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State v. Romano

Court of Appeals of North Carolina

November 19, 2019


          Heard in the Court of Appeals 4 September 2019.

          Appeal by defendant from judgment entered 4 June 2018 by Judge Gary M. Gavenus in Buncombe County Superior Court Nos. 14CRS80463-64.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

          Meghan Adelle Jones for defendant-appellant.

          BERGER, JUDGE

         On April 19, 2016, this Court affirmed the trial court's pre-trial order granting Joseph Mario Romano's ("Defendant's") motion to suppress a State Bureau of Investigation ("SBI") test result. State v. Romano, 247 N.C.App. 212, 785 S.E.2d 168 (2016) ("Romano I"). Both parties subsequently sought review of Romano I to our Supreme Court, which "modified and affirmed," and remanded to our Court for "further remand to the trial court for additional proceedings." State v. Romano, 369 N.C. 678, 695, 800 S.E.2d 644, 655 (2017) ("Romano II").

         This case is now before us for a second time to determine whether the trial court, upon remand from the State's interlocutory appeal, should have granted Defendant's motion to dismiss because the evidence the State deemed "essential to the case," the SBI test result, was ordered suppressed. Defendant also argues, in the alternative, that his supplemental motion to suppress medical records should have been granted because the original motion to suppress encompassed all records related to the blood draw on the day in question. We find no error.

         Factual and Procedural Background

         The factual history of this case has been discussed in Romano I and Romano II. We adopt and include the pertinent factual history from Romano II, discuss the procedural history of Romano I and II, and include additional procedural history as needed to understand the legal issues herein.

The record shows that defendant stopped his vehicle at a congested intersection in the middle of the day, left the vehicle while wearing his sweater backwards, and proceeded to stumble across four lanes of traffic. Defendant had a bottle of rum in his possession, and had vomited on himself and in his vehicle before exiting the SUV. When police arrived, defendant was incoherent with slurred speech; his eyes were bloodshot; he smelled strongly of alcohol; and he could not stand or sit without assistance.
. . . .
Defendant was arrested for driving while impaired (DWI), and, due to his extreme level of intoxication, defendant was transported to a hospital for medical treatment. Officer Bryson requested the assistance of Sergeant Ann Fowler, a Drug Recognition Expert.
Defendant was belligerent and combative throughout his encounters with law enforcement and medical personnel. At the hospital, medical staff and law enforcement attempted to restrain defendant. Medical personnel determined it was necessary to medicate defendant to calm him down. Sergeant Fowler told the treating nurse "that she would likely need a blood draw for law enforcement purposes." Before defendant was medicated, Sergeant Fowler did not "advise[ ] [him] of his chemical analysis rights," "request[ ] that he submit[ ] to a blood draw," or obtain a warrant for a blood search. After defendant was medically subdued, the treating nurse drew blood for medical treatment purposes; however, the nurse drew more blood than was needed for treatment purposes and offered the additional blood for law enforcement use. Before accepting the blood sample, Sergeant Fowler attempted to get defendant's consent to the blood draw or receipt of the evidence, but she was unable to wake him. . . .
Sergeant Fowler did not attempt to obtain a warrant for defendant's blood nor did she believe any exigency existed. Instead, she "expressly relied upon the statutory authorization set forth in [ N.C. G.S. § ] 20-16.2(b)," which allows the taking and testing of blood from a person who has committed a DWI if the person is "unconscious or otherwise in a condition that makes the person incapable of refusal." After taking possession of defendant's blood, Sergeant Fowler "drove to the Buncombe County Magistrate's Office and swore out warrants for the present charges," and then returned to the hospital and served the warrants on defendant.

Romano II, 369 N.C. at 681, 693, 800 S.E.2d at 646-47, 654.

         On January 26, 2015, Defendant filed a pre-trial motion to suppress "any analysis or the report thereof" resulting from the warrantless blood draw. On February 3, 2015, the State filed a motion for Defendant's medical records related to treatment received on February 17, 2014, which the trial court granted. After a hearing on Defendant's motion to suppress, the trial court filed an order suppressing "[t]he blood seized by [Sergeant] Fowler and any subsequent test results performed on the same by the SBI Crime Laboratory."

         The State appealed the order and certified to this Court that the suppressed evidence was essential to the prosecution of the case. On April 19, 2016, our Court affirmed the trial court's order suppressing the evidence. Romano I, 247 N.C.App. at 212, 785 S.E.2d at 168. Both parties then petitioned our Supreme Court for discretionary review and our Supreme Court in Romano II ultimately "modified and affirmed" the decision of this Court, and remanded to our Court for "further remand to the trial court for additional proceedings." Romano II, 369 N.C. at 695, 800 S.E.2d at 655. Our Supreme Court held "that N.C. G.S. § 20-16.2(b) is unconstitutional under the Fourth Amendment as applied to defendant in this case," and as a result, the trial court correctly suppressed the SBI test result. Id. at 695, 800 S.E.2d at 655.

         Prior to the decision in Romano II, on April 25, 2016, the State filed a second motion for medical records stating that the hospital's first production of medical records pursuant to the February 2015 order was for a date unrelated to the charged offense. Eventually, the proper medical records were produced. The State then proceeded to try the case for habitual impaired driving and driving while license revoked after impaired driving without reliance on the suppressed SBI blood test.

         Defendant filed a pre-trial motion to dismiss the charges on January 29, 2018. Defendant also filed a supplemental motion to suppress medical records and 911 calls (the "supplemental motion to suppress")[1] on February 6, 2018. At trial, the court denied Defendant's motion to dismiss, stating that "[o]bviously the ruling by the Supreme Court is binding on the [S]tate as to the evidence that was dealt with by the Court, but that does not prevent the [S]tate from proceeding to trial absent that evidence." The court also denied the supplemental motion to suppress.

         Defendant's medical records, which included the results of a blood alcohol test performed by the hospital, were admitted into evidence at trial. The State tendered Paul Glover ("Glover") as an expert in blood alcohol testing. Glover testified about the instrumentation and methodology used by the treating hospital in testing Defendant's blood sample. After explaining how the hospital determined Defendant's alcohol concentration in milligrams per deciliter, Glover explained the method and formula used in converting it to grams per 100 milliliters of whole blood. Based on this formula, Glover testified Defendant had a blood alcohol level of .33 grams per 100 milliliters of whole blood.

         Defendant was found guilty of habitual impaired driving and driving while license revoked following impaired driving revocation. The trial court sentenced Defendant to fifteen to twenty-seven months imprisonment, and he was ordered to pay a $2, 500.00 fine. Defendant appeals.


         I. Motion to Dismiss

         Defendant first argues the trial court erred when it denied his motion to dismiss because this Court and our Supreme Court determined that the trial court properly suppressed the SBI test result conducted by law enforcement. Specifically, Defendant contends the State should not have been able to try the case against Defendant upon remand because the SBI test ...

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