State v. Finney, COA20-354

Docket NºNo. COA20-354
Citation858 S.E.2d 145
Case DateJune 01, 2021
CourtCourt of Appeal of North Carolina (US)

858 S.E.2d 145 (Table)

STATE of North Carolina

Marcia Carson FINNEY, Defendant.

No. COA20-354

Court of Appeals of North Carolina.

Filed June 1, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Jonathan J. Evans, for the State.

Cooley Law Office, by Craig M. Cooley, Cary, for Defendant.

INMAN, Judge.

¶ 1 Defendant Marcia Carson Finney ("Defendant") appeals from a judgment entered following convictions for driving while intoxicated ("DWI") and habitual impaired driving. Defendant contends that the trial court erred in denying her motion to suppress her blood alcohol concentration results on the ground that police lacked probable cause to arrest her for DWI. After careful review, we hold Defendant has failed to demonstrate error.


¶ 2 The evidence introduced at trial tends to show the following:

¶ 3 On 17 October 2017, at about 8:00 a.m., Shelby City Police Officer Jason Torres, accompanied by Detective Scott Hamrick, responded to a disturbance call at a Waffle House concerning a group of disruptive customers upset about cold food. Upon arrival, Officer Torres saw Defendant, her father, and her boyfriend leaning against the wall of the Waffle House. The manager of the Waffle House told Officer Torres that Defendant and her companions were the disruptive patrons that prompted the call to police.

¶ 4 Officer Torres reviewed the surveillance footage from the Waffle House, which showed Defendant drive through several parking spots, ignore the traffic pattern for the lot, and park the car before exiting the vehicle with her father and boyfriend. A witness at the scene told Officer Torres that Defendant's car hit the curb as she was parking the vehicle.

¶ 5 Officer Torres noted that Defendant, her father, and her boyfriend were all visibly impaired. He saw three open alcoholic beverage containers in their car and smelled a noticeably strong odor of alcohol from Defendant's breath. Detective Hamrick likewise observed a strong odor of alcohol from Defendant's breath. Officer Torres further noted that their car was parked slightly crooked, albeit within the lines of its parking space. Based on the video, witness statements, and his observations of Defendant indicating intoxication, Officer Torres began investigating Defendant for DWI.

¶ 6 Officer Torres asked Defendant if she had consumed any alcohol and Defendant responded that she had the previous night. When asked what time she consumed the alcohol, Defendant gave four different answers, telling Officer Torres that she had a drink at 7:00, 8:00, 9:00, and, finally, 10:00 p.m. Officer Torres observed that Defendant's eyes were red and glassy. Following questioning, Defendant offered to take a breathalyzer test, so Officer Torres contacted another officer and requested he bring a portable breathalyzer to the scene.

¶ 7 While waiting for the breathalyzer to arrive, Officer Torres conducted a simple dexterity test with Defendant—requiring her to touch each fingertip to her thumb while counting aloud—which she passed. Defendant dropped her phone on the ground and, after picking it up, returned it to her back pocket after a few attempts. Officer Torres then asked Defendant if she knew her alphabet; before he could finish speaking, Defendant began reciting the alphabet. Officer Torres asked her to stop so he could finish his question, and asked Defendant to recite the alphabet starting with the letter "F" and ending with the letter "N." Defendant started with the wrong letter. Officer Torres stopped Defendant and repeated his request. Defendant again failed to comply, starting with "L" and ending with "O." Officer Torres repeated his request a third time, and Defendant recited the letters of the alphabet consistent with his request.

¶ 8 After the alphabet test, Defendant offered to "walk the line" and then proceeded to twirl, which Officer Torres considered peculiar given that she was currently being questioned by police about driving while impaired. Detective Hamrick, too, observed that Defendant's motor skills seemed normal but that she was unusually animated and carefree considering the circumstances. A short time later, an officer with the portable breathalyzer arrived and Officer Torres administered two tests. After both tests returned positive results for alcohol, Officer Torres placed Defendant under arrest for DWI. Defendant was then taken to the county detention center, where test results showed her blood alcohol concentration as .24, three times the legal limit.

¶ 9 Defendant was indicted on one count each of DWI and habitual impaired driving. Prior to trial, Defendant moved to suppress all evidence obtained from the stop at the Waffle House for lack of probable cause. The trial court heard Defendant's motion on 21 October 2019 and heard voir dire testimony from Officer Torres and Detective Hamrick. The trial court also viewed footage from Officer Torres's and Detective Hamrick's body cameras, as well as the Waffle House surveillance video. Defendant testified in support of her motion.

¶ 10 During cross-examination by Defendant's counsel, Officer Torres testified that he had never performed a DWI stop before the date he investigated Defendant, had never conducted any sobriety tests outside of training, and had not been trained to conduct standardized field sobriety tests like the horizontal gaze nystagmus or walk-and-turn tests. Defendant's counsel also solicited answers showing Officer Torres's testimony included specific details that were not found in his written report, despite his testifying earlier that his report was "complete."

¶ 11 At the conclusion of the pre-trial hearing and after hearing arguments of counsel, the trial court made oral findings of fact and concluded Officer Torres had probable cause to arrest Defendant under the totality of the circumstances. Specifically, the trial court found:

Upon his initial talking to [Defendant], [Officer Torres] did note ... as also noted by Detective Hamrick, a strong odor of alcohol from [Defendant's] breath [and] that she ... drove across spaces to pull into the space that she pulled into ....

That she ... parked crooked, I think, over-emphasizes her parking. It's clear that her parking was not perfect. ... [T]he parking crooked, based on what the Court saw in the video ... is almost minimal to the point of being ignored, but the officer noted that she wasn't parked completely straight.

She was leaning against the wall. And even after the officer asked her to stop leaning against the wall, she leaned ... against the wall again ... during the course of his talking to her.

She admitted drinking alcohol. She said it was the night before and ... had been drinking between, between 7:00, 8:00, 9:00, and then finally said 10:00 p.m. last night. ... The officer observed that she had red, glassy eyes.

... [D]uring ... his test of requesting to perform the alphabet, ... she started early, and twice she performed that alphabet test wrong. She started early twice, performed it wrong. The officer then—which the Court ... gives credence to—formed an opinion that her mental faculties were appreciably impaired by ... alcohol.

She did appear—to the officer and in the video that the Court saw—somewhat, somewhat jovial, animated, and not nervous. She did indeed, when the officer asked her to step away from the ... place where she was questioned ... she did indeed drop her phone, which is another indicia of a totality of circumstances of, of probable cause of impairment.

She did test—she did test

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