An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

    NO. COA02-1140


Filed: 20 May 2003


         v.                        Ashe County
                                No. 00 CRS 248

    Appeal by defendant from order signed 19 March 2002 by Judge Lindsay R. Davis, Jr., in Ashe County Superior Court. Heard in the Court of Appeals 5 May 2003.

    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.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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