STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 00 CRS 11845
ERIK L. ELLENBERG,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Patricia A. Duffy, for the
State.
Culler & Culler, P.A., by Richard A. Culler, for defendant
appellant.
McCULLOUGH, Judge.
On 18 July 2000, defendant was found guilty of impaired
driving in Mecklenburg County District Court. He then appealed his
conviction to the superior court. On 17 November 2000, defendant
filed a motion to dismiss pursuant to N.C. Gen. Stat. § 15A-954
(1999), N.C. Gen. Stat. § 15A-511 (1999), and State v. Knoll, 322
N.C. 535, 369 S.E.2d 558 (1988). Judge Ola M. Lewis heard the
motion on 30 January 2001 and denied it in an order entered 9
February 2001. A jury subsequently found defendant guilty of
driving while impaired, and the trial court imposed a suspended
sentence of thirty days. At the hearing on defendant's motion to dismiss, the following
evidence was presented: At 5:50 p.m. on 21 March 2000, Trooper
James R. Pickard, III, charged defendant with the offense of
driving while impaired and transported him to the Arrest Processing
Center at the Mecklenburg County Jail. Trooper Pickard advised
defendant of his rights with respect to chemical analysis, and
defendant elected not to request a witness for chemical testing.
Defendant did call his wife after 6:29 p.m. to advise her of his
arrest and his potential need for a bond to secure his release. He
submitted to chemical analysis of his breath at 6:51 and 6:52 p.m.,
which revealed an alcohol concentration of 0.08.
Defendant's wife arrived at the jail at approximately 7:15
p.m. Deputies took defendant for fingerprinting at 7:20 p.m., but
the fingerprinting machine was not operating correctly. Defendant
was next taken to the image capturing machine at 7:26 p.m., then to
the Magistrate's Hall at 7:32 p.m. Defendant's wife, after waiting
in line for about forty minutes following her arrival, asked about
defendant's status at the magistrate's window. She was advised
that they did not have any paperwork for defendant and that she
would have to wait. His wife inquired a second time approximately
one hour later at the magistrate's window. She was advised that
the fingerprinting machine was down and that she would be notified
when defendant was returned to the Magistrate's Hall from
processing.
Defendant's paperwork, which was necessary for processing,
arrived at the Magistrate's Hall at 8:44 p.m. He was returned tothe fingerprint area to be reprinted at 9:05 p.m. The magistrate
entered a release order at 9:08 p.m., and defendant was released at
9:20 p.m. on an unsecured bond. Defendant testified he did not
seek further testing upon his release because he believed he was
sober and further testing would not be of any benefit. His wife
testified she thought defendant had no evidence of impairment at
the time of his release.
Deputy Ronald Hill testified it was jail policy that inmates
were not permitted to see visitors in the bonding room until after
the magistrate had seen the inmates. His review of the logbook at
the Arrest Processing Desk did not reveal a signature from
defendant's wife to indicate she had inquired there about
defendant's status. There was no evidence that defendant had
expressed a desire for further testing, and he did not seek further
testing upon his release.
After making findings of fact in accordance with the preceding
evidence, the trial court concluded that “[d]efendant has been
unable to show any constitutional violation or any statutory
violation based upon the events surrounding his arrest and
subsequent release at the Mecklenburg County Jail[.]” The trial
court also concluded “[d]efendant did not suffer irreparable
prejudice by virtue of his processing at the Mecklenburg County
Jail[.]” Upon concluding defendant had “failed to meet his burden
of proof with respect to the Motion to Dismiss[,]” the trial court
denied the motion to dismiss. From the trial court's judgment,
defendant appeals. Defendant contends the trial court erred by denying his motion
to dismiss the impaired driving charge. He argues the Mecklenburg
County Arrest Processing Center has established a policy which
denies a D.W.I. arrestee an opportunity to develop evidence in his
defense. We are not persuaded by defendant's argument.
Initially we note defendant has failed to assign error to any
of the trial court's findings of fact. As a result, those findings
of fact “are presumed to be correct and are binding on appeal.”
State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d 702, 703
(1990). This Court's review shall therefore be limited to whether
those findings support the trial court's conclusions. Id. “In
order to sustain a dismissal of a charge under G.S. 20-
138.1(a)(2)[,] North Carolina law requires a defendant to show a
substantial statutory violation and prejudice arising therefrom.”
State v. Ham, 105 N.C. App. 658, 661, 414 S.E.2d 577, 579 (1992).
Because a chemical analysis of 0.08 or more is sufficient on its
face for conviction, “a violation of defendant's statutory rights
is not per se prejudicial.” Id. at 661, 414 S.E.2d at 579. A
“[d]efendant must show that lost evidence or testimony would have
been helpful to his defense, that the evidence would have been
significant, and that the evidence or testimony was lost.” Id. at
662, 414 S.E.2d at 579 (quoting State v. Dietz, 289 N.C. 488, 493,
223 S.E.2d 357, 360 (1976)).
Defendant's release occurred three and one-half hours after he
was charged with driving under the influence. The trial court
found that the fingerprinting procedure “ensures the safety of thepublic and assures that the Defendant can be properly identified,
checked for warrants and released in a proper fashion.” Because of
the malfunctioning of the fingerprinting machine during the time
defendant was being processed, the trial court found the “[d]elay
in completion of the processing in the Defendant's case was
reasonable and necessary[.]”
While defendant did advise his wife of his arrest, he did not
request a witness for the chemical analysis. His wife arrived more
than twenty minutes after the chemical analysis had been completed,
and there was no record of her inquiring about defendant at the
Arrest Processing Desk. Defendant was released on an unsecured
bond within fifteen minutes of being successfully fingerprinted.
While defendant and his wife expressed their belief that defendant
was sober at the time of his release, he failed to introduce any
evidence to support that claim. Defendant did not seek further
chemical testing upon his release, nor did he present any medical
evidence or expert testimony to show no alcohol would have remained
in his body at the time of his release. It was defendant's own
decision not to seek further chemical testing which potentially
deprived him of evidence helpful to his defense. He has failed to
show the requisite substantial statutory violation and prejudice
arising therefrom to support his motion to dismiss the charge.
Accordingly, defendant's assignment of error is overruled.
No error.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***