STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 00-CRS-43936
WILLIAM MICHAEL TABOR
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Culler & Culler, P.A., by Richard A. Culler, for defendant-
appellant.
TIMMONS-GOODSON, Judge.
Defendant appeals pursuant to N.C. Gen. Stat. § 15A-
979(b)(2003) from an order denying a motion to suppress. He was
charged by citation with driving while impaired. From a conviction
of the charge in district court, he appealed to superior court.
After the court denied the motion to suppress, defendant pled
guilty to the offense. The court imposed an active sentence of 120
days. The court suspended the sentence and placed defendant on
probation. The plea agreement reflects that he reserved his right
of appeal.
At issue is whether the arresting officer had probable cause
to arrest defendant. The court's findings of fact show thefollowing: On 28 October 2000, Officer William W. Eubank of the
Charlotte-Mecklenburg Police Department observed a vehicle headed
southbound on Providence Road in Charlotte at a higher rate of
speed than other traffic headed in that direction. The posted
speed limit in that area of Providence Road is 35 miles per hour.
Estimating that the speed of the vehicle was 53 miles per hour,
Officer Eubank decided to stop the vehicle. As Officer Eubank
approached the vehicle, he observed that it was occupied by two
persons. Defendant was seated in the driver's seat. Officer
Eubank asked to see defendant's driver's license and vehicle
registration. Officer Eubank observed that defendant had
difficulty retrieving his license. He also smelled a strong odor
of alcohol emanating from the vehicle. Noticing that defendant's
eyes were glassy and his movements were slow and deliberate,
Officer Eubank asked defendant to step outside of the vehicle.
When defendant complied with this request, Officer Eubank observed
that defendant was unsteady on his feet and was leaning against the
vehicle for support. Officer Eubank also smelled an odor of
alcohol on defendant's person. Defendant stated that he had been
drinking beer at the Carolina Panthers professional football game.
Officer Eubank formed the opinion that defendant had consumed a
sufficient quantity of an impairing substance which had impaired
his mental and physical faculties. He arrested defendant and
charged him with driving while impaired.
Based upon these findings of fact, the court concluded that
Officer Eubank had reasonable suspicion to stop the vehicle andprobable cause to arrest defendant for driving while impaired in
violation of N.C. Gen. Stat. § 20-138.1(2003).
Findings of fact made by a trial judge in ruling upon a motion
to suppress are binding upon the appellate court if they are
supported by competent evidence. State v. Brewington, 352 N.C.
489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165,
148 S.E.2d 992 (2001). Whether these facts establish probable
cause is a question of law fully reviewable on appeal. In re
Gardner, 39 N.C. App. 567, 571, 251 S.E.2d 723, 726 (1979). An
officer has probable cause to arrest a person if he has “'a
reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man in
believing the accused to be guilty[.]'” State v. Zuniga, 312 N.C.
251, 259, 322 S.E.2d 140, 145 (1984) quoting State v. Shore, 285
N.C. 328, 335, 204 S.E.2d 682, 686 (1974). This determination is
based on “the practical and factual considerations of everyday life
on which reasonable and prudent people act.” State v. Thomas, 127
N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997). It is not necessary
that the offense be shown to actually have been committed, only
that the officer had reasonable ground to believe that the offense
has been committed. State v. Crawford, 125 N.C. App. 279, 282, 480
S.E.2d 422, 424 (1997).
The facts in the present case show that Officer Eubank
observed defendant operating a motor vehicle at a rate of speed in
excess of the posted speed limit and in excess of the speed of
other vehicles. Defendant had the strong odor of alcohol on hisperson and glassy eyes. Defendant experienced difficulty walking
and difficulty standing without supporting himself against his
vehicle. Defendant also experienced difficulty in retrieving his
driver's license from his wallet. Defendant admitted that he had
recently consumed beer, an alcoholic beverage, at the Carolina
Panthers football game. Taken as a whole, these facts provide a
basis for an officer to form a reasonable belief that defendant was
guilty of driving while impaired. See, e.g., State v. Tappe, 139
N.C. App. 33, 38, 533 S.E.2d 262, 265 (2000) (probable cause to
arrest for driving while impaired based upon observation of
defendant's reckless driving, glassy eyes, and strong odor of
alcohol); State v. Rogers, 124 N.C. App. 364, 369-70, 477 S.E.2d
221, 224 (1996), disc. review denied, 345 N.C. 352, 483 S.E.2d 187
(1997) (probable cause to arrest for driving while impaired based
upon observations of defendant and odor of alcohol about the
defendant's person).
We affirm the order denying the motion to suppress.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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