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State v. Chavez

Court of Appeals of North Carolina

December 2, 2014

STATE OF NORTH CAROLINA
v.
MARGARITO CHAVEZ, Defendant

Heard in the Court of Appeals 26 August 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Appeal by defendant from judgment entered on or about 11 October 2013 by Judge Paul G. Gessner in Superior Court, Wake County.

Wake County. No. 10CRS228769.

NO ERROR.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Angel E. Gray, for the State.

Katy Strait Chavez, for defendant-appellant.

STROUD, Judge. Chief Judge MCGEE and Judge BRYANT concur.

OPINION

STROUD, Judge.

Defendant appeals judgment for impaired driving arguing his motion to suppress evidence from his blood draw should have been allowed. For the following reasons, we find no error.

I. Background

The facts of this case are not in dispute: On 5 December 2010, defendant was involved in a two car automobile accident and was cited for " failing to yield the right of way in obedience to a duly erected flashing red light" and driving " [w]hile subject to an impairing substance." Defendant called his wife, an attorney, at 2:46 a.m.; she was in Florida at the time. Officer A.D. Johnson arrived at the accident scene and after conducting an investigation arrested defendant. At 3:10 a.m., the passenger in defendant's vehicle called defendant's wife to let her know he had been arrested. Defendant's wife began calling various people in Wake County, seeking a witness for defendant. At 3:20 a.m., defendant was informed of his rights and refused to take a breathalyzer test; he asked to call his wife and attorney. Defendant called his wife at 3:20 a.m. At 4:02 a.m., defendant's wife spoke with Ms. Rebecca Moriello, also an attorney, and asked her to observe " the blow and the -- everything." At 4:03 and 4:04 a.m., defendant refused to submit to a breathalyzer test. At 4:14 a.m., a warrant was issued for defendant's blood to be drawn. Ms. Moriello arrived at the jail around 4:20 a.m., and she was informed that she was too late to witness the breathalyzer test. By 4:22 a.m., Ms. Moriello had called defendant's wife to inform her that she was too late to witness the testing procedures. Defendant's blood was drawn at 4:34 a.m. Defendant was ultimately released at 6:19 a.m.

On or about 28 June 2012, defendant filed various motions ultimately requesting that the trial court " dismiss the charge against him [or] . . . [i]n the alternative, . . . that any and all evidence beyond the arrest of the Defendant be suppressed[.]" Defendant's motions were based upon (1) violation of defendant's Sixth Amendment right because Ms. " Morielo was not allowed to see the Defendant while he was confined in the Wake County Jail[,]" (2) a Ferguson violation because Ms. " Morielo was not allowed to view the testing procedures under N.C.G.S. § 20-16.2[,]" (3) a Knoll violation because " his release from detention was unreasonably ...


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