State v. Teate, COA05-1679.
| Decision Date | 19 December 2006 |
| Docket Number | No. COA05-1679.,COA05-1679. |
| Citation | 638 S.E.2d 29 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Kimberly Frances TEATE. |
Don Willey, Jefferson, for defendant-appellant.
Kimberly Frances Teate ("defendant") appeals from a judgment entered upon a jury verdict finding her guilty of driving while impaired ("DWI"). We find no error.
Defendant pled guilty to DWI in Rowan County District Court and was sentenced as a Level Two offender and placed on probation for 36 months. Defendant appealed the District Court's judgment to Superior Court for trial de novo.
At trial in Rowan County Superior Court, Officer Garrett Doty ("Officer Doty") of the Granite Quarry Police Department, testified he and five other officers conducted a license checkpoint at the intersection of Faith and Byrd Road in the early morning hours of 1 November 2003. Shortly after one o'clock that morning, Officer Doty observed a truck drive through the checkpoint, nearly striking him and two other officers. Officer Doty slapped the back of the truck and yelled for the driver to stop. The truck stopped approximately 275 feet away from Officer Doty. Officer Doty noticed a very strong odor of alcohol coming from the vehicle. Since there were three people in the truck, Officer Doty asked defendant, who was driving, to step out of the vehicle.
Officer Doty testified that after defendant stepped out of the vehicle, he noticed a moderate odor of alcohol coming from defendant, observed that her eyes appeared glassy and her speech was slurred and she had trouble completing sentences. Officer Doty then conducted two field sobriety tests. He first instructed defendant to count backwards from number 67 to 58, and next she was to count one through four and back touching each finger with her thumb.
After forming an opinion that defendant was appreciably impaired, Officer Doty placed defendant under arrest and transported her to the Salisbury Police Department, where he advised her of her rights and administered an Intoxilyzer test. The Intoxilyzer registered a breath alcohol level of 0.08. The State presented Paul Glover ("Glover"), an expert witness in retrograde extrapolation of average alcohol elimination rates. Glover testified that defendant's breath alcohol concentration at the time of the stop was .10.
Defendant presented evidence that she had consumed one alcoholic beverage consisting of Wild Turkey bourbon and Diet Sundrop prior to driving and had mixed a second drink and placed it in the console of the vehicle. Defendant presented further evidence that when she approached the checkpoint, she believed she was coming up on an accident scene, and that the officers, with their flashlights, were motioning for her to continue driving.
On 4 August 2005 the jury returned a verdict finding defendant guilty of DWI. Defendant was sentenced to a Level Two punishment: a minimum term of 12 months and a maximum term of 12 months in the North Carolina Department of Correction. That sentence was suspended and defendant was placed on supervised probation for 30 months. As a special condition of probation, she was to serve seven days in the custody of the Rowan County Sheriff. Defendant appeals from this judgment.
In a pre-trial hearing on defendant's motion to suppress the evidence for lack of probable cause, Officer Doty explained to the court that he conducted four roadside tests: the two counting tests described at trial, as well as a horizontal gaze nystagmus test ("HGN") and four Alco-Sensor tests, which indicated impairment. The trial court refused to consider the HGN test as a basis for Officer Doty's determination of probable cause, but the court considered the two counting tests and the Alco-Sensor test, despite the fact that Officer Doty was not certified to administer those tests. Officer Doty testified that he employed the non-standard counting tests because defendant reported balance problems and was wearing high heeled boots. As a result, he considered it unfair to subject her to the traditional walk-and-turn and stand-on-one-leg tests that he was certified to administer. Based on the odor of alcohol, defendant's glassy eyes and slurred speech, her difficulty with the counting tests, and the Alco-Sensor readings, Officer Doty concluded that defendant was appreciably impaired.
Defendant initially argues that the trial court erred in denying her motion to suppress evidence gathered from the stop since the officer lacked probable cause to arrest defendant for DWI. "[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact `are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'" State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citations omitted). We will not disturb the trial court's conclusions where they are supported by its findings of fact. State v. Logner, 148 N.C.App. 135, 138, 557 S.E.2d 191, 193-94 (2001).
Here, the trial court's findings included, inter alia:
7. That the defendant did drive through the license checkpoint in a dual wheel Chevrolet truck without stopping.
. . .
16. That Officer Doty immediately smelled a strong odor of alcohol coming from the truck.
. . .
20. That when [defendant] got to the rear of the truck, Officer Doty testified that he smelled an odor that he characterized as moderate on the defendant's breath.
. . .
22. That the defendant told Officer Doty that she had drank "some."
23. That he noticed that her eyes appeared "glassy."
24. That he noticed that her speech was slurred and that she appeared "thick tongued," and was having trouble with her words.
. . .
34. That [when asked to count backwards from sixty-seven to fifty-eight] the defendant hesitated on the numbers sixty-one (61) and fifty-nine (59) enough to be noticeable to him.
35. That Officer Doty also asked the defendant to count one, two, three, four and then, four, three, two, one, while touching her four fingers to her thumb one at a time while she counted.
. . .
39. That on the second cycle of counting, the defendant missed touching her second finger twice and instead of counting one, two, three, four, then four, three, two, one, she counted one, two, three, four, then one, two, three, four.
40. That on the third cycle of counting, the defendant counted one, two, three, four, then four, three, three, one and missed the second finger touching.
41. That Officer Doty testified that he then asked the defendant to submit to a breath [test] using the Alco-Sensor instrument.
42. That Officer Doty had been trained by his field training officer how to use that instrument, but is not certified to conduct such a test.
43. That the Alco-Sensor instrument was assigned to his patrol car and no one else used his patrol car except himself.
44. That the instrument had undergone its required preventative maintenance according to the log maintained in the Granite Quarry Police Department.
45. That the defendant blew into the Alco-Sensor two times and the results were .08 both times.
46. That Officer Doty asked . . . the defendant to provide two additional breath samples for the Alco-Sensor instrument and she did.
47. That the next two readings on the Alco-Sensor were .11.
These findings are supported by competent evidence in the form of Officer Doty's testimony. Officer Doty testified that defendant failed to stop at the license checkpoint; that she had an odor of alcohol about her, as well as glassy eyes and slurred speech; that she had difficulty performing counting tests and that her Alco-Sensor readings indicated intoxication. Based on these observations, Officer Doty placed defendant under arrest for DWI. Although Officer Doty was not certified to conduct the two counting tests listed above and was also not certified to administer the Alco-Sensor test, defendant did not object to the introduction of this evidence. "In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R.App. P. 10(b)(1)(2006). Because no objection was made to the introduction of the counting tests at either the motion to suppress hearing or at trial, the introduction of those tests is beyond the scope of this appeal.
Alco-Sensor test results cannot be used as substantive evidence of impairment, but may be admitted as evidence in support of an officer's determination of probable cause for an arrest. State v. Bartlett, 130 N.C.App. 79, 82, 502 S.E.2d 53, 55 (1998). Here, the Alco-Sensor results were admitted during the motion to suppress hearing for the purpose of determining whether Officer Doty had probable cause to arrest defendant. No objection was made when the test results were introduced. Since no objection was made, we need not address the issue of whether an officer must be certified to administer such tests.
We next must determine whether the trial court's findings support a conclusion that Officer Doty had probable cause to arrest defendant for DWI. "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances strong in themselves to warrant a cautious man in believing the accused to be guilty." State...
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