Opinion
NO. COA12-773
12-18-2012
STATE OF NORTH CAROLINA v. TRACEY NATHANIEL DEBRUHL
Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State. Levine & Stewart, by James E. Tanner III, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Buncombe County
Nos. 10 CRS 10428, 61555
Appeal by Defendant from judgment entered 12 January 2012 by Judge Richard L. Doughton in Buncombe County Superior Court. Heard in the Court of Appeals 15 November 2012.
Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State.
Levine & Stewart, by James E. Tanner III, for Defendant.
, Judge.
Procedural History and Evidence
This appeal arises from a driving while impaired ("DWI") conviction. On 28 September 2010, Defendant Tracey Nathaniel DeBruhl was charged with driving while impaired, driving with an expired registration, and failing to comply with a license restriction. After being convicted in district court, Defendant appealed to superior court. On 12 January 2012, a jury found Defendant guilty of all charges. From the judgments entered upon these convictions, Defendant appeals.
The evidence at trial tended to show the following: On the evening of 27 September 2010, Defendant visited several bars, drinking at least four beers and a shot of liquor. He left the last bar after 1:45 a.m. and drove along Tunnel Road. Just after driving through the tunnel for which that road is named, Defendant passed two police cars that had pulled over another driver. As Defendant passed the traffic stop, he saw one of the police cars pull out and follow his vehicle. Defendant was pulled over in a nearby parking lot.
Officer Michael Allen of the Asheville Police Department ("APD") testified that, while assisting another officer with a traffic stop in the early morning hours of 28 September 2010, he heard a vehicle approaching from the direction of the tunnel at a high rate of speed. Allen got into his patrol car and followed Defendant's car when it passed. After noting that Defendant's license plate had an expired registration sticker, Allen initiated a traffic stop.
Allen approached the car, asked Defendant for his driver's license and car registration, and informed Defendant that he had been stopped because of the expired registration sticker. Defendant acknowledged that he was aware the plate registration had expired. Allen testified that, during this exchange, he detected an odor of alcohol and noted that Defendant's eyes were red and glassy. Allen also observed that Defendant's driver's license showed a restriction code that prohibited him from driving with a blood alcohol level greater than 0.04. Allen asked Defendant whether he had been drinking alcohol. Defendant admitted drinking beer during the evening and agreed to roadside sobriety testing. Allen performed a horizontal gaze nystagmus test on Defendant and noted that, while Defendant's pupils were normal and he was able to follow Allen's finger, Defendant's eyes showed "jerking," a sign of possible impairment. On the walk and turn test, Defendant used his arms for balance, missed a heel-to-toe step, and executed a military-style "about-face" turn rather than the turn Allen had demonstrated for Defendant. On the one-leg stand test, Defendant used his arms for balance and also put his right leg down before being told to do so. Allen testified that the results of these tests led him to believe that Defendant was impaired.
Allen next tested Defendant using a roadside alcohol screening device. Defendant tested positive on two such tests, conducted about ten minutes apart. Allen then arrested Defendant and drove him to jail. After being processed by a magistrate, Defendant was taken to speak with Officer Robert Bingaman of the APD, a chemical analyst. After Bingaman read Defendant his rights regarding chemical analysis, Defendant signed a form stating that he understood those rights and that he had chosen not to "call an attorney and/or witness[.]" Bingaman then performed a chemical analysis of Defendant's breath sample, which showed a blood alcohol level of 0.11. What occurred next was disputed at trial. Allen testified that, upon realizing that the chemical analysis showed a blood alcohol level of 0.11, Defendant asked to call an attorney. Bingaman did not mention any request for an attorney and testified that Defendant simply refused to provide a second breath sample which Bingaman noted on Defendant's chemical analysis testing slip. Defendant testified that, after giving one breath sample, he asked twice to speak to an attorney, but never refused to give a second breath sample. The uncontradicted evidence was that Defendant never called an attorney and never provided a second breath sample for analysis. At trial, the result of the chemical analysis of the single breath sample was admitted without objection, as was Bingaman's testimony about the result.
A jury found Defendant guilty of driving while impaired, driving with expired registration, and operating a motor vehicle in violation of a limitation of his driver's license. The trial court sentenced Defendant to a 30-day active sentence and five years of supervised probation, along with other special conditions of probation. Defendant appeals.
Discussion
On appeal, Defendant makes two arguments: that the trial court (1) committed plain error by admitting evidence of the chemical analysis of a single breath sample and of Defendant's alleged refusal to submit a second breath sample, and (2) erred in imposing 60 months of supervised probation. We find no error as to Defendant's trial, but remand for resentencing.
Evidentiary Issues
Defendant first argues that the trial court committed plain error by admitting (1) the chemical analysis of a single breath sample when sequential samples were not analyzed as required by statute, and (2) evidence of Defendant's alleged refusal to submit a second breath sample. We dismiss the first portion of Defendant's argument and overrule the second.
Defendant acknowledges that he did not object to any of the challenged evidence at trial. Thus, we review the admission of the evidence only for plain error. State v. Lawrence, __ N.C. __, __, 723 S.E.2d 326, 333 (2012).
The plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.Id. (alteration and emphasis in original) (citations, quotation marks, and brackets omitted).
This Court and the United States Supreme Court have emphasized that plain error review should be used sparingly, only in exceptional circumstances, to reverse criminal convictions on the basis of unpreserved error.
Defendant was charged and convicted of driving while impaired. N.C. Gen. Stat. § 20-138.1(a) (2011). Driving while impaired is an implied-consent offense. McDaniel v. Div. of Motor Vehicles, 96 N.C. App. 495, 496, 386 S.E.2d 73, 75 (1989), cert. denied, 326 N.C. 364, 389 S.E.2d 815 (1990). Our General Statutes provide:
Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.N.C. Gen. Stat. § 20-16.2(a) (2011).
Generally, admissibility of the result of chemical analysis under section 20-16.2 requires chemical analysis of at least two sequential breath samples:
The methods governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. The results of the chemical analysis of all breath samples are admissible if the test results from any two consecutively collected breath samples do not differ from each other by an alcohol concentration greater than 0.02. Only the lower of the two test results of the consecutively administered tests can be used to prove a particular alcohol concentration. A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under [section] 20-16.2(c).N.C. Gen. Stat. § 20-139.1(b3) (2011). However, the result of chemical analysis of a single breath sample is admissible if the person being tested refuses to give subsequent samples:
A person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample, or the result of the sample providing the lowest alcohol concentration if more than one breath sample is provided, admissible in any judicial or administrative hearing for any relevant purpose, including the establishment that a person had a particular alcohol concentration for conviction of an offense involving impaired driving.
Id.
Among the rights our General Assembly has provided to persons subject to chemical analysis under section 20-16.2 is the right to call an attorney for advice. N.C. Gen. Stat. § 20-16.2(a)(6). However, "the testing may not be delayed for th[is] purpose[] longer than 30 minutes from the time [the person is] notified of these rights. [The person] must take the test at the end of 30 minutes even if [the person] ha[s] not contacted an attorney . . . ." Id.
Here, on appeal, Defendant asserts that only 23 minutes passed between the time when Defendant was notified of his rights under section 20-16.2 and his request to call an attorney for advice. Based on this assertion, Defendant suggests that Bingaman should not have marked him as refusing to give a second breath sample, but rather should have permitted Defendant to attempt to consult an attorney. Defendant urges that he cannot have "refused" to give a second sample until 30 minutes had passed since he was informed of his rights. Thus, Defendant contends there was no "refusal" pursuant to section 20-139.1(b3), and, as a result, the single test result should not have been admitted under that section for the purpose of establishing his blood "alcohol concentration for conviction of an offense involving impaired driving." Id. In sum, on appeal, Defendant argues error in the admission of the blood alcohol test result which he contends was obtained in violation of his rights under section 20-16.2.
Defendant did not move pretrial to suppress the chemical analysis result nor did he object during trial to the admission of either the result or testimony about it. In State v. Byers, this Court considered an almost identical argument, to wit, the defendant's assertion of error in the admission of testimony about the results of a blood test which the defendant contended had not been performed in accordance with sections 20-16.2 and 20-139.1. 105 N.C. App. 377, 380, 413 S.E.2d 586, 587 (1992). We rejected as meritless the defendant's argument on the following basis:
The record . . . indicates [the] defendant failed to challenge the admissibility of the results of the blood test by a proper motion to suppress pursuant to [sections] 15A-974 and 15A-975.Id. at 380-81, 413 S.E.2d at 588. The only distinction between Byers and Defendant's case is that Byers concerned chemical analysis of a blood sample, rather than a breath sample. We conclude that this distinction is without a meaningful difference. Defendant has waived his right to assert error in the admission of his breath sample results, and accordingly, we dismiss this argument.
[Section] 15A-974 provides that "[u]pon timely motion," the trial court must suppress evidence if "[i]t is obtained as a result of a substantial violation" of the Criminal Procedure Act. [Section] 15A-975 sets forth the procedural requirements for making a motion to suppress evidence pursuant to [section] 15A-974:
(a) In superior court, the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under [certain circumstances].A defendant's failure to comply with the requirements of the statute acts as a waiver of his right to suppress evidence in violation of statutory or constitutional law. State v. Holloway, 311 N.C. 573, 319 S.E.2d 261 (1984).
. . . .
In the present case, [the] defendant failed to make a motion to suppress the results of the blood test prior to trial, and there is
nothing in the record to indicate the existence of other circumstances which would allow [the] defendant to make the motion during trial. Thus, [the] defendant's failure to move to suppress the results of the blood test prior to trial acts as a waiver of his right to suppress such evidence. Furthermore, the Supreme Court, in State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992), held that testimony concerning the results of blood tests may be admitted into evidence even though the tests were not performed in accordance with [sections] 20-16.2 and . . . 20-139.1 under the "other competent evidence" exception contained in [section] 20-139.1.
Further, we are not persuaded by Defendant's argument that admission of testimony about his alleged refusal to give a second breath sample constituted plain error. To establish plain error, a "defendant must convince [the reviewing court] not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Here, the evidence tended to show that (1) Defendant admitted consuming at least four beers and a shot of liquor in the five hours before he was stopped by Allen, (2) Allen observed Defendant's red, glassy eyes and detected an odor of alcohol when speaking to Defendant, (3) Defendant showed several signs of possible impairment on roadside sobriety tests administered by Allen, (4) Defendant twice tested positive on a roadside alcohol screening device, and (5) the result of a post-arrest chemical analysis of Defendant's breath showed his blood alcohol level to be 0.11. In addition, we note that Defendant testified he did not intend to refuse to give a second breath sample, but merely wanted to consult an attorney first. Thus, the jury was able to consider fully Defendant's alternate explanation for the absence of a second breath sample for chemical analysis. In light of this evidence of Defendant's impairment while driving, we do not believe that, but for the testimony from Bingaman that Defendant refused to provide a second breath sample, "the jury probably would have reached a different result." Id. Accordingly, Defendant has failed to establish plain error, and we overrule this argument.
Sentencing Issue
Defendant next argues that the trial court erred in imposing 60 months of supervised probation. We agree.
Section 15A-1351 provides, in pertinent part, that "[a] defendant convicted of impaired driving under [section] 20-138.1 may also be sentenced to special probation." N.C. Gen. Stat. § 15A-1351(a) (2011). "The original period of probation, including the period of imprisonment required for special probation, shall be as specified in [section] 15A-1343.2(d), but may not exceed a maximum of five years, except [under certain circumstances]." Id. In turn, "[u]nless the [trial] court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation . . . [f]or misdemeanants sentenced to intermediate punishment [shall be] not less than 12 nor more than 24 months[.]" N.C. Gen. Stat. § 15A-1343.2(d)(2) (2011). Where a trial court makes "no findings in support of its imposition of a term of probation of 60 months [a term greater than that provided for under section 15A-1343.2]. . . . [the] matter must be remanded to the trial court for resentencing on the length of the term of probation." State v. Riley, 202 N.C. App. 299, 307, 688 S.E.2d 477, 482-83 (citation omitted), cert. denied, 364 N.C. 246, 699 S.E.2d 644 (2010).
Here, the trial court imposed a term of probation greater than that provided for under section 15A-1343.2, but made no finding of fact in support thereof. The judgment reveals that a box is marked next to the pre-printed phrase "supervised probation for 60 months, the Court having received evidence and having found as a fact that supervision is necessary." (Emphasis added). However, no finding of fact appears in the judgment. Further, the transcript reveals that the only "finding" the trial court made about the period of supervised probation was: "He's to be put on supervised probation for a period of five years. The reason I'm doing five years is because I think he needs that period of supervision." This remark is not a finding of fact, but rather merely a restatement of the preprinted wording on the judgment that the court has found extended "supervision is necessary."
We remand to the trial court for resentencing on the length of the term of probation. On remand, the trial court may consider whether a term of supervised probation greater than the 24-month default under section 15A-1343.2(d)(2) is appropriate, but such a term may only be imposed if supported by findings of fact.
NO ERROR AS TO TRIAL; REMANDED FOR RESENTENCING.
Judges GEER and MCCULLOUGH concur.
Report per Rule 30(e).