Appeal by defendant from judgment dated 14 November 2001 by
Judge Loto G. Caviness in Buncombe County Superior Court. Heard in
the Court of Appeals 30 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
James N. Freeman, Jr. for defendant appellant.
GREENE, Judge.
Gary D. Ingle (Defendant) appeals from a judgment dated 14
November 2001 entered consistent with a jury verdict finding him
guilty of driving while impaired and driving while license revoked
and from his plea of guilty to habitual impaired driver status.
The evidence presented at trial tends to show at approximately
2:20 a.m. on 5 May 2001, Officer Thomas Whitehead (Officer
Whitehead) and other officers of the Asheville Police Department
were conducting a driver's license checkpoint when a vehicle
operated by Defendant approached and stopped. Officer Whitehead
asked Defendant to produce his driver's license. Defendant
responded he did not have it. Officer Whitehead directed Defendantto park his vehicle in a nearby parking lot where further
investigation could be conducted. The officers ran a license check
and learned Defendant's license had been revoked. While talking to
Defendant, Officer Whitehead detected an odor of alcohol on
Defendant's breath. Also, Defendant's eyes were bloodshot and his
speech was somewhat slurred. Defendant admitted to Officer
Whitehead he had been drinking. Defendant performed poorly on
field sobriety tests conducted by Officer Whitehead. Having formed
the opinion Defendant was impaired, Officer Whitehead transported
Defendant to the detention center, where Defendant was administered
the Intoxilyzer 5000 test by Officer James Wright (Officer Wright).
No evidence indicates whether Officer Wright possessed a permit to
operate the Intoxilyzer 5000 machine. The test revealed Defendant
had an alcohol concentration of 0.12.
Prior to trial, Defendant filed a motion to suppress evidence
obtained from the license check, arguing the license checkpoint
“did not comport with minimal constitutional requirements.” At a
pre-trial hearing, Officer Whitehead testified he obtained
permission from his supervisor to conduct the license checkpoint
and the officers conducting the checkpoint stopped every
approaching car from both directions on the road during the time
the checkpoint was conducted. The trial court then denied the
motion to suppress.
At trial, Defendant objected to the admission of the
Intoxilyzer 5000 test, arguing the State failed to lay a proper
foundation. The trial court overruled the objection and allowedthe test to be introduced into evidence. Defendant did not present
any evidence, and the jury subsequently returned its guilty
verdict.
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The issues are whether: (I) the license checkpoint stopping
all oncoming traffic in both directions was constitutionally
permissible and (II) the State failed to lay a proper foundation
for the admission of the Intoxilyzer 5000 test results in failing
to establish Officer Wright possessed a Department of Health and
Human Services permit to operate the machine.
I
Defendant first contends the trial court erred by denying his
motion to suppress on the ground he was subjected to an
unreasonable search and seizure in violation of his state and
federal constitutional rights. He argues the driver's license
checkpoint constituted an unreasonable search and seizure because
no guidelines were followed by the Asheville Police Department in
conducting the checkpoint. He also argues the stop did not comply
with the guidelines of N.C. Gen. Stat. § 20-16.3A. Finally, he
argues the trial court erred by failing to make findings of fact
and conclusions of law at the end of the suppression hearing.
A license checkpoint, stopping vehicles without suspicion of
any wrongdoing, is constitutionally permissible if all oncoming
traffic is systematically stopped.
See State v. VanCamp, 150 N.C.
App. 347, 351, 562 S.E.2d 921, 925 (2002). Further, there is no
requirement the State introduce written guidelines for conductinglicense checkpoints.
See State v. Tarlton, 146 N.C. App. 417, 422,
553 S.E.2d 50, 54 (2001). License checkpoints not set up to be
driving while impaired checkpoints are not governed by section 20-
16.3A of the North Carolina General Statutes.
Id.; N.C.G.S. § 20-
16.3A (2001). The making of findings of fact and conclusions of
law is not required when there is no material conflict in the
evidence presented at the suppression hearing,
State v. Riddick,
291 N.C. 399, 408, 230 S.E.2d 506, 512 (1976), and the necessary
findings are implied from the admission of the evidence,
State v.
Whitley, 288 N.C. 106, 110, 215 S.E.2d 568, 571 (1975).
In this case, there was no material conflict in the evidence.
The only conflict concerned whether or not Officer Whitehead had
worn a vest. Although the trial court did not sign a written
order, it did make findings for the record at the conclusion of the
hearing. The trial court found Officer Whitehead had permission
from his supervisor to conduct the license checkpoint and the
police vehicles had their lights illuminated. The trial court also
found the checkpoint area was marked and every vehicle in both
directions was stopped. Thus, the license check was proper and
Defendant's motion to suppress was properly denied.
II
Defendant next contends the trial court erred by admitting the
Intoxilyzer 5000 results over Defendant's objections without laying
a foundation establishing Officer Wright had a valid permit issued
by the Department of Health and Human Services to conduct the test.
Before the results of a chemical analysis of breath may beadmitted into evidence, it must be shown the analysis was
“performed according to methods approved by the Commission for
Health Services by an individual possessing a current permit issued
by the Department of Health and Human Services for that type of
chemical analysis.” N.C.G.S. § 20-139.1(b) (2001).
The possession
of a current permit may be shown in one of three ways: (1) by
stipulation of the parties; (2) by offering the permit into
evidence; or (3) by presenting any other evidence which shows the
person administering the test held a valid permit issued by the
authorized agency.
State v. Mullis, 38 N.C. App. 40, 41, 247
S.E.2d 265, 266 (1978). Testimony one has graduated from a school
providing training in the operation of a chemical analysis machine
or has a license to administer the test is insufficient.
State v.
Caviness, 7 N.C. App. 541, 544-45, 173 S.E.2d 12, 14-15 (1970).
Similarly, testimony one has a certificate to operate a
Breathalyzer instrument is insufficient.
State v. Franks, 87 N.C.
App. 265, 268, 360 S.E.2d 473, 475 (1987). The admission of the
results without a showing the operator possessed a valid permit
issued by the authorized agency is prejudicial error unless the
jury verdict shows that it is based upon appreciable impairment of
driving rather than the test result.
State v. Roach,
145 N.C. App.
159, 163-64, 548 S.E.2d 841, 845 (2001).
The State argues a foundation was laid in the form of the test
results sheet, which showed Officer Wright had a permit number of
133550.
However, this form does not identify the issuer of the
permit or when it was issued. It does not show Officer Wrightpossessed a valid permit issued by the Department of Health and
Human Services as required by N.C. Gen. Stat. § 20-139.1(b). As in
Roach, the verdict does not specify whether the jury's finding of
guilt was based upon the test results or evidence of appreciable
impairment. Based upon the foregoing authorities, we hold the
trial court committed prejudicial error by admitting the
Intoxilyzer 5000 test results.
Accordingly, Defendant is entitled to a new trial on the
charges of driving while impaired and habitual driving while
impaired.
No error _ Driving while license revoked.
New trial _ Driving while impaired / Habitual driving while
impaired.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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