State v. Shepley ( 2014 )

NO. COA14-390
NORTH CAROLINA COURT OF APPEALS
Filed: 4 November 2014
STATE OF NORTH CAROLINA
v. Buncombe County
No. 11 CRS 63608
MATTHEW SMITH SHEPLEY
Appeal by defendant from judgment entered 9 September 2013
by Judge James U. Downs in Buncombe County Superior Court. Heard
in the Court of Appeals 11 September 2014.
Attorney General Roy Cooper by Assistant Attorney General
Joseph L. Hyde for the State.
Wait Law, P.L.L.C., by John L. Wait, for defendant-
appellant.
STEELMAN, Judge.
The law enforcement officer’s stop of defendant was
justified by reasonable suspicion. Where the officer obtained a
blood sample from defendant pursuant to a warrant, after
defendant refused to submit to a breath test of his blood
alcohol level, the results were admissible under N.C. Gen. Stat.
§ 20-139.1(a). The procedures for obtaining the blood sample did
not have to comply with the requirements of N.C. Gen. Stat. §
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20-16.2, and defendant did not have a right to have a witness
present. Because defendant pled guilty, he did not have a right
to appeal the denial of his motions to dismiss the charges.
I. Factual and Procedural Background
Just before midnight on 22 November 2011, Deputy Dean
Hannah was on patrol in Buncombe County, North Carolina, and saw
Matthew Shepley (defendant) driving his moped on Smokey Park
Highway. Defendant was wearing a bicycle helmet instead of a DOT
approved helmet, and his moped did not have a taillight. After
observing the helmet and the absence of a taillight, Officer
Hannah illuminated his blue lights to initiate a traffic stop.
Defendant initially sped up but stopped after traveling about
220 yards. When Officer Hannah approached defendant, he
“immediately smelled a strong odor of alcoholic beverage on his
breath.”
Based on his observations during the stop, Officer Hannah
arrested defendant for driving while impaired and failing to
wear a DOT approved helmet, and took him to the Buncombe County
Detention Center. Defendant requested that a witness be present
to observe the breath testing procedures. When the witness
arrived, defendant refused to give a breath sample. The law
enforcement officer escorted the witness out of the room,
obtained a search warrant, and a blood sample was drawn from
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defendant outside the presence of the witness. The blood sample
was sent to the State Bureau of Investigation where, after a
substantial delay, it was determined that defendant had a .14
blood alcohol level.
On 14 May 2013 defendant was convicted in district court of
driving while impaired and appealed to superior court. On 6 June
2013, defendant filed a motion to suppress the evidence against
him, asserting that Deputy Hannah’s stop of defendant violated
his rights under the 4th Amendment because the stop was not
supported by reasonable suspicion of criminal activity.
Defendant also filed a motion to dismiss the charge based upon
an alleged deprivation of his U.S. constitutional right to a
speedy trial. On 8 July 2013 defendant filed a motion to
suppress the results of the blood test and dismiss the charge
against him because his witness had not been allowed to observe
the drawing of his blood pursuant to the search warrant. The
trial court denied defendant’s motions in orders entered 12 July
2013. On 5 August 2013 defendant filed a motion asking the trial
court to reconsider its ruling on the issue of whether Deputy
Hannah’s stop of defendant was supported by reasonable
suspicion. The motion was based upon the assertion that at the
original hearing on defendant’s suppression motion Deputy Hannah
testified that he had taken defendant’s helmet into evidence,
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but after the hearing Deputy Hannah determined that he had not
confiscated the helmet. Following a hearing, the trial court
orally denied defendant’s motion. After defendant’s motions were
denied, he filed written notice of his intent to appeal the
denial of his motions to suppress and dismiss.
On 9 September 2013 defendant pled guilty to driving while
impaired, and reserved his right to appeal the denial of his
suppression motions. The trial court imposed level two
punishment, sentenced defendant to a term of twelve months,
suspended the sentence, and placed him on probation for 18
months.
Defendant appeals.
II. Legal Analysis
A. Scope of Review
On appeal defendant argues that the trial court erred by
denying his suppression motion and his motions to dismiss the
charge against him. “‘In North Carolina, a defendant’s right to
appeal in a criminal proceeding is purely a creation of state
statute.’ A defendant who pleads guilty has a right of appeal
limited to the following: . . . Whether the trial court
improperly denied defendant’s motion to suppress. N.C. Gen.
Stat. §§ 15A-979(b)[(2013)], 15A-1444(e) [(2013)][.]” State v.
Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47
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(2003) (quoting State v. Pimental, 153 N.C. App. 69, 72, 568
S.E.2d 867, 869 (2002)). “Here, upon defendant’s guilty plea,
defendant has a right to appeal only the trial court’s denial of
his motion to suppress. . . . Defendant does not have a right to
appeal the trial court’s denial of his motion to dismiss[.]”
State v. Smith, 193 N.C. App. 739, 742, 668 S.E.2d 612, 614
(2008). Therefore, we do not address defendant’s arguments
pertaining to the denial of his motions to dismiss.
B. Suppression Motion
1. Right to Witness at Blood Drawing
In his first argument, defendant contends that the trial
court erred by denying his motion to suppress the results of the
blood test because he “was denied his statutory and
constitutional right to have a witness present for the blood
draw.” We disagree.
N.C. Gen. Stat. § 20-16.2 provides in relevant part that:
(a) 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. .
. . Before any type of chemical analysis is
administered the person charged shall be
taken before a chemical analyst . . . or a
law enforcement officer . . . who shall
inform the person orally and also give the
person a notice in writing that:
. . .
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(6) You may call an attorney for advice and
select a witness to view the testing
procedures remaining after the witness
arrives[.]. . .
(a1) Under this section, an “implied-
consent offense” is an offense involving
impaired driving, a violation of G.S. 20-
141.4(a2), or an alcohol-related offense[.]
. . .
. . .
(c) A law enforcement officer or chemical
analyst shall designate the type of test or
tests to be given and may request the
person charged to submit to the type of
chemical analysis designated. If the person
charged willfully refuses to submit to that
chemical analysis, none may be given under
the provisions of this section, but the
refusal does not preclude testing under
other applicable procedures of law.
“During the administration of a breathalyzer test, the
person being tested has the right to ‘call an attorney and
select a witness to view for him the testing procedures.’ This
statutory right may be waived by the defendant, but absent
waiver, denial of this right requires suppression of the results
of the breathalyzer test.” State v. Myers 118 N.C. App. 452,
454, 455 S.E.2d 492, 493 (1995) (quoting N.C. Gen. Stat. §
N.C.G.S. § 20-16.2(a)(6), and citing McDaniel v. Division of
Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989),
and State v. Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57
(1973) (other citation omitted). However, as stated above, if a
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defendant refuses to submit to the test designated by the law
enforcement officer, no blood alcohol tests “may be given under
the provisions of this section, but the refusal does not
preclude testing under other applicable procedures of law.” The
plain language of the statute limits its application to
situations in which a defendant consents to take a breathalyzer
or other test designated by the officer.
N.C. Gen. Stat. § 20-139.1(a) addresses the admissibility
of chemical analyses of blood alcohol other than those performed
pursuant to N.C. Gen. Stat. § 20-16.2, and provides in relevant
part that “[i]n any implied-consent offense under G.S. 20-16.2,
a person’s alcohol concentration . . . as shown by a chemical
analysis is admissible in evidence. This section does not limit
the introduction of other competent evidence as to a person’s
alcohol concentration or results of other tests showing the
presence of an impairing substance, including other chemical
tests.”
The relationship between N.C. Gen. Stat. § 20-16.2 and N.C.
Gen. Stat. § 20-139.1 has been addressed in several cases. In
State v. Drdak, 101 N.C. App. 659, 400 S.E.2d 773 (1991), the
defendant was injured in a motor vehicle accident and taken to
the hospital, where his blood was tested for alcohol without
first informing him of his right to consent or refuse the blood
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test or of his rights under N.C. Gen. Stat. § 20-16.2. On appeal
we held that the results of the blood test were inadmissible,
because the blood test was not performed in accordance with N.C.
Gen. Stat. § 20-16.2. The North Carolina Supreme Court reversed:
The Court of Appeals held that the trial
judge erred in denying defendant’s motion
to suppress because the blood test was not
performed according to the procedure
authorized under N.C.G.S. §§ 20-16.2 and
20-139.1. This contention of the defendant
flies squarely in the face of the plain
reading of the statute, N.C.G.S. § 20-
139.1(a), which states: “This section does
not limit the introduction of other
competent evidence as to a defendant’s
alcohol concentration, including other
chemical tests.” This statute allows other
competent evidence of a defendant’s blood
alcohol level in addition to that obtained
from chemical analysis pursuant to N.C.G.S.
§§ 20-16.2 and 20-139.1. . . . [I]t is the
holding of this Court that the obtaining of
the blood alcohol test results in this case
was not controlled by N.C.G.S. § 20-16.2(a)
and did not have to comply with that
statute because the test in question is
“other competent evidence” as allowed by
N.C.G.S. § 20-139.1.
State v. Drdak, 330 N.C. 587, 592-93, 411 S.E.2d 604, 607-08
(1992) (emphasis added). We hold that the argument advanced by
defendant in the instant case has been rejected by our Supreme
Court. Similarly, in State v. Davis, 142 N.C. App. 81, 542
S.E.2d 236 (2001), after the defendant refused to consent to a
breath test of his blood alcohol level, the law enforcement
officer obtained a search warrant and took urine and blood
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samples from the defendant. On appeal, we upheld the admission
of the results of these tests, citing Drdak:
Here the defendant was given the
opportunity to voluntarily submit to the
testing. He refused, and the officer
obtained a search warrant based on probable
cause. We hold that testing pursuant to a
search warrant is a type of “other
competent evidence” referred to in N.C.G.S.
§ 20-139.1. In a similar case our Supreme
Court . . . [held that] “it is not
necessary for the admission of such ‘other
competent evidence’ that it be obtained in
accordance with N.C.G.S. § 20-16.2.”
Davis, 142 N.C. App. at 86, 542 S.E.2d at 239 (quoting Drdak).
Based on the language of N.C. Gen. Stat. § § 20-16.2 and 20-
139.1, as well as the Drdak and Davis opinions, we conclude that
after defendant refused a breath test of his blood alcohol
level, he was not entitled to have a witness present at the
blood test performed pursuant to a search warrant.
In arguing for a contrary result, defendant asserts that
Davis is not controlling precedent because, although it held
that evidence introduced under N.C. Gen. Stat. § 20-139.1(a) did
not have to comply with the strictures of N.C. Gen. Stat. § 20-
16.2, it did not enumerate the specific provisions of the
statute. We disagree, given that its quote from Drdak, stating
that when evidence is admitted under N.C. Gen. Stat. § 20-
139.1(a) “‘it is not necessary for the admission of such ‘other
competent evidence’ that it be obtained in accordance with
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N.C.G.S. § 20-16.2’” would necessarily include the right to have
a witness present. Moreover, defendant does not acknowledge
Drdak, in which our Supreme Court expressly held that the
provisions of N.C. Gen. Stat. § 20-16.2 need not be followed if
evidence of a defendant’s blood alcohol is admitted under N.C.
Gen. Stat. § 20-139.1(a) as “other competent evidence.” We hold
that, because defendant’s blood was drawn pursuant to a search
warrant obtained after he refused a breath test of his blood
alcohol level, he did not have a right under N.C. Gen. Stat. §
20-16.2 to have a witness present.
2. Constitutionality of Stop of Defendant
In his second argument, defendant contends that the trial
court erred by denying his motion to suppress because Deputy
Hannah “did not have legal grounds to initiate” a traffic stop
of defendant. We do not agree.
“The Fourth Amendment protects individuals ‘against
unreasonable searches and seizures.’ U.S. Const. amend. IV.
Traffic stops are permitted under the Fourth Amendment if the
officer has ‘reasonable suspicion’ to believe that a traffic law
has been broken.’” State v. Hopper, 205 N.C. App. 175, 177, 695
S.E.2d 801, 803 (2010) (quoting State v. Styles, 362 N.C. 412,
415, 665 S.E.2d 438, 440 (2008) (internal quotation omitted).
Reasonable suspicion exists if “[t]he stop . . . [is] based on
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specific and articulable facts, as well as the rational
inferences from those facts, as viewed through the eyes of a
reasonable, cautious officer, guided by [the officer’s]
experience and training.” State v. Watkins, 337 N.C. 437, 441,
446 S.E.2d 67, 70 (1994) (citation omitted). Reasonable
suspicion requires a “minimal level of objective justification,
something more than an ‘unparticularized suspicion or hunch[.]’”
State v. Steen, 352 N.C. 227, 239, 536 S.E.2d 1, 8 (2000)
(quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct.
1581, 104 L. Ed. 2d 1, 10 (1989).
N.C. Gen. Stat. § 20-140.4(a)(2) provides in relevant part
that “[n]o person shall operate a . . . moped upon a highway . .
. [u]nless the operator and all passengers thereon wear on their
heads, with a retention strap properly secured, safety helmets
of a type that [comply] with Federal Motor Vehicle Safety
Standard (FMVSS) 218.” Violation of this statute is an
infraction. N.C. Gen. Stat. § 20-140.4(c). Deputy Hannah
testified that he observed defendant operating his moped without
wearing a proper helmet. This observation clearly provided the
officer with a reasonable suspicion that defendant had committed
an infraction. Under N.C. Gen. Stat. § 15A-1113(b), a “law
enforcement officer who has probable cause to believe a person
has committed an infraction may detain the person for a
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reasonable period in order to issue and serve him a citation.”
Deputy Hannah’s stop of defendant was supported by reasonable
suspicion, and the trial court did not err by denying
defendant’s motion to suppress evidence.
Defendant concedes that Deputy Hannah testified to seeing
defendant operating his moped with an improper helmet, but
argues that because the officer could not confirm “whether or
not the helmet was DOT approved until after he approached”
defendant, the officer’s belief that defendant’s helmet was
improper “cannot support reasonable suspicion[.]” However, our
Supreme Court has held that “reasonable suspicion is the
necessary standard for traffic stops, regardless of whether the
traffic violation was readily observed or merely suspected.”
Styles, 362 N.C. at 415, 665 S.E.2d at 440. As a result, we are
not persuaded by defendant’s argument.
For the reasons discussed above, we conclude that the trial
court did not err in denying defendant’s motion to suppress and
that its order should be
AFFIRMED.
Judges GEER and DIETZ concur.