STATE OF NORTH CAROLINA
v. Ashe County
No. 00 CRS 248
HOWARD LYLE
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Robert T. Speed for defendant appellant.
McCULLOUGH, Judge.
On 12 February 2000, North Carolina Highway Patrolman C.P.
Olive (Olive) stopped defendant, Howard Lyle, who was driving on a
public street without a seat belt. Defendant pulled into a parking
lot across the street from his business. Trooper Olive approached
defendant's vehicle and “noticed an odor of alcohol” about
defendant's person. After giving defendant an Alcosensor test,
Trooper Olive arrested defendant for driving while impaired and
driving without a seat belt fastened. Trooper Olive placed
defendant in the patrol vehicle to transport defendant to the Law
Enforcement Center for an Intoxilyzer test. Defendant's wife, who
was working at the business, came outside to the patrol car. Trooper Olive informed defendant's wife that he was taking
defendant to the Law Enforcement Center and did so.
Defendant was later convicted of all charges in district
court. Thereafter, defendant appealed to the superior court.
Defendant moved to suppress the Intoxilyzer test and have his case
dismissed on the grounds that he was denied access to a witness to
observe his Intoxilyzer test in violation of N.C. Gen. Stat. § 20-
16.2(a)(6) (2001). Defendant pled guilty to the crime of driving
while impaired after the court denied his motion to suppress the
Intoxilyzer test at a pretrial conference. As part of the plea
arrangement, defendant preserved his right to appeal the denial of
this motion pursuant to N.C. Gen. Stat. § 15A-979(b) (2001); State
v. Brown, 142 N.C. App. 491, 543 S.E.2d 192 (2001). Defendant
appeals from the denial of his motion to suppress.
The trial court's findings with respect to defendant's motion
to suppress are as follows:
14. Trooper Lyle arrived at the LEC
before Mrs. Lyle, and parked his patrol car in
the LEC “sally port.”
15. When Mrs. Lyle arrived at the LEC,
she parked outside the “front” entrance, and
walked around to the sally port.
16. Mrs. Lyle saw that the sally port
door was closed and that a patrol car was
parked inside.
17. Mrs. Lyle entered the “front” door
and spoke with a dispatcher for the Ashe
County Sheriff's Department.
18. Mrs. Lyle told the dispatcher that
she was there to see the defendant.
19. The dispatcher told Mrs. Lyle that
her husband was “being processed,” and that
she could see him after processing.
20. The dispatcher told Mrs. Lyle that
she could wait in the area outside the
dispatch office, but Mrs. Lyle felt cold there
and told the dispatcher that she would sit in
her vehicle, which she did.
21. Trooper Olive read the defendant his
Intoxilyzer rights at approximately 6:58 p.m.
on February 12, 2000.
22. After hearing those rights, the
defendant attempted to telephone an attorney,
John Kilby, but was advised that Mr. Kilby was
out of town.
23. The defendant then attempted to
telephone his wife, telling Trooper Olive that
he wanted her to be a witness to the
Intoxilyzer test.
24. The defendant was unable to locate
Mrs. Lyle by telephone, did speak by telephone
with an employee of his business, but did not
request that employee come to the LEC to
witness the test.
25. At some point before the test was
administered, Trooper Olive spoke by telephone
with someone, and after the conversation told
the defendant that Mrs. Lyle was not present.
26. Neither Trooper Olive nor anyone at
the LEC attempted to locate Mrs. Lyle, or to
invite her into the Intoxilyzer room at the
LEC, for the purpose of allowing her to
witness the Intoxilyzer test.
27. At least once after she had
initially left the LEC to sit in her vehicle,
Mrs. Lyle re-entered the LEC to inquire about
the defendant, and was told by the dispatcher
that “processing” was nearly complete.
28. Mrs. Lyle arrived at the LEC within
the 30-minute observation period prior to
administration of the Intoxilyzer test, and
remained in her vehicle outside the front doorthe entire time, except when she entered the
building to speak with the dispatcher.
29. Mrs. Lyle did not inform the
dispatcher or any other law enforcement
officer at the LEC that she was there to be a
witness during the Intoxilyzer test, because
she did not know at that time that the
defendant wanted her to be a witness.
30. At approximately 7:37 p.m., Trooper
Olive asked the defendant to take the
Intoxilyzer test, and the defendant agreed.
31. The test was administered shortly
thereafter, without Mrs. Lyle's presence.
32. The defendant offered no evidence
that he requested a second test after Mrs.
Lyle arrived at the room where he was located
in the LEC.
. . . .
Although the defendant chose his wife to
be a witness to the test, he was unable to
locate her by telephone or otherwise in time.
While true that she was present outside the
LEC, and if the defendant or Trooper Olive
knew that she was there, she could have been
brought to the test room as a witness, the
evidence does not show that either the
defendant or Trooper Olive knew that she was
outside; and while the dispatcher knew Mrs.
Lyle was outside, she did not know that the
defendant had requested his wife as a witness.
Consequently, the defendant is not entitled to
suppression of the test results.
Based on these findings, the trial court concluded that:
1. The defendant was not denied his
statutory right to have a witness of his
choice present for the purpose of observing
the Intoxylizer test.
“[T]he scope of appellate review of an order such as this is
strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, inwhich event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982). Further, "the trial court's ruling on a motion to
suppress is afforded great deference upon appellate review as it
has the duty to hear testimony and weigh the evidence." State v.
McClendon, 130 N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998),
aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999).
Defendant has not assigned error to any of the findings of
fact made by the trial court, nor does he argue in his brief on
appeal that the facts are not supported by competent evidence.
Rather, defendant contends the trooper's inaction “is equivalent to
a refusal or denial” of his right to have his wife view the testing
procedures pursuant to N.C. Gen. Stat. § 20-16.2(a). We disagree.
According to section 20-16.2(a), before a chemical analysis is
administered, the person being tested has the right to "call an
attorney and select a witness to view for him or her the testing
procedures." N.C. Gen. Stat. § 20-16.2(a)(6) (2001). Although a
defendant may waive this statutory right, denial of this right
requires suppression of the breathalyzer results. See State v.
Myers, 118 N.C. App. 452, 454, 455 S.E.2d 492, 493 (1995). In
Myers, when a defendant asked that his wife be permitted to observe
his taking of the breathalyzer test, the administering officer
responded “that might not be a good idea” because she had also been
drinking. Id. at 453, 455 S.E.2d at 493. This Court concluded
that the officer's statement was “tantamount to a refusal” of thedefendant's request, and therefore the admission of the test
results was prejudicial error requiring a new trial. Id. at 454-
55, 455 S.E.2d at 494.
Here, Trooper Olive properly advised defendant of his right to
have a witness and defendant informed Trooper Olive that he wanted
his wife to observe him taking the breathalyzer test. Trooper
Olive subsequently allowed defendant to use the telephone to
contact his wife. Defendant did not know his wife was at the LEC
and attempted to reach his wife via phone, at the business and at
their residence. Unlike Myer, Trooper Olive tried to effectuate
defendant's wife observing the breathalyzer. Thus, the trial
court's findings support its conclusion that defendant was not
denied his right to have his wife witness the breathalyzer.
Accordingly, the trial court properly denied defendant's
motion to suppress.
Affirmed.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).
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