in the Court of Appeals 4 September 2019.
by defendant from judgment entered 4 June 2018 by Judge Gary
M. Gavenus in Buncombe County Superior Court Nos.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
Adelle Jones for defendant-appellant.
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)
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.
and Procedural Background
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
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."
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.
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.
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") 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
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
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.
Motion to Dismiss
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