “for the sake of the
.08 standard, [he] was going to give [defendant] a ride home if he fell below that[,]”
establishes that Officer Ray “lacked sufficient information to believe that . . .
defendant was appreciably impaired at the point where the alco-sensor test was
administered.” This argument fails because Officer Ray’s
subjective opinion is not material. Nor are the courts
bound by an officer’s mistaken legal conclusion as to the
existence or non-existence of probable cause or reasonable
grounds for his actions. The search or seizure is valid when
the objective facts known to the officer meet the standard
required.
Bone, 354 N.C. at 10, 550 S.E.2d at 488 (emphasis omitted) (quoting State v. Peck,
305 N.C. 734, 741, 291 S.E.2d 637, 641–42 (1982); other citation omitted); see also id.
(holding an officer’s suppression hearing testimony that he did not believe he had
probable cause to arrest was irrelevant in determining whether, objectively, the facts
known to that officer created probable cause to justify a search-incident-to-arrest
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Opinion of the Court
seizure of evidence). Having concluded above that the objective facts known to Officer
Ray before the administration of the roadside breath test established reasonable
suspicion to justify prolonging the initial traffic stop to investigate defendant’s
potential impairment, we overrule this argument.
D. Statutory Implied-Consent Rights
Defendant next asserts the superior court erred by denying his motion to
suppress the intoxilyzer results because it improperly concluded that Officer Ray was
not required under N.C. Gen. Stat. § 20-139.1(b5) to re-advise him of his implied-
consent rights before administering the breath test on a second machine. Defendant
does not dispute that Officer Ray duly advised him of his implied-consent rights
before he agreed to submit to a chemical analysis of his breath; rather, he argues that
because the test administered on the first intoxilyzer machine failed to produce a
valid result, it was a “nullity,” and thus Officer Ray’s subsequent request that
defendant provide another sample to administer the test on a different intoxilyzer
machine constituted a request for a “subsequent chemical analysis” under N.C. Gen.
Stat. § 20-139.1(b5). Therefore, defendant argues, Officer Ray violated his right
under that statute to be re-advised of his implied-consent rights before administering
the test on the second machine. We disagree.
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Opinion of the Court
We review the superior court’s legal conclusions de novo. Hughes, 353 N.C. at
208, 539 S.E.2d at 631. We also review issues of statutory interpretation de novo.
Davis, 368 N.C. at 797, 785 S.E.2d at 315.
An officer must advise a person charged with DWI of his or her implied-consent
rights before requesting that person to submit to a chemical analysis of the breath.
N.C. Gen. Stat. § 20-16.2(a) (2017). An officer may then request that person “submit
to a chemical analysis of [his or her] blood or other bodily fluid or substance in
addition to or in lieu of a chemical analysis of the breath” and, “[i]f a subsequent
chemical analysis is requested pursuant to this subsection, the person shall again be
advised of the implied consent rights in accordance with G.S. 20-16.2(a).” N.C. Gen.
Stat. § 20-139.1(b5) (2017) (emphasis added).
The plain and unambiguous language of N.C. Gen. Stat. § 20-139.1(b5)
provides that the re-advisement right triggers only when an officer requests a person
to submit to a chemical analysis of “the person’s blood or other bodily fluid or
substance in addition to or in lieu of a chemical analysis of the breath[.]” Id.
(emphasis added). Officer Ray’s request that defendant provide another sample for
the same chemical analysis of the breath on a second intoxilyzer machine was not one
for a “subsequent chemical analysis” under the statute. Accordingly, N.C. Gen. Stat.
§ 20-139.1(b5)’s re-advisement requirement never triggered, and the superior court
properly refused to suppress the intoxilyzer results on this basis.
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Opinion of the Court
Nonetheless, defendant relies on State v. Williams, 234 N.C. App 445, 450, 759
S.E.2d 350, 353 (2014), to support his position. He argues that “Williams stands for
the unqualified proposition that when a subsequent test is requested, the defendant
must be re-advised of the implied consent rights.” We disagree. In Williams, we held
that when a person refuses to submit to a breath test, an officer must re-advise that
person of his implied-consent rights before requesting he or she submit to a blood test
instead of a breath test pursuant to N.C. Gen. Stat. § 20-139.1(b5). Id. at 452, 759
S.E.2d at 354. Defendant’s reliance on Williams is misguided because the officer
there requested the defendant to submit to a different chemical analysis—a blood
test—in lieu of the breath test. Here, Officer Ray only requested that defendant
submit to one chemical analysis—the breath test—which was not in addition to or in
lieu of the original breath test. Accordingly, we overrule this argument.
V. “Prior Conviction” for Enhanced Sentence
Last, defendant asserts the superior court erred by sentencing him as a Level
Two offender after finding the existence of a grossly aggravating factor based on upon
his prior DWI conviction. Defendant was convicted in superior court of DWI on 15
September 2016. He appealed that conviction on 26 September 2016, which remained
pending before this Court at the time of the instant 31 August 2017 sentencing
hearing. Before the superior court and now on appeal, defendant argues his prior
DWI conviction could not be used to enhance his sentence because the prior
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Opinion of the Court
conviction, since it was pending on appeal, was not “final” and therefore could not be
used as a “prior conviction” to find the existence of a grossly aggravating factor under
N.C. Gen. Stat. § 20-179(c). We disagree.
We review issues of statutory interpretation de novo. Davis, 368 N.C. at 797,
785 S.E.2d at 315. “When the language of a statute is clear and unambiguous, there
is no room for judicial construction and the courts must give the statute its plain and
definite meaning, and are without power to interpolate, or superimpose, provisions
and limitations not contained therein.” State v. Green, 348 N.C. 588, 596, 502 S.E.2d
819, 824 (1998) (quoting In re Banks, 295 N.C. 236, 239–40, 244 S.E.2d 386, 388–89
(1978)).
N.C. Gen. Stat. § 20-179(c) defines a “prior [DWI] conviction” as a “grossly
aggravating factor[ ]” for enhanced sentencing purposes if “[t]he conviction occurred
within seven years before the date of the offense for which the defendant is being
sentenced[.]” N.C. Gen. Stat. § 20-179(c)(1)(a) (2017). N.C. Gen. Stat. § 20-4.01
provides in relevant part that “[u]nless the context requires otherwise, the following
definitions apply throughout . . . Chapter [20] . . . .” Subdivision (4a)(a)(1) of that
section defines “[c]onviction” in relevant part as “[a] final conviction of a criminal
offense[.]” N.C. Gen. Stat. § 20-4.01(4a)(a)(1) (2017) (emphasis added). Defendant
argues that because his prior DWI conviction was pending on appeal at the time of
the sentencing hearing, the prior conviction was not “final” under Chapter 20’s
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Opinion of the Court
definition of a “conviction” and it thus did not constitute a “prior conviction” under
N.C. Gen. Stat. § 20-179(c)(1)(a). We disagree.
Despite N.C. Gen. Stat. § 20-4.01(4a)(a)(1) defining a conviction as a “final”
conviction, we believe the “context [of finding the existence of a grossly aggravating
factor based upon a prior DWI conviction in superior court] requires,” id. § 20-4.01,
an interpretation that a “prior conviction” not be limited to only those not pending on
direct appeal to the appellate courts. The plain and unambiguous language of the
more specific statute of N.C. Gen. Stat. § 20-179(c)(1)(a) defines a “prior conviction”
merely as a “conviction [that] occurred within seven years before” the later offense.
Because there is no language limiting that definition to a “final” conviction or only
those not challenged on appeal, we have no authority to interpret the statute as
imposing such a limitation.
Further, even if we found this statutory language ambiguous, we find support
for our interpretation on the grounds that interpreting it otherwise would undermine
the purpose behind enhancing a repeat DWI offender’s sentence, as a person with a
qualifying prior conviction appealed from superior court could be sentenced for a later
conviction as though he or she had no prior conviction. Additionally, we note that if
a person’s sentence is enhanced based upon a prior DWI conviction that is later
reversed on direct appeal, he or she is entitled to be resentenced at the proper offender
level without that prior conviction. See State v. Bidgood, 144 N.C. App. 267, 276, 550
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Opinion of the Court
S.E.2d 198, 204 (2001) (remanding for resentencing on the proper prior record level
when the defendant’s sentence was enhanced based on a prior conviction that was
subsequently reversed on appeal).
Therefore, the superior court properly concluded that defendant’s prior DWI
conviction, despite it being pending on appeal, constituted a “prior conviction” under
N.C. Gen. Stat. § 20-179(c)(1). Accordingly, we hold the superior court properly found
the existence of a grossly aggravating factor based on the prior DWI conviction and
affirm its sentence.
As a secondary matter, we note that this Court has since filed an opinion
adjudicating defendant’s appeal from his prior DWI conviction. See State v. Cole, No.
17-732 (N.C. App. Aug. 21, 2018) (unpublished). While we found no error in part, we
also remanded in part for resentencing and for the entry of a suppression order, id.
slip op. at 19, with instructions for the superior court to resolve a conflict in the
testimony presented at the suppression hearing, id. slip op. at 10–12. We reiterate
that if this DWI conviction is later overturned, defendant is entitled to be resentenced
at the appropriate offender level and the entry of a properly reflective judgment.
VI. Conclusion
The superior court properly denied defendant’s motion to dismiss the
indictment for lack of jurisdiction because that charge was no longer pending or valid
in district court. The superior court properly refused to suppress the evidence
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Opinion of the Court
obtained after the roadside breath test because its findings support a conclusion that,
before that test, Officer Ray had objective reasonable suspicion to justify prolonging
the initial traffic stop to investigate defendant’s potential impairment. The superior
court also properly refused to suppress the intoxilyzer results because it properly
concluded that Officer Ray’s request that defendant provide another sample for the
same breath test on a different machine was not a request for a “subsequent chemical
analysis” triggering N.C. Gen. Stat. § 20-139.1(b5)’s re-advisement requirement.
Absent error in these suppression rulings, the trial court did not commit plain error
by admitting that evidence at trial. Finally, the superior court properly concluded
that defendant’s prior DWI conviction, despite it being pending on appeal, constituted
a “prior conviction” under N.C. Gen. Stat. § 20-179(c)(1), and thus supported its
finding of the existence of a grossly aggravating factor for enhanced sentencing
purposes. Accordingly, we hold that defendant received a fair trial and sentence, free
of error.
NO ERROR.
Chief Judge McGEE and Judge ARROWOOD concur.
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