Pinyatello, Matter of
| Decision Date | 06 June 1978 |
| Docket Number | No. 778SC645,778SC645 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of the Driver's License of Lewis PINYATELLO. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State, appellee.
Barnes, Braswell & Haithcock by R. Gene Braswell and Michael A. Ellis, Goldsboro, for petitioner appellant.
The petitioner contends that his arrest was illegal because the alleged violation of G.S. 20-138 was a misdemeanor, which was not committed in the presence of the arresting officer, and that, therefore, the evidence relating to the attempted administration of the breathalyzer test should be excluded.
G.S. 15A-401(b)(2), effective 1 July 1974, gives the officer broadened authority to arrest for crimes committed out of his presence. Prior to this statute North Carolina law limited arrest without a warrant for crimes not committed in the presence of the officer to felonies, when there was reasonable ground to believe that the person will evade arrest if not immediately taken into custody. See Official Commentary of the Criminal Code Commission following G.S. 15A-401.
The statute broadens the authority to include felonies generally and misdemeanors when the officer has probable cause to believe the person (1) has committed a misdemeanor and (2) will not be apprehended unless immediately arrested, or may cause physical injury to himself or others, or damage to property unless immediately arrested.
In the case sub judice the totality of the facts and circumstances surrounding the arrest and known to the arresting officer was sufficient to give him probable cause to believe that the petitioner had operated a motor vehicle upon a public highway while under the influence of intoxicating liquor, in violation of G.S. 20-138. Officer Warrick went to the scene of the collision in response to a call. There he found that the collision occurred on a public street. While talking to the occupants of one vehicle, the petitioner approached and asserted that he had been operating the other vehicle. The officer detected a strong odor of alcohol about the person of the petitioner; his eyes were bloodshot; he was unsteady when walking and swaying when stationary.
It is apparent that the officer did not have probable cause to believe that petitioner would not be apprehended unless immediately arrested (G.S. 15A-401(b)(2)b1), but under the alternative provision (G.S. 15A-401(b)(2)b2) he had probable cause to believe that petitioner, if left at the scene while under the influence of intoxicating liquor, "may cause physical injury to himself or others, or damage to property unless immediately arrested." The evidence discloses that the arresting officer was the only officer present at the scene. There was no evidence that petitioner's vehicle was inoperable. If left at the scene while the officer left to obtain a warrant and without anyone in authority to control the petitioner by preventing him from operating his car or protecting him from traffic hazards on a public street, the officer had probable cause for believing that petitioner may cause injury to himself or others. We conclude that under the circumstances the arresting officer had probable cause to arrest the defendant for violation of G.S. 20-138 committed out of his presence.
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State v. Spencer
...in cases involving charges of driving under the influence which did not occur in the presence of the officer. See In re Pinyatello, 36 N.C.App. 542, 245 S.E.2d 185 (1978). Also see In re Gardner, 39 N.C.App. 567, 251 S.E.2d 723 (1979). Investigating officers have a responsibility to take re......
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State v. Thompson
...15A-401(b)(2) to arrest any person when they have probable cause to believe that the person has committed a felony. In re Pinyatello, 36 N.C.App. 542, 245 S.E.2d 185 (1978). We have previously described "probable cause" in the following Probable cause for an arrest has been defined as "a re......
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Thurman v. Commissioner, North Carolina Division of Motor Vehicles, No. COA07-668 (N.C. App. 5/20/2008)
...to have been operating a motor vehicle on the highway while under the influence of intoxicating liquor." In re Pinyatello, 36 N.C. App. 542, 545, 245 S.E.2d 185, 187 (1978) (emphasis If a person's driver's license is subsequently revoked for willfully refusing to submit to a chemical analys......
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Quick v. North Carolina Div. of Motor Vehicles
...basis of his refusal to take the chemical analysis. In In re Gardner, 39 N.C.App. 567, 251 S.E.2d 723 (1979), and In re Pinyatello, 36 N.C.App. 542, 245 S.E.2d 185 (1978), Court determined that even if an arrest for an implied-consent offense does not comply with section 15A-401(b)(2), "the......