in the Court of Appeals 9 January 2017
by the State from order entered 6 April 2016 by Judge Michael
D. Duncan in Wilkes County Superior Court No. 14 CRS 050858.
Attorney General Joshua H. Stein, by Assistant Attorney
General John W. Congleton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Michele A. Goldman, for defendant-appellee.
State appeals from the superior court's order affirming
the district court's final order, which granted Jeffrey
Robert Parisi's ("Defendant") motion to
suppress and dismissed the charge of driving while impaired
("DWI"). We dismiss in part, vacate in part, and
April 2014, at approximately 11:30 p.m., Wilkesboro Police
Officer Anderson was operating a checkpoint and observed
Defendant as he drove up to the checkpoint. While Officer
Anderson observed nothing illegal about Defendant's
driving, he overheard a "disturbance" between the
occupants inside the vehicle. When the vehicle approached
where Officer Anderson was standing, the occupants became
Anderson approached the driver's door and shined his
light into the vehicle to look at the occupants. At that
point, Officer Anderson observed an opened carton, or
"box, " used to carry alcohol located on the
passenger side floorboard. He did not observe any opened
individual bottles or cans of alcohol. He also noticed an
odor of alcohol coming from the vehicle.
Anderson spoke with Defendant and observed Defendant had
glassy and watery eyes. Officer Anderson asked Defendant to
pull off to the side of the road and requested Defendant to
exit the vehicle. At this point, Officer Anderson realized
the moderate smell of alcohol was coming from Defendant and
not from inside the vehicle. Defendant admitted he had
consumed three beers earlier in the evening.
Anderson testified Defendant "did not appear grossly
impaired, " but had Defendant perform three field
sobriety tests: the walk-and-turn test, the one-leg-stand
test, and the Horizontal Gaze Nystagmus ("HGN")
test. Before each test, Officer Anderson gave Defendant
instructions on how to perform the test, which Defendant was
able to follow.
walk-and-turn test, Defendant had a gap, greater than a half
an inch, between his heel and toe on two steps. Officer
Anderson testified this counted as one clue out of eight
possible clues of impairment. On the one-leg-stand test,
Defendant swayed and used his arms for balance, which Officer
Anderson counted as two out of four possible clues of
impairment. Officer Anderson also administered the HGN test
and, over Defendant's objection, was allowed to testify
as an expert on the test. Officer Anderson testified all six
clues of impairment were present on the test.
upon these tests, Officer Anderson formed an opinion that
Defendant had consumed a sufficient quantity of alcohol to
impair his mental and physical faculties. Defendant was
charged with driving while impaired. The next day, a
magistrate's order was entered finding probable cause to
June 2015, Defendant appeared in Wilkes County District Court
and made a pre-trial, oral motion to "suppress pc &
checkpoint." The district court denied the checkpoint
motion, but granted the motion to suppress. The State gave
oral notice of appeal.
the district court entered its written order, the State filed
a written notice of appeal to the superior court on 27 July
2015 to ensure that its appellate rights were preserved. The
sole basis for the State's appeal was "that there
was probable cause to arrest Defendant for the charge of
driving while impaired."
district court entered a written order on 23 September 2015.
While the written order was labeled "Preliminary Order
of Dismissal, " it only granted Defendant's motion
to suppress and did not dismiss Defendant's charge. The
State again filed a written notice of appeal to the superior
court pursuant to N.C. Gen. Stat. § 20-38.7. The State
argued "no competent evidence was presented to support
the motion to suppress."
from the district court's order being labeled as a
"dismissal, " nothing indicates the district court
actually entered a preliminary dismissal or that the State
had appealed from such a dismissal. Each of the State's
notices of appeal specifically and solely addressed
Defendant's motion to suppress. However, on appeal, the
superior court granted "Defendant's Motion to
Suppress and Motion to Dismiss" and remanded
the case to the district court for entry of a final order
"consistent with [its] Order." (emphasis supplied).
On 11 March 2016, the ...