Heard in the Court of Appeals September 11, 2014
Attorney General Roy Cooper by Assistant Attorney General Joseph L. Hyde for the State.
Wait Law, P.L.L.C., by John L. Wait, for defendant-appellant.
STEELMAN, Judge. Judges GEER and DIETZ concur.
Appeal by defendant from judgment entered 9
September 2013 by Judge James U. Downs in Buncombe County Superior Court, No. 11 CRS 63608
The law enforcement officer's stop of defendant was justified by reasonable suspicion. Where the officer obtained a blood sample from defendant pursuant to a warrant, after defendant refused to submit to a breath test of his blood alcohol level, the results were admissible under N.C. Gen. Stat. § 20-139.1(a). The procedures for obtaining the blood sample did not have to comply with the requirements of N.C. Gen. Stat. § 20-16.2, and defendant did not have a right to have a witness present. Because defendant pled guilty, he did not have a right to appeal the denial of his motions to dismiss the charges.
I. Factual and Procedural Background
Just before midnight on 22 November 2011, Deputy Dean Hannah was on patrol in Buncombe County, North Carolina, and saw Matthew Shepley (defendant) driving his moped on Smokey Park Highway. Defendant was wearing a bicycle helmet instead of a DOT approved helmet, and his moped did not have a taillight. After observing the helmet and the absence of a taillight, Officer Hannah illuminated his blue lights to initiate a traffic stop. Defendant initially sped up but stopped after traveling about 220 yards. When Officer Hannah approached defendant, he " immediately smelled a strong odor of alcoholic beverage on his breath."
Based on his observations during the stop, Officer Hannah arrested defendant for driving while impaired and failing to wear a DOT approved helmet, and took him to the Buncombe County Detention Center. Defendant requested that a witness be present to observe the breath testing procedures. When the witness arrived, defendant refused to give a breath sample. The law enforcement officer escorted the witness out of the room, obtained a search warrant, and a blood sample was drawn from defendant outside the presence of the witness. The blood sample was sent to the State Bureau of Investigation
where, after a substantial delay, it was determined that defendant had a .14 blood alcohol level.
On 14 May 2013 defendant was convicted in district court of driving while impaired and appealed to superior court. On 6 June 2013, defendant filed a motion to suppress the evidence against him, asserting that Deputy Hannah's stop of defendant violated his rights under the 4th Amendment because the stop was not supported by reasonable suspicion of criminal activity. Defendant also filed a motion to dismiss the charge based upon an alleged deprivation of his U.S. constitutional right to a speedy trial. On 8 July 2013 defendant filed a motion to suppress the results of the blood test and dismiss the charge against him because his witness had not been allowed to observe the drawing of his blood pursuant to the search warrant. The trial court denied defendant's motions in orders entered 12 July 2013. On 5 August 2013 defendant filed a motion asking the trial court to reconsider its ruling on the issue of whether Deputy Hannah's stop of defendant was supported by reasonable suspicion. The motion was based upon the assertion that at the original hearing on defendant's suppression motion Deputy Hannah testified that he had taken defendant's helmet into evidence, ...