State v. Cole
| Decision Date | 20 November 2018 |
| Docket Number | No. COA18-286,COA18-286 |
| Citation | 822 S.E.2d 456,262 N.C.App. 466 |
| Parties | STATE of North Carolina v. Gregory Garrison COLE |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General J. Rick Brown, for the State.
Devereux & Banzhoff, PLLC, Asheville, by Andrew B. Banzhoff, for defendant.
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 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. § 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.
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. 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.
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 must dismiss the indictment. See N.C. Gen. Stat. § 15A-954(a)(6) (2017) (). 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] 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...
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...superior court." State v. Gunter , 111 N.C. App. 621, 624, 433 S.E.2d. 191, 193 (1993) (emphasis added); see also State v. Cole , ––– N.C. App. ––––, 822 S.E.2d 456 (2018) (Superior Court held concurrent jurisdiction with the District Court over a DWI charge when the grand jury returned a p......