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State v. Parisi

Court of Appeals of North Carolina

February 7, 2017

STATE OF NORTH CAROLINA
v.
JEFFREY ROBERT PARISI

          Heard in the Court of Appeals 9 January 2017

         Appeal 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.

          TYSON, Judge.

         The 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 remand.

         I. Factual Background

         On 1 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 silent.

         Officer 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.

         Officer 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.

         Officer 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.

         On the 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.

         Based 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 detain.

         On 17 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.

         Before 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."

         The 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."

         Aside 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 ...


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