State v. Overocker

NO. COA14-270
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 12 CRS 60313
JOSEPH OVEROCKER,
Defendant.
Appeal by the State from order entered 4 October 2013 by
Judge Carl R. Fox in Durham County Superior Court. Heard in the
Court of Appeals 28 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kathleen M. Joyce, for defendant-appellee.
GEER, Judge.
The State appeals the trial court's order granting
defendant Joseph Overocker's motion to suppress and dismissing
the charges against him based on a lack of probable cause to
arrest defendant for impaired driving and unsafe movement. We
hold that the trial court's findings of fact are supported by
the evidence and in turn support the court's conclusion of law
that the reasons relied upon by the officer for the arrest did
not provide the officer with probable cause that defendant was
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either impaired or had engaged in unsafe movement. We,
therefore, affirm the order to the extent it grants the motion
to suppress. Because, however, defendant did not make a written
or oral motion to dismiss, controlling precedent requires that
we reverse the trial court's dismissal of the charges.
Facts
On 11 October 2012, defendant arrived at about 4:00 p.m. at
a sports bar called Time Out Bar & Grill in Durham, North
Carolina. Defendant parked his Porsche Cayenne SUV directly in
front of the bar and met up with several friends, including
Claude "Chip" Teeter. While defendant was inside the bar, a
group of motorcyclists pulled into the Time Out parking lot, and
one of them parked her motorcycle behind defendant's SUV. When
defendant left the bar and started backing out of his parking
spot, he collided with the motorcycle.
Officer Everette Jefferies, an off-duty police officer with
the Durham Police Department, had ridden his motorcycle to Time
Out and noticed defendant when he first arrived. Officer
Jefferies was outside in the parking lot when defendant was
leaving, and he witnessed the collision.
Officer Mark Lalumiere, who was on duty with the Durham
Police Department, was dispatched to the scene. After talking
with defendant and Officer Jefferies, Officer Lalumiere had
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defendant perform standardized field sobriety tests ("FSTs").
Another Durham Police Department officer, Officer Marvin
Hembrick, performed two portable breath tests ("PBTs") on
defendant. Officer Lalumiere then arrested defendant for
impaired driving and unsafe movement.
On 11 April 2013, a district court judge found defendant
guilty of both charges, and defendant timely appealed to
superior court. On 11 July 2013, defendant filed a motion to
suppress, asking the superior court to suppress (1) all evidence
gathered after the stop of defendant's vehicle or the first
interview of defendant for lack of reasonable suspicion and (2)
all evidence based on a lack of probable cause to arrest
defendant. After hearing testimony from defendant, Mr. Teeter,
and Officers Jefferies, Lalumiere, and Hembrick, the superior
court entered an order granting defendant's motion to suppress.
Additionally, in the same order, the court dismissed the charges
against defendant.
In the suppression order, the court made the following
findings of fact. Defendant and Mr. Teeter arrived at Time Out
at around 4:00 or 4:30 p.m. Mr. Teeter testified that he and
defendant were sitting at a table outside on Time Out's patio.
Defendant and Mr. Teeter left Time Out at around 8:00 or 8:30
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p.m. Over the course of the evening, Mr. Teeter consumed four
beers, and defendant consumed four bourbons on the rocks.
Officer Jefferies noticed defendant and Mr. Teeter and
because "they were talking loudly, . . . Officer Jeffries [sic]
believed the Defendant was impaired." Apart from talking
loudly, "there was nothing unusual about the Defendant's
behavior or conversation in the bar."
While defendant and Mr. Teeter were in the restaurant, a
group of motorcyclists parked their vehicles in Time Out's
parking lot. One of these, "a pink, ninja sport motorcycle,"
parked "three to four feet behind the Defendant's Porsche sport
utility vehicle on the passenger side." The trial court found
that the pink motorcycle was "illegally parked."
At around 8:15 p.m., when it was dark outside, Officer
Jefferies saw defendant and Mr. Teeter walk out of the
restaurant, and he noticed that defendant and Mr. Teeter were
still talking loudly. The trial court found that "[w]hen the
Defendant left with his friend, [Officer Jefferies] saw the
Defendant and thought the Defendant should not be driving
because he continued to talk loudly. He did not observe
anything unusual about the Defendant's appearance, smell,
walking, balance, eyes, or speech, other than he was talking
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loudly, upon which he based his opinion that the Defendant was
impaired and should not be driving."
Defendant got into his vehicle with the radio playing and
the air conditioning on. When defendant began to back up, a
motorcyclist ran toward the illegally parked motorcycle, and,
together with other motorcyclists, started yelling at
defendant's SUV. One motorcyclist got onto the motorcycle, but
was unable to move it in time. He jumped off, and defendant's
SUV "backed over it, or struck it." The motorcycle fell over
and it was dragged along the pavement for a short distance.
When defendant "heard something," he stopped and got out of
his vehicle. One person was slapping his vehicle, while two
others were holding the motorcycle he had struck. Defendant's
SUV had a small scratch on the bumper.
The trial court found that "[b]ecause the motorcycle stood
lower than the rear window of the Defendant's vehicle and there
were other motorcycles parked in the parking space next to the
passenger side of the Defendant's vehicle, there is no evidence
the Defendant saw, or could even see the pink motorcycle parked
behind his vehicle which was in a parking space, or was
otherwise aware of its presence."
After defendant's collision with the pink motorcycle, the
police were called, and Officer Lalumiere was dispatched to Time
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Out at around 8:15 p.m. When he arrived, Officer Lalumiere
"found a Porsche Cayenne sport utility vehicle and a pink
motorcycle behind the parking spaces in the lane between parking
spaces in the parking lot of the establishment. The motorcycle
had scratches on it and there were gouge marks in the pavement
from the kick stand of the motorcycle."
Officer Lalumiere spoke with defendant, and defendant said
that "he came out of the restaurant and backed up striking the
motorcycle." Defendant told the officer that he "had been at
the bar for four hours" and initially claimed he had two drinks.
When Officer Lalumiere asked him again about the drinks,
defendant said he might have had three. The trial court found
that "[t]he Defendant had an odor of alcohol which Officer
Lalumiere described as 'not real strong, light.'"
Defendant then consented to Officer Lalumiere's conducting
two FSTs. The first test Officer Lalumiere asked defendant to
perform was the "Walk and Turn Test." After Officer Lalumiere
instructed him how to perform the test, defendant "took nine
steps heel-to-toe down one of the lines for a parking space
while counting aloud without a problem." Defendant then asked
Officer Lalumiere what he was supposed to do next. Officer
Lalumiere reminded defendant to follow the instructions, and
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defendant "walked back nine steps heel-to-toe down on the line
while counting aloud without a problem."
Officer Lalumiere then asked defendant to perform the "One-
Legged Stand Test." He explained the directions for that test,
and when defendant was told to start, defendant "raised his foot
more than six inches above the pavement, stopped after fifteen
seconds, [and] put his foot down[.]" Defendant then looked at
Officer Lalumiere and asked what he was supposed to do next.
After Officer Lalumiere told defendant to complete the test,
defendant "picked up his foot and continued for at least fifteen
more seconds until he was stopped by Officer Lalumiere."
Mr. Teeter watched defendant while he performed the FSTs.
According to the trial court, "Mr. Teeter did not see anything
wrong with the Defendant's standardized field sobriety tests and
he did not believe the Defendant was impaired, or unfit to drive
on this occasion." The trial court noted that Mr. Teeter had no
prior criminal convictions and that he "has a severe and very
noticeable stutter when he talks and neither Officer Jeffries
[sic] nor Officer Lalumiere recalled Mr. Teeter spoke with a
stutter when he was interviewed after the accident."
Officer Lalumiere had requested an officer who was
certified to administer PBTs. Officer Hembrick responded and,
once at the scene, noticed that defendant had "a faint odor of
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alcohol on his person and red, glassy eyes." Defendant
submitted to two PBTs, both of which indicated the presence of
alcohol in defendant.
Overall, Officer Lalumiere observed defendant for about an
hour and concluded that defendant "'had consumed alcohol.'"
However, defendant "was not slurring his speech and he walked
without stumbling." While in the presence of the three officers
-- Officers Lalumiere, Jefferies, and Hembrick -- "[d]efendant's
speech was not slurred and he never staggered when he walked . .
. ." Nonetheless, "[b]ased upon the fact that the Defendant had
been at a bar, he was involved in a traffic accident, his
performance tests and the odor of alcohol, Officer Lalumiere
believed the Defendant 'was impaired and it was more probable
than not that he would blow over the legal limit.' Therefore,
he placed the Defendant under arrest for Impaired Driving."
Based on these findings, Judge Fox concluded,
3. The facts and circumstances known
to Officer Lalumiere as a result of his
observations and testing of the Defendant
were insufficient, under the totality of the
circumstances, to form an opinion in the
mind of a reasonable and prudent man/officer
that there was probable cause to believe
that the offenses of Impaired Driving and
Unsafe Movement had been committed and the
Defendant was the person who committed those
offenses.
4. The arrest of the Defendant for
Impaired Driving and Unsafe Movement on this
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occasion violated the Fourth Amendment of
the United States Constitution and the North
Carolina Constitution.
The trial court, therefore, allowed defendant's motion to
suppress and ordered that "[t]he charges of Impaired Driving and
Unsafe Movement against the Defendant" be dismissed. The State
timely appealed to this Court.
Standard of Review
"'[T]he scope of appellate review of an order [regarding a
motion to suppress] is strictly limited to determining whether
the trial [court]'s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support
the [court]'s ultimate conclusions of law.'" State v. Salinas,
366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (quoting State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Findings
of fact that are not challenged "are presumed to be supported by
competent evidence and are binding on appeal." Tinkham v. Hall,
47 N.C. App. 651, 652-53, 267 S.E.2d 588, 590 (1980).
Further, "'[i]f there is a conflict between the state's
evidence and defendant's evidence on material facts, it is the
duty of the trial court to resolve the conflict and such
resolution will not be disturbed on appeal.'" State v. Veazey,
201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009) (quoting
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State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548
(1982)). "This deference is afforded the trial judge because he
is in the best position to weigh the evidence, given that he has
heard all of the testimony and observed the demeanor of the
witnesses. . . . '[B]y reason of his more favorable position,
[the trial judge] is given the responsibility of discovering the
truth.'" State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625,
631 (2000) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d
597, 601 (1971)).
The State's Challenges to Findings of Fact
The State challenges a number of the trial court's findings
of fact. Based on our review of the record, we hold that each
of the findings is supported by competent evidence or is a
reasonable inference drawn from the evidence.
The State first points to the part of the trial court's
finding of fact number 6 that the pink motorcycle "stood lower
than the rear window of the Defendant's vehicle." At the
hearing, Officer Jefferies stated that the height of the
motorcycle was "[c]lose -- right at" defendant's rear window and
that the motorcycle "probably would come up . . . to that line
right there." Officer Jefferies demonstrated where he was
referring to on a photo of the rear of defendant's SUV, although
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the record does not indicate the location of the line on the
photo where Officer Jefferies was pointing.
Because of the failure of counsel to memorialize in the
record where Officer Jefferies pointed, the State contends that
"close" "could mean above or below the [rear] window level," and
this ambiguity renders the evidence incompetent. The trial
court, however, was able to observe precisely where the officer
was pointing.
In addition, Officer Jefferies explained that the pink
motorcycle's "fairing is on the bottom," the windshield was part
of the fairing, the windshield is "exposed . . . maybe about a
[sic] inch" over the handlebars, and "the windshield is
approximately 3 to 4 feet tall from the fairing." Later in the
hearing, after all the evidence was presented, Judge Fox
indicated his own familiarity with the same or similar type of
motorcycle as the pink motorcycle defendant struck:
I'm wondering how in the world any idiot
would park a motorcycle behind an SUV. I
mean, I'm quite familiar with those ninja
bikes. They are not very tall. They're
shorter than the average motorcycle, which
is not very tall. . . . [I]t's unfathomable
to me how you could do that. I mean, how
you could do that and leave your motorcycle
and not expect to come back and find it
creamed. I just don't understand that.
"[I]t is the appellant who has the burden in the first
instance of demonstrating error from the record on appeal[,]"
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State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 764 (1994),
and the State has failed to show that Officer Jefferies'
reference to the photo of the SUV supported a finding contrary
to the finding that "the motorcycle stood lower than the rear
window of the Defendant's vehicle." Further, the finding that
the motorcycle "stood lower than the rear window of the
Defendant's vehicle," along with Judge Fox's remark that "it's
unfathomable . . . how you could . . . leave your motorcycle
[behind an SUV] and not expect to come back and find it
creamed," indicate that Judge Fox dismissed any suggestion that
the top of the motorcycle stood at or above the bottom of
defendant's rear windshield. To the extent that any of the
evidence offered as to the height of the pink motorcycle was
conflicting, it was the duty of the trial court to resolve the
conflict.
The State also challenges the portion of finding of fact
number 6 that "there is no evidence the Defendant saw, or could
even see the pink motorcycle parked behind his vehicle which was
in a parking space, or was otherwise aware of its presence."
Defendant testified that when he was walking to his SUV he did
not see the motorcycle, and when he got to the SUV he did not
walk around it "to check . . . if anything was parked behind
it." Moreover, the trial court found that the motorcycle stood
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lower than defendant's rear windshield, suggesting that
defendant would not have been able to see the motorcycle from
inside the SUV.
In arguing that the finding incorrectly stated that "no
evidence" existed that defendant saw or could see the
motorcycle, the State chiefly contends that Officer Jefferies
testified "that a reasonable person would be able to see the
motorcycle parked four to five feet behind the defendant's car."
This assertion is not a fair representation of Officer
Jefferies' testimony. When Judge Fox asked Officer Jefferies
whether defendant "[w]as . . . in a position to see the
motorcycle parked [behind his SUV][,]" Officer Jefferies
responded, "I think a reasonable person probably could have seen
it because there were several motorcycles out there." (Emphasis
added.) The trial court could reasonably have concluded that
the mere fact (1) that Officer Jefferies thought defendant
"could have seen it" or (2) that there were other motorcycles
parked elsewhere in the parking lot was not evidence that
defendant did see or should have seen the motorcycle parked
directly behind his SUV.
The State also suggests that there was actual evidence that
defendant could see the motorcycle because it "was only
partially behind the defendant's car" and "there was [sic] at
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least three people that saw the motorcycle[,]" including Officer
Jefferies, the individual who tried to move the motorcycle, and
Mr. Teeter. With respect to the position of the motorcycle,
while Officer Jefferies testified that "[t]he front wheel -- the
forks, the front tire and part of the front fender was behind
part of the vehicle," the trial court's unchallenged finding of
fact that there were motorcycles parked in the parking space on
defendant's passenger side suggests that defendant's view of the
rest of the pink motorcycle was obfuscated.
As for the ability of others to see the motorcycle, the
State disregards the fact that it did not show that any of the
people who saw the motorcycle were in a location with similar
visibility to that of defendant at the time they noticed the
motorcycle. Indeed, the record shows that these three
individuals had very different vantage points than defendant
when he walked to his car, got into his car, and backed up.
Moreover, although the record indicates that Officer
Jefferies and Mr. Teeter witnessed one to three individuals
trying to move the pink motorcycle before defendant hit it,
there is no actual testimony from Officer Jefferies or Mr.
Teeter that either one of them noticed that the pink motorcycle
was parked behind defendant's SUV before the frenzied efforts to
try to move it. At most, Officer Jefferies testified that,
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prior to defendant's backing up, he was aware that there were
motorcycles in the parking lot. Based on our review of the
evidence, the trial court could reasonably conclude that even
though others may have been aware of the pink motorcycle before
defendant backed into it, none of the evidence showed that
defendant did see or could have seen the pink motorcycle parked
behind his SUV.
The State next challenges the portion of finding of fact 10
that the pink motorcycle was "illegally parked" behind
defendant's SUV. The State presented evidence -- including
testimony from Officers Jefferies and Lalumiere -- that the pink
motorcycle was not parked within the lines of any parking space
and that it was parked directly behind defendant's SUV in the
area of the parking lot where vehicles were intended to drive.
We fail to see any basis for objecting to the trial court's
finding given the undisputed evidence regarding the location of
the motorcycle. Indeed, the State during the motion to suppress
hearing essentially conceded that point, although arguing that
the fact was immaterial: "Maybe the motorcycle being behind the
defendant's car led to an incident that wasn't the defendant's
fault. That's not the issue. The issue is: Was the defendant
impaired at the time that this incident happened?"
Finally, the State challenges finding of fact 19:
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19. Mr. Teeter did not see anything
wrong with the Defendant's standardized
field sobriety tests and he did not believe
the Defendant was impaired, or unfit to
drive on this occasion. He has no prior
criminal convictions. Mr. Teeter also has a
severe and very noticeable stutter when he
talks and neither Officer Jeffries [sic] nor
Officer Lalumiere recalled Mr. Teeter spoke
with a stutter when he was interviewed after
the accident.
First, the State argues that there was no competent
evidence to support a finding that Mr. Teeter "did not believe
the Defendant was impaired, or unfit to drive on this occasion."
However, Mr. Teeter's testimony indicated that he was with
defendant throughout the entire evening and that he did not
"notice [defendant] acting unusually . . . in the restaurant at
all" or "being unusually loud or boisterous." Mr. Teeter also
stated that he "did not see anything wrong" with defendant's
performance on the FSTs that Officer Lalumiere conducted. This
testimony was competent and supported the trial court's finding
-- a reasonable inference from that testimony -- that Mr. Teeter
did not believe defendant was impaired or unfit to drive.
The State also contends there is no evidence that "Mr.
Teeter . . . has a severe and very noticeable stutter when he
talks[.]" However, as the trial court was able to "see[] the
witnesses, [and] observe[] their demeanor as they testif[ied],"
he was in the best position to determine that Mr. Teeter spoke
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with a stutter. Hughes, 353 N.C. at 208, 539 S.E.2d at 631.
The State does not point to any evidence that Mr. Teeter did not
have a stutter. Indeed, defense counsel noted that stutter on
the record. Accordingly, we conclude that competent evidence
supports finding of fact 19.
The State's Challenges to the Conclusions of Law
The State argues that the trial court's findings of fact do
not support the conclusion that Officer Lalumiere lacked
probable cause to arrest defendant for impaired driving.1
Initially, we note that the trial court determined Officer
Lalumiere lacked probable cause based on "[t]he facts and
circumstances known to Officer Lalumiere as a result of his
observations and testing of the Defendant . . . ."
Additionally, the trial court also stated in finding of fact 23
that Officer Lalumiere concluded there was probable cause based
on "the fact that the Defendant had been at a bar, he was
involved in a traffic accident, his performance tests[,] and the
odor of alcohol[.]" Because the State does not challenge this
finding, it is binding on appeal.
In reviewing the determination that probable cause was
lacking, therefore, we consider only those "facts and
1
The State does not challenge the trial court's conclusion
that probable cause was lacking for defendant's unsafe movement
violation.
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circumstances known to Officer Lalumiere as a result of his
observations," which include the fact that defendant had been at
a bar, was involved in a collision with the pink motorcycle,
performed sobriety tests, and had an odor of alcohol.
Probable cause "deals with probabilities and depends on the
totality of the circumstances" and "'[t]he substance of all the
definitions of probable cause is a reasonable ground for belief
of guilt.'" Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed.
2d 769, 775, 124 S. Ct. 795, 800 (2003) (quoting Brinegar v.
United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S.
Ct. 1302, 1310 (1949)). "'The test for whether probable cause
exists is an objective one -- whether the facts and
circumstances, known at the time, were such as to induce a
reasonable police officer to arrest, imprison, and/or prosecute
another.'" Thomas v. Sellers, 142 N.C. App. 310, 315, 542
S.E.2d 283, 287 (2001) (quoting Moore v. Evans, 124 N.C. App.
35, 43, 476 S.E.2d 415, 422 (1996)).
With regard to what Officer Lalumiere knew when he arrested
defendant, the trial court found that when he arrived at Time
Out, Officer Lalumiere knew that defendant had been inside Time
Out drinking up to three drinks over the course of approximately
four hours (although in actuality defendant had had four
drinks). Defendant "came out of the restaurant and backed up
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striking the motorcycle[,]" which was illegally parked behind
defendant's SUV. There was no evidence that defendant saw the
motorcycle or should have seen it before he backed up.
The State argues that other findings of fact related to the
collision with the motorcycle support a conclusion that
defendant was impaired. The State points to the trial court's
finding that defendant dragged the motorcycle for a short
distance before stopping, that there were gouge marks in the
pavement as a result, and that defendant did not react to the
individuals yelling at him to stop. The State argues that these
findings constitute "evidence of the defendant's failure to
recognize his surroundings . . . and . . . defendant had a
delayed reaction time after he hit the motorcycle."
The trial court, however, made no finding -- and the record
contains no evidence -- regarding whether defendant's reaction
time was delayed in light of the "short distance" defendant
traveled after hitting the motorcycle. Moreover, the trial
court found that defendant's SUV suffered only a small scratch
and the motorcycle's only reported damage was that it had
"scratches on it." Further, the trial court's findings
explained why defendant did not hear individuals yelling: he had
the radio and air conditioning on. The State's argument
regarding defendant's recognition of his surroundings and any
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delayed reaction asks this Court to weigh the evidence and
assess its credibility in a manner different from that of the
trial court. We are not allowed to do so.
In short, the trial court's findings of fact support its
conclusion that there was no probable cause to believe that
defendant had engaged in unsafe movement. The State, at the
trial level, essentially conceded that point, but argued there
was still evidence of impairment.
The trial court's findings proceed to establish the lack of
any other reasonable basis for concluding that defendant was
impaired. The trial court found that apart from the traffic
accident, Officer Lalumiere relied for probable cause on the
fact that defendant had been at a bar, his performance tests,
and the odor of alcohol on defendant. Yet, the trial court
found that Officer Lalumiere testified that the strength of the
alcohol odor was "'not real strong, light.'" In addition, none
of the three officers on the scene observed defendant staggering
or stumbling when he walked, and his speech was not slurred.
Further, the only error defendant committed when performing the
two field sobriety tests was to ask the officer half-way through
each test what to do next. When instructed to finish the tests,
defendant did so.
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The State points to Officer Lalumiere's testimony that
defendant "didn't do terrible" on the FSTs as "additional
evidence . . . that defendant had committed an implied consent
offense." However, this testimony conflicts with Mr. Teeter's
testimony that he saw nothing wrong with defendant's performance
on the FSTs. Further, the trial judge remarked that "these
tests do not even begin to . . . come to the level . . . that I
would view as being failed." The court, therefore, resolved any
conflict in the evidence as to defendant's performance on the
FSTs in favor of defendant.
The State argues on appeal that because Officer Lalumiere
testified he spoke with Officer Jefferies, necessarily, Officer
Jefferies' observations of defendant and his belief about his
impairment provided part of Officer Lalumiere's probable cause.
The trial court, however, in finding of fact 23, set out the
circumstances upon which Officer Lalumiere relied in determining
that he had probable cause to arrest defendant. That finding,
which is binding on appeal, does not mention Officer Jefferies.
It is apparent from other findings of fact that the trial court
did not find Officer Jefferies completely credible. After
weighing the evidence and assessing credibility, the trial court
apparently determined that Officer Jefferies' claimed
observations of defendant's prior behavior were not part of the
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basis for defendant's arrest. The State presents no grounds for
us to revisit that determination on appeal.
In sum, the trial court found that while defendant had had
four drinks in a bar over a four-hour time frame, the traffic
accident in which he was involved was due to illegal parking by
another person and was not the result of unsafe movement by
defendant. Further, defendant's performance on the field
sobriety tests and his behavior at the accident scene did not
suggest impairment. A light odor of alcohol, drinks at a bar,
and an accident that was not defendant's fault were not
sufficient circumstances, without more, to provide probable
cause to believe defendant was driving while impaired.
The State contends that the facts of this case are similar
to those in Steinkrause v. Tatum, 201 N.C. App. 289, 295, 689
S.E.2d 379, 383 (2009), aff'd per curiam, 364 N.C. 419, 700
S.E.2d 222 (2010), in which this Court found probable cause to
arrest the driver for impaired driving when (1) the driver was
involved in a one-car accident that resulted in the car being
found upside down in a ditch after rolling several times, (2)
one officer noted an odor of alcohol on the driver, and (3) a
second officer observed that the driver looked dirty and sleepy.
The Court specifically found probable cause based on the "fact
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and severity of the one-car accident coupled with some
indication of alcohol consumption." Id.
The Court emphasized that a "car accident alone does not
support a finding of probable cause." Id. at 294, 689 S.E.2d at
382. In this case, the accident was minor and determined by the
trial court to not be defendant's fault. Nothing in Steinkrause
or any of the other cases cited by the State suggest that such
an accident combined with evidence of alcohol consumption and a
light odor of alcohol is sufficient to give rise to probable
cause with no evidence of actual impairment.
Finally, the State argues that "while the numerical reading
on the portable breath test was not admissible at the probable
cause hearing, that number was before the officer in his
consideration of whether defendant had operated a motor vehicle
with a certain alcohol concentration." The State represents
that finding of fact 23 finds that "Officer Lalumiere had a
portable breath test reading that indicated to him that
defendant 'was impaired and it was more probable than not that
he would blow over the legal limit.'" However, contrary to the
State's implication that Officer Lalumiere used a specific
alcohol concentration reading from one of the PBTs to form
probable cause, the evidence and the order only indicate that
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the PBTs returned "positive" results for alcohol in defendant's
bloodstream.
Notwithstanding the absence of any numerical reading from
an alcohol screening test in the evidence before us, the State
cites State v. Rogers, 124 N.C. App. 364, 370, 477 S.E.2d 221,
224 (1996), for support. In Rogers, the trial court admitted
the numerical reading of an Alco-sensor test, in accordance with
N.C. Gen. Stat. § 20-16.3 (1995), to help establish whether the
arresting officer had probable cause for the defendant's driving
impaired. 124 N.C. App. at 370, 477 S.E.2d at 224. However,
the pertinent language of N.C. Gen. Stat. § 20-16.3 that allowed
the arresting officer in Rogers to consider the numerical
reading of the Alco-sensor test was supplanted in 2006 by the
current version of the statute. 2006 N.C. Sess. Laws ch. 253, §
7. The plain language of N.C. Gen. Stat. § 20-16.3(d) (2013)
prohibits "the actual alcohol concentration result" of an
"alcohol screening test" from being used "by a law-enforcement
officer . . . in determining if there are reasonable grounds for
believing . . . [t]hat the driver has committed an implied-
consent offense under G.S. 20-16.2[,]" such as driving while
impaired.
Moreover, in light of the absence of any numerical reading
in the evidentiary record before us, the State's argument would
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effectively allow law enforcement to evade review when arresting
individuals for impaired driving after conducting alcohol
screening tests. This argument, therefore, is wholly without
merit.
Motion to Dismiss
We lastly address the issue whether the trial court erred
in dismissing the charges against defendant. We note that the
State, in support of its position, merely repeats its arguments
that the trial court erred in concluding that Officer Lalumiere
lacked probable cause to arrest defendant. The State does not,
however, cite any authority suggesting that the trial court
erred in dismissing the charges.
However, pursuant to her ethical duty of candor to this
Court, defendant's appellate counsel properly referred the Court
to State v. Joe, 365 N.C. 538, 723 S.E.2d 339 (2012) (per
curiam). In Joe, the Supreme Court reversed this Court for
affirming a trial court's dismissal of the State's charge of
felony possession of cocaine with intent to sell or deliver
because the defendant made no written or oral motion to dismiss
that charge. Id. at 539, 723 S.E.2d at 340. Here, defendant
made no written or oral motion to dismiss the charges, and,
therefore, we must reverse the trial court's dismissal.
Affirmed in part; reversed and remanded in part.
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Judge STEELMAN concurs.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior
to 6 September 2014.