State v. Tappe, No. COA99-168.

• Decision Date: 18 July 2000
• Docket Number: No. COA99-168.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Peter George TAPPE, Defendant.

533 S.E.2d 262

139 NC App. 33

STATE of North Carolina v. Peter George TAPPE, Defendant.

No. COA99-168.

Court of Appeals of North Carolina.

July 18, 2000.

Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

D. Keith Teague, P.A., by Danny Glover, Jr., Elizabeth City, for defendant-appellant.

JOHN, Judge.

Defendant appeals judgment entered upon conviction by a jury of driving while impaired. Defendant contends the trial court erred by denying his motion to suppress results of a breathalyzer test. We conclude the trial court did not err.

The State's evidence at trial tended to show the following: On 21 August 1988, North Carolina Highway Patrol (the Patrol) Sergeant Roscoe Spencer (Spencer), while operating his Patrol automobile, passed a vehicle traveling in the opposite direction and thereupon "observed [it] ... cross[ ] the center line." Spencer immediately pursued and stopped the vehicle, operated by defendant. Upon approaching, Spencer noticed a "strong odor of alcohol about [defendant's] breath [and that] his eyes were glassy and watery." Spencer asked defendant if he had been drinking. The latter acknowledged he had consumed one-half the contents of an open beer container located in his vehicle, but denied having done so while driving. He also remarked that he was of German origin and that "in Germany they drank beer for water."

Based upon his observations of and conversation with defendant, Spencer arrested the latter on a charge of driving while impaired. Spencer instructed one of the two passengers in defendant's vehicle to drive it to the Sheriff's Department in Camden while defendant was being transported in the Patrol automobile.

Upon arriving at the Sheriff's Department, Spencer began filling out an Alcohol Influence Report (A.I.R.) and conducted certain sobriety tests. Spencer's notes on the tests had been destroyed approximately five years following the date of defendant's arrest, and Spencer was unable to recall his characterization of defendant's performance on the tests.

Following the sobriety tests, Patrol Sergeant Raymond Potts (Potts), a certified chemical analyst, administered a breathalyzer test to defendant, which revealed a 0.34 blood alcohol concentration. Thereafter, both Spencer and Potts accompanied defendant to the magistrate's office, where bond was set at $250.00 and defendant was ordered detained for sixteen (16) hours unless released into the custody of a responsible adult. Defendant contacted both his girlfriend and his attorney in Virginia, defendant's home state, and was released upon the latter's arrival approximately two and onehalf hours later.

Defendant returned to Virginia and did not address the DWI charge until 1998, when he attempted to renew his Virginia driver's license. During the ten year period following defendant's arrest, most documents pertaining to his case were purged and destroyed in accordance with standard Patrol procedures. The sole documents remaining at the time of trial were Spencer's affidavit (Spencer's affidavit) filled out as charging officer the afternoon of defendant's arrest and the original "Breathalyzer Test Record" signed by Potts, indicating a 0.34 blood alcohol concentration.

In his testimony, defendant related that he had conveyed to Spencer his lack of familiarity with the area and explained that he had crossed the center line in order to see a real estate agent whom he was following to view property in the area. Further, upon learning of the 0.34 alcohol concentration reading, he had requested a blood test several times because he had consumed only one-half to three-quarters of the beer from the can in his vehicle. Defendant testified Spencer responded he had "enough evidence ... [and] need[ed] no blood test," and that he was never given access to a telephone or an opportunity to contact a hospital or doctor. Defendant recalled performing sobriety tests at the Sheriff's Department.

Defendant first contends the trial court erred in denying his motion to suppress all evidence obtained subsequent to his arrest. Defendant asserts Spencer lacked probable cause for the arrest. We disagree.

Probable cause for an arrest is

a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.

State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (citation omitted). To justify a warrantless arrest, it is

not necessary to show that the offense was actually committed, only that the officer had a reasonable ground to believe it was committed.

State v. Thomas, 127 N.C.App. 431, 433, 492 S.E.2d 41, 42 (1997). The existence of such grounds is determined by the "practical and factual considerations of everyday life on which reasonable and prudent people act." State v. Crawford, 125 N.C.App. 279, 281, 480 S.E.2d 422, 424 (1997). If there is no probable cause to arrest, evidence obtained as a result of that arrest and any evidence resulting from the defendant's having been placed in custody, should be suppressed. State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992).

At the voir dire hearing conducted upon defendant's motion to suppress, Spencer testified he met a vehicle traveling in the opposite direction on 21 August 1988 and "observed [it] ... cross[ ] the center line" after passing Spencer's Patrol automobile. Spencer related that upon stopping the vehicle, he "could smell alcohol that was inside" it and noted that defendant, the driver, "had a strong odor of alcohol about his breath" when he talked. As defendant accompanied Spencer to the Patrol automobile, Spencer observed "a strong odor of alcohol about [defendant's] breath, [and] his eyes were watery and glassy."

Based upon the foregoing observations and his conversation with defendant, Spencer formed the opinion that defendant was "impaired" and placed him under arrest. Spencer indicated he had completed a citation at the scene which included notes taken prior to and after defendant's arrest, but explained the citation was not introduced at trial because it had been purged five years following institution of the charge against defendant. However, Spencer's affidavit was used to refresh his recollection of defendant's behavior and appearance on 21 August 1988.

During the hearing, defendant indicated that a real estate agent had offered him a beer on the date in question prior to defendant's viewing property in the Camden County area. Defendant maintained:

I got me this Milwaukee beer and I didn't like it, it was terrible. So I drink [sic] only a little bit and put it there in the car. I did not even drink it in the car. What I drink [sic] out of this beer was on his property there.

Defendant claimed he drank one half the can of beer and left the remaining portion in his vehicle. After being stopped by Spencer, defendant explained he had crossed the center line because he was attempting to follow the real estate agent traveling in front of him.

Following the hearing, the trial court rendered the following pertinent findings of fact:

2. That [Defendant] was observed by Trooper Roscoe Spencer ... crossing the center line of the highway and that he was thereafter stopped....

3. It was observed that the Defendant had a strong odor of alcohol on his breath and had glassy, watery eyes.

4. Upon making this observation, Trooper Spencer formed an opinion that the Defendant was, in his opinion, under the influence of an impairing substance and he was arrested for the same.

Based upon these findings, the court concluded "Spencer had sufficient probable cause to arrest the defendant for driving while impaired."

It is well established that

[t]he scope of review on appeal of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law. State v. Cabe, 136 N.C.App. 510, 512, 524 S.E.2d 828, 830,disc. review denied, 351 N.C. 475, ___ S.E.2d ___ (2000) (citations omitted).

In the case sub judice, the trial court's findings are supported by evidence adduced at the suppression hearing, are thereby conclusive on appeal, and fully warrant the trial court's conclusion of law "that Trooper Spencer had sufficient probable cause to arrest the Defendant for driving while impaired." Spencer's observations of defendant, set forth fully above and including his observation of defendant's vehicle crossing the center line, defendant's glassy, watery eyes, and the strong odor of alcohol on defendant's breath, provided sufficient evidence of probable cause to justify the warrantless arrest of defendant. See, e.g., State v. Rogers, 124 N.C.App. 364, 369-70, 477 S.E.2d 221, 224 (1996),

disc. review denied, 345 N.C. 352, 483 S.E.2d 187 (1997) (probable cause for driving while impaired arrest based upon officer's opportunity to observe defendant, to speak with him and officer's noting of strong odor of alcohol on defendant), and State v. Adkerson, 90 N.C.App. 333, 336-37, 368 S.E.2d 434, 436 (1988)(probable cause for driving while impaired arrest based upon trooper's observations of defendant's driving, appearance and behavior). The trial court did not err in denying defendant's motion to suppress.

Defendant next challenges admission into evidence of the results of defendant's breathalyzer test. Defendant contends N.C.G.S. § 20-139.1(b)(1984, amended 1997) was contravened at trial in that the State failed to prove a simulator test had been satisfactorily performed prior to administration of defendant's actual test. Again, we disagree.

The version of G.S. § 20-139.1(b) in effect at the time of defendant's 1988 arrest contained two prerequisites for a valid chemical analysis:

First, it require[d] that such analysis shall have been performed

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