392 S.E.2d 603 (N.C. 1990), 405A89, State v. Tew

Docket Nº:405A89.
Citation:392 S.E.2d 603, 326 N.C. 732
Party Name:STATE of North Carolina v. Charlie TEW.
Case Date:June 13, 1990
Court:Supreme Court of North Carolina

Page 603

392 S.E.2d 603 (N.C. 1990)

326 N.C. 732

STATE of North Carolina


Charlie TEW.

No. 405A89.

Supreme Court of North Carolina.

June 13, 1990

Page 604

Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Special Deputy Atty. Gen., Raleigh, for the State-appellant.

Barnes, Braswell, Haithcock & Warren, P.A. by R. Gene Braswell and Glenn A. Barfield, Goldsboro, for defendant-appellee.

MEYER, Justice.

The issue presented in this case requires us to interpret certain provisions of N.C.G.S. § 20-139.1, the part of our Motor Vehicle Act governing the performing of chemical analysis of a driver's alcohol concentration and the admissibility into evidence of the results of such tests.

[326 N.C. 734] On 22 July 1987, defendant was arrested for driving while impaired (DWI). Defendant pled not guilty in district court and was adjudged guilty by Judge Joseph E. Setzer. Defendant appealed to the superior court for a trial de novo, entering a plea of not guilty. After impanelment of the jury, but prior to introduction of evidence, defendant orally moved to suppress the results of a chemical analysis performed at the time of his arrest. The court held a voir dire hearing on the motion, at which time Judge Samuel T. Currin denied defendant's motion to suppress. Defendant then entered a plea of guilty to DWI, specifically reserving his right to appeal the denial of his motion to suppress. Judge Currin found defendant guilty and sentenced him to level two punishment for the offense. Defendant appealed to the Court of Appeals. That court reversed the holding of the trial court and held that defendant's motion to suppress the test results should properly have been granted. Judge Cozort dissented from the majority vote. The State appeals to this Court as of right. This Court allowed the State's request for writ of supersedeas and stay on 25 September 1989. We now reverse the decision of the Court of Appeals.

N.C.G.S. § 15A-979(b) provides that "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." Although not a part of the statute, the official commentary to that section provides some insight into the rationale and consequences of this provision:

[Subsection (b) ] permits a defendant whose motion to suppress was denied to plead guilty and then appeal the ruling of the judge on the motion. If the appellate court sustains the ruling on the motion, the conviction stands; if the ruling on the motion is overturned, then the defendant is entitled to a new trial at which the evidence would be suppressed. This provision is intended to prevent a defendant whose only real defense is the motion to suppress from going through a trial simply to preserve his right of appeal. This section on its face would apply whether the appeal is from district court or superior court, though the right of trial de novo already guarantees the defendant the right to renew motions in superior court--even after a plea of guilty. If the superior court judge reaffirms the ruling denying the motion to suppress, however, the Constitution of North Carolina may force the defendant either to plead guilty in superior court or go to trial....

[326 N.C. 735] N.C.G.S. § 15A-979 official commentary (1988).

Page 605

This Court has held that when a defendant intends to appeal from the denial of a suppression motion pursuant to this section, he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute. State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2164, 64 L.Ed.2d 795 (1980). In the case sub judice, defendant did in fact specifically reserve his right to appeal upon entering his plea of guilty. Consequently, the path has been paved for us now to address the substantive issue presented.

The State takes issue with the Court of Appeals' interpretation of the relevant statute, N.C.G.S. § 20-139.1 (1983). In relevant part, this statute provides as follows:

A chemical analysis, to be valid, must be performed in accordance with the provisions of this section. The chemical analysis must be performed according to methods approved by the Commission for Health Services by an individual possessing a current permit issued by the Department of Human Resources for that type of...

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