Opinion
No. COA10-1173
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgment entered 27 May 2010 by Judge Lucy Inman in Person County Superior Court. Heard in the Court of Appeals 30 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Ryan McKaig, for defendant-appellant.
Person County No. 09 CRS 51635.
Where defendant failed to file a motion to suppress prior to trial, his appeal must be dismissed.
I. Factual and Procedural Background
On 31 July 2009, Roxboro Police Officers Darrell Mills (Officer Mills) and Angela Clay (Officer Clay) received a call regarding a domestic disturbance on Depot Street. When the officers arrived, they observed that defendant had glassy and blood-shot eyes, a strong odor of alcohol about his person, and slurred speech. Based upon these observations, the officers believed defendant was intoxicated. The officers remained at the residence for approximately five minutes until the domestic situation settled down. As the officers left, Officer Clay warned defendant not to get into a vehicle and drive.
About five or six minutes later, the officers received a dispatch that defendant was driving a blue Chevrolet Nova and that he was intoxicated. The officers returned to Depot Street where they observed defendant driving a blue Nova from the street into the driveway of a residence. They observed defendant exit the vehicle. Officer Mills again noticed the smell of alcohol, and defendant's slurred speech. The officers asked defendant to submit to an Alco-Sensor test as well as field sobriety tests. Defendant refused. Officer Mills arrested defendant for driving while impaired and took him to jail to administer an intoxilyzer test.
Officer Clay advised defendant of his intoxilyzer rights at 10:53 p.m. Defendant exercised his right to make a telephone call at 10:55 p.m. Officers Clay and Mills waited thirty minutes, but no witness arrived to observe the test. Officer Clay administered an intoxilyzer test at 11:33 p.m. The results showed defendant had a blood alcohol concentration of 0.12.
Defendant was tried in superior court on 25 May 2010 and was found guilty by the jury. The trial court determined that defendant was a level three for sentencing purposes and imposed a sentence of six months imprisonment, which was suspended and defendant was placed on supervised probation for fourteen months.
Defendant appeals.
II. Denial of Defendant's Motion to Suppress
In his only argument, defendant contends that the trial court erred in denying his motion to suppress the results of the intoxilyzer test. We disagree.
A. Standard of Review
"On a motion to suppress evidence, the trial court's findings of fact are conclusive on appeal if supported by competent evidence." State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005) (citation omitted), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). Findings of fact not specifically assigned as error are "deemed supported by competent evidence and are binding on appeal." State v. Sutton, 167 N.C. App. 242, 245, 605 S.E.2d 483, 485 (2004) (citation omitted), disc. review denied, 359 N.C. 326, 611 S.E.2d 847 (2005). If the trial court's conclusions of law are supported by the findings of fact, they are conclusive on this Court. State v. Tuttle, 33 N.C. App. 465, 468, 235 S.E.2d 412, 414 (1977).
B. Timing of Motion to Suppress
In general, motions to suppress must be made prior to trial. N.C. Gen. Stat. § 15A-975(a) (2009). A motion to suppress evidence may only be made during trial if the defendant
demonstrates that he did not have a reasonable opportunity to make the motion before trial; or that the State did not give him sufficient advance notice (twenty working days) of its intention to use certain types of evidence; or that additional facts have been discovered after a pretrial determination and denial of the motion which could not have been discovered with reasonable diligence before determination of the motion.
State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980) (citing N.C. Gen. Stat. § 15A-975), disapproved in part on other grounds by State v. Roper, 328 N.C. 337, 361 n. 1, 402 S.E.2d 600, 614 n. 1 (1991).
In the instant case, defendant failed to file a pretrial motion to suppress. At trial, defense counsel objected when the State sought to introduce the intoxilyzer results during the testimony of Officer Clay. The basis of the objection was that defendant had a right to have a witness present, and no witness was present when the test was administered. The trial court conducted a voir dire hearing. At the conclusion of the voir dire hearing, the trial court held that the objection should have been made prior to trial pursuant to N.C. Gen. Stat. § 15A-975 and was therefore untimely. The trial court went on to hold that even if the motion had been timely made, it would have been denied.
We hold that this ruling was correct. The basis of defendant's objection was that he was entitled to have a witness present during the intoxilyzer test pursuant to N.C. Gen. Stat. § 20-16.2(a)(6), and the holdings in State v. Hatley, 190 N.C. App. 639, 661 S.E.2d 42 (2008) and State v. Myers, 118 N.C. App. 452, 455 S.E.2d 492, disc. review denied, 340 N.C. 362, 458 S.E.2d 195 (1995). On appeal, defendant makes no argument that this ruling was incorrect, or that his case falls under on one of the exceptions contained in N.C. Gen. Stat. § 15A-975. Defendant's appeal is dismissed.
C. Merits of Suppression Motion
Even assuming arguendo the motion to suppress had been timely made, the trial court correctly determined that the motion should be denied.
Under the provisions of N.C. Gen. Stat. § 20-16.2(a)(6) (2009), an accused has the right to call an attorney and a witness, and to have the test delayed for thirty minutes to allow the attorney or witness time to travel to the site of the test. The trial court made the following findings of fact: (1) on 31 July 2009, defendant was advised of his rights, including his right to call a witness; (2) defendant exercised his right by making a phone call at 10:55 p.m.; (3) no evidence was presented that defendant actually reached anyone, nor did he inform the officers that he had reached anyone or that someone was coming to witness the test; (4) a law enforcement officer is routinely posted at the public entrance to the law enforcement center so that if someone had arrived for defendant, the posted officer would have contacted Officer Clay to report the arrival of the witness; (5) a sign is posted in the lobby at the public entrance which informs people arriving to witness an intoxilyzer test to follow certain procedures, including to notify the posted officer and to take an elevator to the jail, where the intoxilyzer tests are performed; (6) the officers waited more than 30 minutes after advising defendant of his rights before administering the test; and (7) no evidence was presented that anyone agreed to come to the center to witness defendant's test or that anyone actually arrived to be a witness. The trial court further found that evidence that defendant's father came to the jail to pick up defendant was not helpful because defendant was released two days later.
We hold that the trial court's findings of fact are supported by the evidence, that the findings support the trial court's conclusions that the State did not violate the requirements of N.C. Gen. Stat. § 20-16.2, and that these conclusions support the ruling of the trial court. This argument is without merit.
DISMISSED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).