STATE OF NORTH CAROLINA
Appellant,
v. Halifax County
Nos:
SHELIA ABDEREAZEQ 93 CRS 5329
MACK ARTHUR BOOTH 94 CRS 4859
WILLIAM MICHAEL BRINSON 94 CRS 4113
MICHAEL WAYNE BUNN 93 CRS 4849
KENNETH T. CARTER 94 CRS 6028
TYRONNE ANTHONY CAUDLE 94 CRS 1149
ALLENE COGSWELL 94 CRS 4581
JAMES ED COOPER 94 CRS 2395
ROBERT LEE CYRUS 93 CRS 10084
RODNEY ROMBRA EVANS 93 CRS 2902
MARGARET NORFLEET FAISON 94 CRS 2357
ALLEN PERRIE GAY 94 CRS 1372
JOSEPH A. GRIFFIN 93 CRS 10085
CARLTON MOODY HARRIS, SR. 94 CRS 1593
CLINTON LEE HARMON 94 CRS 5320
CALVIN LEE HILL 94 CRS 1819
KELLY LORENZA HINES 93 CRS 9112
MICHAEL LLOYD HOPKINS 93 CRS 7701
PAUL RAY HUGHES 94 CRS 1555
JAMES ALLEN HUNT 93 CRS 5810
TYRONE CLEOPAS JAMES 94 CRS 732
JERRY JOHNSON 94 CRS 6035
NICOLETTE JOHNSON 94 CRS 5337
ROY JONES 94 CRS 3121
TIMOTHY SCOTT JONES 93 CRS 10033
CHARLES EARL LEWIS 94 CRS 5335
CHARLIE JUNIOR LEWIS 94 CRS 1823
SHELTON KELSEY LILES 94 CRS 742
JULIUS THOMAS LITTLE 93 CRS 8752
DAVID TIMOTHY LOCKE 93 CRS 7680
WILSON JUNIOUS LYNCH 94 CRS 932
MILTON AURLANDER LYONS 94 CRS 1466
DANIEL E. MCCOLLOUGH 93 CRS 10030
SANDRA WEBB MCKINSEY 94 CRS 1817
JERYL MCWILLIAMS 94 CRS 5162
CAROLYN JEAN MILLS 94 CRS 557
DENNIS EARL MILLS 93 CRS 7971
IVA NORVESTER PAYTON 93 CRS 8362
DEXTER PITTMAN 94 CRS 5604
JAMES QUINTON PITTMAN 94 CRS 3946
PAUL PRICE III 94 CRS 3040
RICKY LEE ROOK 94 CRS 930
JOHN BRENT SAPP 93 CRS 5201
BENJAMIN SILVER 93 CRS 9313
ENOCH SILVER, JR. 94 CRS 6130
CARLTON F. SMALL 94 CRS 409
RICKEY ALSTON SPRAGLEY 94 CRS 5806
JOHN ALBERT STALLINGS 93 CRS 7124
DEBRA JEAN STANLEY 93 CRS 7809
JAMES LEROY STATON 94 CRS 405
JAMES LEROY STATON 94 CRS 2092
ANDREW LEANDER TAYLOR 94 CRS 1247
NATHANIEL THORPE, JR. 93 CRS 6804
ELLIS CRAIG VAUGHAN 94 CRS 7526
BENJAMIN WEAVER 94 CRS 2602
BRUCE GRAHAM WEST, JR. 94 CRS 740
JIMMIE DEE WHITFIELD 94 CRS 2222
MICHAEL DEARINE WIGGINS 94 CRS 6145
DEBORAH ANN ZAZZARETTI 94 CRS 935
Defendant-Appellees.
Appeal by State from orders entered 22 May 1995 by Judge Richard B. Allsbrook in Halifax County Superior Court. Heard in the Court of Appeals 16 May 1996.
Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.
Hux, Livermon & Armstrong, L.L.P., by James S. Livermon, Jr., for defendant-appellees.
MARTIN, Mark D., Judge.
The State of North Carolina appeals from the trial court's orders granting defendants' motions to suppress the results of their intoxilyzer tests, or their refusal to submit to chemical analysis.
In each of the cases the parties stipulated to the following pertinent facts:
1. The charging officer . . . observed the defendant operating a motor vehicle on a public highway . . . .
2. The charging officer had reasonable grounds to believe that defendant had committed an implied consent offense.
3. Defendant was arrested . . . by the charging officer for an implied consent offense.
4. Charging officer transported defendant to a breathalyzer or intoxilyzer room for the purpose of requesting [defendant] to submit to a chemical analysis of his breath.
5. The charging officer advised defendant of his rights enumerated in G.S. 20-16.2(a).
6. The charging officer is a certified chemical analyst in accordance with G.S. 20-139.1.
7. The charging officer requested defendant to submit to a chemical analysis of his breath.
. . . .
Fifty defendants submitted to chemical analysis, while nine defendants refused chemical analysis. It is also stipulated that those defendants who submitted to chemical analysis were tested by the Intoxilyzer Model 5000.
Defendants moved to suppress either the results of, or the refusal to submit to, chemical analysis on the grounds a chemical analyst, other than the charging officer, did not advise defendants of their statutory rights under N.C. Gen. Stat. § 20-16.2(a) (1993) (statutory rights). The trial court granted the motions to suppress.
The sole issue on appeal is whether N.C. Gen. Stat. § 20-16.2(a) requires an officer, other than the charging officer, to advise defendants of their statutory rights in order for the State to admit into evidence, at the criminal prosecution for driving while impaired (DWI), the results of, or refusal to submit to, chemical analysis.
At the outset we note defendants ground their motions to dismiss solely on an alleged procedural defect in the notification of their statutory rights. This alleged procedural defect occurred, if at all, prior to the time defendants elected whether or not to submit to chemical analysis. It follows therefore that the factual distinction between the defendants who submitted to chemical analysis and those who refused such analysis is without legal consequence to the resolution of the present issue.
Section 20-16.2(a), as defendants contend, governs the procedures for notifying a person charged with an implied consent offense of their statutory rights with respect to chemical analysis. State v. Oliver, No. 378PA95, slip op. at 13 (N.C. Supreme Court May 10, 1996); Nicholson v. Killens, 116 N.C. App. 473, 478, 448 S.E.2d 542, 544-545 (1994), supersedeas and disc. review denied, 339 N.C. 614, 454 S.E.2d 256 (1995). Indeed, the Supreme Court recently considered whether section 20-16.2(a) mandates suppression of the results of a defendant's Intoxilyzer 5000 test where the arresting officer, rather than another officer, informed defendant of his statutory rights. See Oliver, No. 378PA95, slip op. at 11-16. See also Bivens v. Cottle, 120 N.C. App. 467, 468, 462 S.E.2d 829, 830 (1995) (judicial decision is presumed to apply retroactively, especially where it clarifies an area of the law), disc. review allowed, ___ N.C. ___, 467 S.E.2d 898 (1996).
In Oliver, the charging officer, a certified chemical analyst, advised defendant of his rights as provided under section 20-16.2(a). Oliver, No. 378PA95, slip op. at 2. Defendant submitted to chemical analysis of his breath by an Intoxilyzer 5000 which established his alcohol concentration was 0.08. Id. At trial, defendant filed a motion to suppress the result of the Intoxilyzer 5000 test on the ground the charging officer, rather than another officer, advised defendant of his rights under section 20-16.2(a). Oliver, No. 378PA95, slip op. at 2-3.
The Supreme Court, construing section 20-16.2(a), concluded "that the legislature intended to permit a qualified arresting officer to notify defendant of his rights, orally and in writing, regarding a chemical analysis of the breath . . . ." Oliver, No. 378PA95, slip op. at 15. "Indeed, logic dictates that if an arresting officer is duly qualified and authorized to administer a chemical analysis of the breath, such arresting officer should also be duly qualified to notify defendant of his rights regarding that test, and a defendant's rights cannot be impaired by such notification." Id.
Likewise, in the present case, the charging officers, each certified chemical analysts, advised the defendants of their statutory rights. Therefore, under Oliver, we find no procedural defect in the notification defendants received regarding their statutory rights. Accordingly, we reverse the trial court's orders granting defendants' motions to suppress and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Judges JOHNSON and LEWIS concur.
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