STATE OF NORTH CAROLINA
v
.
SCOTT EDWARD THOMPSON
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III and Assistant Attorney General
Patricia A. Duffy, for the State.
W. David McSheehan and Bobby Khan for defendant-appellant.
WALKER, Judge.
Defendant was charged with and found guilty of driving while
impaired (DWI) in Union County District Court on 13 March 2001. He
appealed to Union County Superior Court, where he was convicted by
a jury. He received a sixty-day suspended sentence along with
twelve months of supervised probation and was assessed $417.00 in
fines and costs.
At trial, the State's evidence tended to show the following:
In the early morning hours of 24 February 2001, Officers James
Hyatt and Mike Buesing of the Wingate Police Department were
driving west on Highway 74 during their routine patrol. They
observed defendant's vehicle traveling at what appeared to be a
high rate of speed in the eastbound lane. After observing the
vehicle for several seconds, Officer Buesing testified that heestimated defendant's speed to be fifty miles per hour in a thirty-
five miles per hour zone. Similarly, Officer Hyatt testified that
he estimated the defendant's speed to be about fifty-five miles per
hour. Officer Buesing was operating the radar unit which verified
defendant was driving above the posted speed limit. Because
Officer Buesing had not completed the necessary training to receive
his radar certification, the officers could not stop defendant
based on this radar reading.
However, prompted by their estimations of defendant's speed,
the officers turned into the eastbound lane of Highway 74 and
followed defendant for five-tenths of a mile to one mile. The
officers observed him weave within his lane and touch the left line
separating the two eastbound lanes at least twice with both left
tires. Based on these observations, Officer Buesing executed a
traffic stop of defendant.
While talking to defendant during the traffic stop, Officer
Buesing noticed his glassy eyes and a strong odor of alcohol about
him. Officer Buesing testified that when he asked defendant to
step out of his vehicle, defendant grabbed the door in a manner
which indicated he needed help exiting. Officer Buesing further
testified that defendant performed poorly on each of the field
sobriety tests administered and that he was both talkative and
argumentative. As a result of his observations, Officer Buesing
was of the opinion that defendant had consumed a sufficient amount
of alcoholic beverages to “appreciably impair both his mental and
physical faculties to operate a motor vehicle.” Defendant was arrested for DWI and was taken to the
intoxilyzer room of the Union County jail. Officer Buesing
testified that he “placed a copy of the rights in front of
[defendant]” for him to follow as he read defendant his intoxilyzer
rights. Defendant then signed a copy of the rights form and
requested that a witness be present before the intoxilyzer test was
administered. After defendant's witness arrived, Officer Buesing
administered the intoxilyzer test and gave defendant a copy of his
intoxilyzer rights. Defendant's blood alcohol reading was 0.10.
Defendant contends the trial court erred in denying his motion
to suppress the stop of his vehicle based on the lack of
reasonable, articulable suspicion of a motor vehicle violation. We
first note that “[o]ur review of a trial court's denial of a motion
to suppress is strictly limited to a determination of whether it's
[sic] findings are supported by competent evidence, and in turn,
whether the findings support the trial court's ultimate
conclusion.” State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d
828, 829-30 (2002) (citing State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982)).
Our Supreme Court recently reaffirmed the standard governing
the requirements for an investigatory stop of a vehicle:
“An investigatory stop must be justified by 'a
reasonable suspicion, based on objective
facts, that the individual is involved in
criminal activity.' A court must consider
'the totality of the circumstances--the whole
picture' in determining whether a reasonable
suspicion to make an investigatory stop
exists. The stop must be based on specific
and articulable facts, as well as the rational
inferences from those facts, as viewed throughthe eyes of a reasonable, cautious officer,
guided by his experience and training. The
only requirement is a minimal level of
objective justification, something more than
an 'unparticularized suspicion or hunch.'”
State v. Steen, 352 N.C. 227, 238-39, 536 S.E.2d 1, 8 (2000)
(citations omitted), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997
(2001).
In State v. Watson, 122 N.C. App. 596, 472 S.E.2d 28 (1996),
a highway patrolman observed a vehicle weaving within its lane and
driving on the dividing line of a dual-lane highway at 2:30 a.m.
The patrolman turned, followed the vehicle, and observed
defendant's driving behavior for about 15 seconds, after which he
executed a traffic stop of the vehicle. Id. at 598, 472 S.E.2d at
29. The patrolman testified that he observed a strong odor of
alcohol on defendant whose eyes were red and glassy. Id. On the
basis of his observations, the patrolman arrested defendant for
DWI. Id. Although defendant argued that the patrolman lacked a
reasonable, articulable suspicion of a traffic violation when he
executed the stop, this Court held that the patrolman's
observations provided sufficient grounds to form a suspicion of
impaired driving under the totality of the circumstances. Id. at
599-600, 472 S.E.2d at 29-30.
The facts of this case are very similar to those in Watson.
Both vehicles were being operated in the early morning hours. The
officers in both cases observed the drivers weave within their
lane, touching the dividing line of the highways. Moreover, the
officers in this case had the additional factor of having observedthe defendant exceeding the speed limit. Thus, consistent with the
requirements set forth in Steen and this Court's ruling in Watson,
we conclude that sufficient articulable facts existed to allow the
officers to form a reasonable suspicion that defendant was
committing a motor vehicle violation and that the trial court did
not err in denying defendant's motion to suppress this evidence.
Defendant next argues that the trial court erred in denying
his motion to suppress the intoxilyzer test results due to Officer
Buesing's failure to comply with N.C. Gen. Stat. § 20-16.2(a)
(2001). N.C. Gen. Stat. § 20-16.2(a) provides that “before any
type of chemical analysis is administered the person charged shall
be taken before a chemical analyst authorized to administer a test
of a person's breath, who shall inform the person orally and also
give the person a notice in writing...” of his rights associated
with such test. This Court has held that an officer administering
an intoxilyzer test fully complies with the statutory requirements
of N.C. Gen. Stat. § 20-16.2(a) by placing a written copy of the
rights form before the defendant as the officer reads them aloud
and then obtaining the defendant's signature on a copy of the
rights form prior to administering the intoxilyzer test. Watson,
supra; see also State v. Carpenter, 34 N.C. App. 742, 239 S.E.2d
596 (1977)(holding that a breathalyzer operator fully complied with
N.C. Gen. Stat. § 20-16.2(a) when he orally advised the defendant
of his rights and placed a form containing those same rights in
front of the defendant, even though the officer was unsure whetherdefendant actually read the form), disc. review denied, 294 N.C.
183, 241 S.E.2d 518 (1978).
In this case, Officer Buesing testified that he “placed a copy
of the rights in front of [defendant]” as he read the intoxilyzer
rights to him and then obtained defendant's signature before
administering the test. After completing the intoxilyzer test,
Officer Buesing provided defendant with a copy of the rights form.
Although defendant argues that Officer Buesing was required to
physically hand him a copy of his rights form prior to
administering the test, we find nothing in N.C. Gen. Stat. § 20-
16.2(a) or our appellate decisions that mandates such a
requirement. Therefore, we conclude the trial court did not err in
denying defendant's motion to suppress the intoxilyzer test
results.
We have carefully reviewed defendant's remaining assignments
of error and find them to be without merit.
No error.
Judges McGEE and HUNTER concur.
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