An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1426


Filed: 6 December 2005


v .                                     Dare County
                                        No. 03 CVS 281

    Appeal by petitioner from judgment entered 15 June 2004 by Judge William C. Griffin, Jr. in Dare County Superior Court. Heard in the Court of Appeals 16 August 2005.

    The Twiford Law Firm, P.C., by Katherine F. McKenzie and H.P. Williams, Jr., for petitioner-appellant.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Jeffrey R. Edwards, for respondent-appellee.

    HUNTER, Judge.

    Richard Bryan Mercer (“petitioner”) appeals from a judgment entered 15 June 2004 affirming the Department of Motor Vehicles's (“DMV”) suspension of petitioner's license. For the reasons stated herein, we affirm the judgment.
    The evidence tends to show that on the morning of 24 February 2002 at approximately 2:00 a.m., Corporal Allen Holland (“Corporal Holland”) of the Kill Devil Hills Police Department observed a gold-colored Chevrolet sport utility vehicle (“SUV”) stopped at an intersection on Highway 158. Corporal Holland turned around and returned to Highway 158 about twenty seconds later. He observedthat the SUV was still sitting at the intersection, although there was no other traffic on the road. The SUV then drove away from the stop sign, and Corporal Holland followed.
    Corporal Holland observed the SUV make a wide right turn and pull into the inside lane. Corporal Holland noted that the speed of the vehicle was increasing, and used radar to determine that the SUV was traveling at fifty-eight miles per hour (“mph”) in a fifty mph zone. Corporal Holland also observed the SUV weaving in its lane of travel and changing lanes without signaling. After following the SUV through several turns leading back to Highway 158, Corporal Holland activated his blue lights and stopped the SUV on a side street.
    Petitioner, the driver of the SUV, produced a driver's license for Corporal Holland, but did not have his registration. Corporal Holland noticed a strong odor of alcohol emanating from the vehicle, and observed that petitioner's eyes were red and glassy and that petitioner had a strong odor of alcohol on his breath. When asked how much he'd had to drink, petitioner responded, “[n]ot much.” Corporal Holland noted that petitioner's speech was slurred as he continued to speak with petitioner.
    Corporal Holland then attempted to administer several simple sobriety tests (physical tests to allow assessment of petitioner's level of intoxication without the use of chemical analysis). Although petitioner indicated that he could perform the sobriety tests, he refused to attempt the requested acts. Corporal Hollandalso asked petitioner if he would submit to an alcosensor portable breath test, but petitioner failed to respond.
    After instructing petitioner to exit the SUV, Corporal Holland conducted a horizontal gaze nystagmus test and once more noted the redness of petitioner's eyes. Petitioner was again asked to perform a sobriety test, recitation of the alphabet. Petitioner indicated that he could, but did not complete the test. Petitioner was also instructed on how to perform a sway test and was asked to touch his finger to his nose. Petitioner was unsuccessful at passing either test.
    Corporal Holland placed petitioner under arrest for driving while impaired. Petitioner asked if he could call his son after being placed in the patrol car, and was told that he could make the call when they arrived at the station, because he was already in handcuffs. Petitioner was read his rights by Corporal Holland after arriving at the police station, and was provided with a written copy of his rights pursuant to N.C. Gen. Stat. § 20- 16.2(a). Petitioner attempted unsuccessfully to contact his son twice.
    Officer Keith Standle (“Officer Standle”) entered the chemical analysis area to complete some paperwork. Petitioner began to speak to Officer Standle and asked him to serve as a witness to further sobriety tests. Petitioner did not request, however, that Officer Standle serve as a witness to his chemical analysis test, and Officer Standle did not agree to serve as a witness to any test. Corporal Holland asked Officer Standle to leave the room tocomplete his paperwork, which he did. After an observation period from 2:23 a.m. to 2:59 a.m., Corporal Holland requested petitioner take the chemical analysis test. Petitioner refused, stating that he did not trust the machine.
    After the grant of a preliminary injunction staying revocation of petitioner's driving privileges pending a de novo hearing, the matter was heard in superior court on 10 May 2004. After hearing evidence, including petitioner's testimony, the trial court affirmed the DMV's suspension of petitioner's license and dismissed petitioner's petition for a permanent injunction to prevent DMV from revoking petitioner's driving privileges for his alleged willful refusal to submit to a chemical analysis. Petitioner appeals.


    Petitioner first contends the trial court erred in finding the charging officer had reasonable suspicion to stop petitioner's vehicle. We disagree.
    “'A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause.'” State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97 (2002) (citation omitted). “'Probable cause is “a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.”'” Id. at 94, 574 S.E.2d at 97-98 (quoting State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167 (1999)). In State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128,132 (1999), our Supreme Court held that evidence that the defendant was exceeding the posted speed limit by seven mph in violation of N.C. Gen. Stat. § 20-141, as well as following another vehicle too closely, provided probable cause for the arresting officers to stop the vehicle.
    Here, the record reveals that Corporal Holland, through the use of radar, determined that petitioner was traveling at a speed of fifty-eight mph in a fifty mph zone in violation of N.C. Gen. Stat. § 20-141 (2003). Corporal Holland also observed petitioner weaving within his lane of travel and changing lanes without signaling. Therefore, as the record reflects evidence of a readily observable traffic violation, exceeding the speed limit in violation of N.C. Gen. Stat. § 20-141, probable cause existed for Corporal Holland to stop petitioner's vehicle. We affirm the trial court's finding.

    Petitioner also contends that the trial court erred in finding the charging officer did not deny petitioner the right to have a witness present for his chemical analysis test. We disagree.
    N.C. Gen. Stat. § 20-16.2 (2003) governs implied consent and right of refusal of a driver to chemical analysis. Under the statute, an individual must be informed both orally and in writing of their right to refuse testing, and of the resulting revocation of their licensure for twelve months by DMV as a result of that refusal. N.C. Gen. Stat. § 20-16.2(a)(1)(2). The statute further states: “The person has the right to call an attorney and selecta witness to view for him or her the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time when the person is notified of his or her rights.” N.C. Gen. Stat. § 20-16.2(a)(6).
    With regards to N.C. Gen. Stat. § 20-16.2(a), this Court stated in State v. Lloyd, 33 N.C. App. 370, 235 S.E.2d 281 (1977):
        The purpose of the delay is to allow the defendant, who exercises his rights, a reasonable but limited amount of time to procure [a witness's] presence. The effect of the statute then is to require a defendant to exercise his rights in a timely manner. Even if he does exercise his rights within thirty minutes of notification, the test can and will be administered after the lapse of thirty minutes regardless of whether the requested persons have arrived.

Id. at 374, 235 S.E.2d at 283. In Etheridge v. Peters, Comr. Of Motor Vehicles, 301 N.C. 76, 269 S.E.2d 133 (1980), the petitioner was arrested and charged with driving under the influence, and after being informed of his statutory rights, attempted to contact an attorney. Id. at 77, 269 S.E.2d at 134. The petitioner informed the officer that he wished to wait for the attorney to arrive, despite two offers by the officer to administer the test and reminders to the petitioner of the thirty-minute time limit under the statute for securing the presence of a witness. Id. The petitioner's attorney arrived approximately thirty-five minutes after the petitioner's rights were read, and the petitioner indicated that he was then willing to take the test. Id. However, the officer had already dismantled the test and recorded the test results as a refusal. Id. at 77-78, 269 S.E.2d at 134. TheSupreme Court affirmed the Court of Appeals's holding that petitioner willfully refused to submit to a breathalyzer test. Id. at 79, 269 S.E.2d at 135.
    Here, the record shows that petitioner was given the opportunity to contact a witness after Corporal Holland read petitioner his rights at approximately 2:23 a.m. Corporal Holland testified that he assisted petitioner with dialing the number for petitioner's son. Corporal Holland stated that petitioner appeared to not be able to reach anyone, again requested to try to call his son, and was allowed to do so. Petitioner did not state that he wished for his son to serve as a witness, however, and had already told the officer that he was not going to take the test. At 2:59 a.m., Corporal Holland again requested that petitioner submit to the test, and petitioner again refused. Although petitioner never specified that he desired his son to serve as a witness, Corporal Holland nevertheless delayed testing for the required statutory period because of petitioner's efforts to contact his son. As petitioner was given the opportunity to contact a potential witness, in this case his son, and was unable to procure a witness within the statutory time period of thirty minutes, the trial court did not err in finding that the charging officer did not deny petitioner the right to have a witness present.

    Petitioner finally contends he was denied due process when Officer Standle was asked to leave the room after petitioner had requested his presence as a witness. We disagree.    Our Supreme Court has previously recognized that individuals possess a protected property interest in their licenses. See Henry v. Edmisten and Barbee v. Edmisten, 315 N.C. 474, 480, 340 S.E.2d 720, 725 (1986). However, in reviewing a similar challenge under N.C. Gen. Stat. § 20-16.2 to a petitioner's deprivation of the right to counsel, our Supreme Court in Seders v. Powell, Comr. of Motor Vehicles, 298 N.C. 453, 259 S.E.2d 544 (1979), noted that “anyone who accepts the privilege of driving upon our highways has already consented to the use of the breathalyzer test[,]” and determined that a petitioner's rights in a civil revocation for failure to submit to a chemical analysis are governed by statute. Seders, 298 N.C. at 462-63, 259 S.E.2d at 550-51. As discussed supra, N.C. Gen. Stat. § 20-16.2(a)(6) provides the right for a petitioner to select a witness to view the testing procedures within thirty minutes of the time the petitioner is informed of his or her rights. Id.
    Here, petitioner was afforded the opportunity to contact his son to serve as a witness before taking the chemical analysis test, as discussed supra in the previous section. Further, petitioner's allegations that he was denied the opportunity to have Officer Standle serve as his witness are without merit. Officer Standle testified that he never agreed to serve as a witness for petitioner for any test. Furthermore, we note that Officer Standle did testify before the trial court as to his observations of petitioner on the night of his arrest, and stated that petitioner was impaired at that time.    We note that petitioner relies on the cases of State v. Knoll; State v. Warren; State v. Hicks, 322 N.C. 535, 369 S.E.2d 558 (1988), and State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), in support of his contention. We find these cases to be inapplicable to the instant case. Both Knoll and Hill are criminal cases where the defendants were denied access to witnesses after being arrested for driving while impaired charges, and the holdings in those cases were specific to the defendants' statutory and constitutional rights as criminal defendants. See Knoll, 322 N.C. at 545-46, 369 S.E.2d at 564; Hill, 277 N.C. at 553, 178 S.E.2d at 466. As petitioner appeals from a civil revocation hearing, such cases have no precedential value for his claims.
    Therefore, as Officer Standle did not agree to serve as a witness, and as petitioner was afforded the opportunity to contact his son to serve as a witness, we find petitioner's statutory rights under N.C. Gen. Stat. § 20-16.2 were not violated.
    The trial court's findings as to the reasonable suspicion to stop petitioner's vehicle and as to petitioner's access to witnesses were without error. We affirm the suspension of petitioner's license.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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