Heard in the Court of Appeals June 4, 2014.
Mecklenburg County. No. 10 CRS 250836.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-appellant.
BRYANT, Judge. Judges CALABRIA and GEER concur.
Appeal by defendant from judgment entered 1 August
2013 by Judge Susan E. Bray in Mecklenburg County Superior Court.
Defendant's Knoll motion was properly dismissed where the magistrate followed N.C. Gen. Stat. § 15A-511(b) in informing defendant of his rights and in setting an option bond such that any technical statutory violation committed by the magistrate was not prejudicial to defendant. Where the State presented sufficient evidence such that a reasonable person could believe defendant committed the offense of driving while impaired, the trial court properly denied defendant's motion to suppress for lack of probable cause. A technical statutory violation committed by the trial court during a pre-trial hearing but not at trial did not result in error that would entitle defendant to a new trial. Where the trial court determined that a driving while impaired checkpoint was established for a legitimate primary purpose and that the Brown factors were met, defendant's motion to suppress evidence of the checkpoint was properly denied.
On 21 October 2010, defendant Bruce Allen Townsend, Jr., was arrested for driving while impaired. On 24 August 2011, defendant was convicted in Mecklenburg County District Court of driving while impaired and sentenced to thirty days imprisonment. The District Court suspended defendant's sentence and placed him on unsupervised probation for twelve months. Defendant was further ordered to obtain a substance abuse assessment, comply with recommended treatment, complete twenty-four hours of community service, and pay courts costs, a $100.00 fine, and a $250.00 community service fee.
Defendant appealed to Superior Court, and on 30 August 2012, was tried before a jury during the criminal session of Mecklenburg County Superior Court, the Honorable Susan E. Bray, Judge presiding. At trial, the State's evidence tended to show the following.
On the evening of 21 October 2010, a checkpoint was established in the 7200 block of Providence Road in Charlotte by the Charlotte-Mecklenburg Police Department to check for impaired drivers and other vehicular infractions. At approximately 11:28 p.m., defendant drove up to the checkpoint where he encountered Officer Todd Davis. Officer Davis engaged defendant in conversation and noticed that defendant emitted an odor of alcohol and had red, bloodshot eyes. When asked by Officer Davis whether he had had anything to drink that evening, defendant responded that he had consumed several beers earlier. Officer Davis administered two alco-sensor tests to defendant; both tests were positive for alcohol.
Officer Davis then asked defendant to perform several field sobriety tests. Officer Davis testified that when he administered a horizontal gaze nystagmus test to defendant, he noticed three signs of intoxication. On a " walk and turn" test, defendant exhibited two signs of intoxication, and on a " one leg stand" test, defendant showed one sign of intoxication. Officer Davis also requested that defendant recite the alphabet from J to V, which defendant did without incident. Officer Davis subsequently arrested defendant for driving while impaired.
Defendant was taken to a Breath Alcohol Testing vehicle located at the checkpoint where he blew a 0.10 on his first test and a 0.09 on his second test. Officer Davis then drove defendant to the Mecklenburg County jail. Defendant was admitted to the jail at 12:56 a.m., appeared before the magistrate at 2:54 a.m., and was released to his wife's custody at 4:45 a.m.
Defendant was convicted by a jury of driving while impaired and sentenced by the trial court to sixty days imprisonment. Defendant's sentence was suspended and he was placed on unsupervised probation for twenty-four months. Defendant was also ordered to pay court costs, a $100.00 fine, and a $250.00 community service fee; perform twenty-four hours of community service; surrender his driver's license to the clerk; not operate a motor vehicle until his license is restored; and to complete all treatments recommended by his alcohol assessment. Defendant appeals.
On appeal, defendant raises four issues as to whether the trial court: (I) erred in denying defendant's motion to dismiss pursuant to defendant's Knoll motion; (II) erred in denying defendant's motion to suppress for lack of
probable cause; (III) abused its discretion in denying defendant's motion to redact evidence of the alco-sensor test; and (IV) erred in denying defendant's motion to suppress evidence resulting from the checkpoint.
Defendant first argues that the trial court erred in denying his Knoll motion to dismiss. We disagree.
A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), alleges that a magistrate has failed to inform a defendant of the charges against him, his right to communicate with counsel, family, and friends, and of the general circumstances under which he may secure his release pursuant to N.C. Gen. Stat. § 15A-511. See N.C.G.S. § 15A-511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (" Upon a defendant's arrest for DWI, the magistrate is obligated to inform him of the charges against him, of his right to communicate with counsel and friends, and of the general circumstances under which he may secure his release." (citation omitted)). If a defendant is denied these rights, the charges are subject to being dismissed. Knoll, 322 N.C. at 544-45, 369 S.E.2d at 564. " [I]n those cases arising under N.C.G.S. § 20-138.1(a)(2), prejudice will not be assumed to accompany a violation of defendant's statutory rights, but rather, defendant must make a showing that he was prejudiced in order to gain relief." Id. at 545, 369 S.E.2d at 564. On appeal, the standard of review is whether there is competent evidence to support the trial court's findings of fact and its conclusions of law. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982) (citation omitted). " If there is a conflict between the state's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal." Id. (citation omitted).
Defendant raised his Knoll motion during his pre-trial hearing, contending he was denied his right to communicate with counsel and friends, and that this denial to have others observe him resulted in substantial prejudice.
In its order denying defendant's motion to dismiss pursuant to Knoll, the trial court made the following findings of fact:
1. Officer Davis stopped [defendant] at a checkpoint on Providence Road at approximately 11:28pm on Thursday, October 21, 2010.
2. Defendant submitted to portable breath tests and had a positive reading for alcohol.
3. Officer Davis took Defendant to [the Blood Alcohol Testing] mobile unit for [an] intoxilyzer test. Defendant signed [a] rights [form] at 11:55pm, acknowledging his right to call an attorney or witness.
4. Defendant blew 0.09 on Intox EC/IR-II.
5. Defendant did not at any time call a witness or ask for a witness.
6. Defendant did call his wife . . . to let her know he had been arrested, [and] told her he or someone would call her later to come pick him up.
7. Officer Davis transported Defendant to [the] Mecklenburg County Jail, where he was received at approximately ...