Heard in the Court of Appeals September 8, 2014
Attorney General Roy Cooper, by Assistant Attorney General Allison A. Angell, for the State.
Amanda S. Zimmer for defendant-appellant.
McCULLOUGH, Judge. Judges ERVIN and BELL concur.
Appeal by defendant from judgment entered 14 November 2013 by Judge Quentin T. Sumner in Nash County Superior Court,
No. 12 CRS 54771.
William McKinley Ricks (" defendant" ) appeals from judgment entered upon his conviction for habitual impaired driving. For the following reasons, we reverse.
Defendant was arrested on 24 September 2012 and later indicted by a Nash County Grand Jury on 3 December 2012 on a charge of habitual impaired driving. On 13 November 2013, the case was called for jury trial in Nash County Superior Court, the Honorable Quentin T. Sumner, Judge presiding.
The State's evidence at trial tended to show the following: At approximately 7:30 p.m. on 24 September 2012, T. D. White, a former patrol officer with the City of Rocky Mount Police Department, responded to a call from dispatch reporting a moped accident in the area of South Church Street and Bassett Street. White described the area as a vacant lot at the intersection of South Church Street and Bassett Street surrounded by businesses on both sides. White testified it appeared there had been a building on the lot at some point, but all that remained was a driveway cutting directly across the lot from South Church Street to Bassett Street. White referred to the driveway as a cut through and testified to having seen people walk and ride bicycles across it. White recalled that the driveway appeared to have been paved at one time, but was now dirt. White explained that the foot and bicycle traffic kept the area mowed down. There were no fences or barriers preventing access to the lot or cut through. White testified the cut through was wide enough to drive a motor vehicle through, explaining that he pulled his patrol car into the cut through when dealing with defendant. White also testified that he had seen cars use the cut through to turn around. Yet, it was mostly used for foot and bicycle traffic. White never found out who owned the lot.
The fire department was already on the scene when White arrived. White recalled that the fire truck had pulled up on the sidewalk and was parked on the edge of the vacant lot and the firemen were gathered around a man on a moped in the vacant lot. As White approached, a fireman informed White that the man on the moped, later identified as defendant, had laid the moped down in the lot but appeared uninjured. The fireman added that he believed defendant might be impaired.
When White first encountered defendant, defendant was already back on the moped with the engine running. White asked defendant to turn the moped off and to step off of the vehicle. Defendant complied, but struggled and stumbled as he dismounted the moped. White then asked defendant to take his helmet off. Upon the removal of defendant's helmet, White immediately detected a strong odor of alcohol on defendant's breath. White then asked defendant to produce his I.D. Defendant again complied, but fumbled through his wallet for approximately 30 to 45 seconds to retrieve an I.D. that White could clearly see in the wallet. During their ensuing conversation, defendant informed White that he had consumed one drink earlier in the day around noon. White, however, was suspicious about the accuracy of this statement since he noticed defendant's speech was slurred and the odor of alcohol was still present on defendant's breath.
White informed defendant that he suspected that defendant was impaired and asked defendant to submit to field sobriety tests. Defendant complied, but did not perform the tests to the satisfaction of White. As a result of defendant's slurred speech, the odor of alcohol, and defendant's poor performance on the field sobriety tests, White formed the opinion that defendant was appreciably impaired by alcohol and arrested defendant for suspicion of DWI. As White took defendant into custody, defendant argued that he was on private property.
Defendant was transported to the police department where Officer David ...