STATE OF NORTH CAROLINA
v. Bladen County
No. 05 CRS 50012
BILLY RAY DAVIS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Patricia A. Duffy, for the State.
Kevin P. Bradley, for defendant-appellant.
JACKSON, Judge.
On 1 January 2005, Billy Ray Davis (“defendant”)
was cited for
driving
while impaired and driving while license revoked. On 23
May 2005, defendant pled guilty in Bladen County District Court to
both charges. Defendant gave notice of appeal from the District
Court's judgment and a trial de novo was held in Bladen County
Superior Court. The case was tried at the 7 September 2005
Criminal Session of Bladen County Superior Court. Defendant was
convicted of driving while impaired
and driving while license
revoked
. He was sentenced to a term of two years imprisonment for
driving while impaired
and
120 days for driving while license
revoked, to run consecutively.
Defendant appeals the judgment. For the reasons stated below, we find no error.
On 1 January 2005, Trooper Matt Hardee of the North Carolina
State Highway Patrol was on his way to Elizabethtown, North
Carolina. Shortly after 5:00 p.m., Trooper Hardee came up behind
defendant's pickup truck and noticed he was driving “a lot slower
than the speed limit.” The speed limit was fifty-five m.p.h., and
Trooper Hardee estimated defendant's speed as forty to forty-five
m.p.h. Trooper Hardee noticed that defendant “crossed the fog
line, the white line, a couple of times.” Because it was New
Year's Day and a weekend afternoon, Trooper Hardee decided to stop
defendant to make sure he had not been drinking. Accordingly, he
activated his blue lights and stopped defendant's vehicle. Trooper
Hardee approached defendant in his vehicle, smelled alcohol on his
breath and noticed that his eyes were bloodshot. Trooper Hardee
asked defendant for his driver's license, but he did not have a
license on him. Trooper Hardee escorted defendant to his patrol
car, and noted that he was “unsteady on his feet.” Defendant
refused to take an AlcoSensor test, and was placed under arrest.
Defendant first argues that the trial court erred by denying
his motion to suppress. However, because defendant failed to
comply with the procedural requirements of North Carolina General
Statutes, section 15A-977, this assignment of error is overruled.
Pursuant to part (a) of that section:
A motion to suppress evidence in superior
court made before trial must be in writing and
a copy of the motion must be served upon the
State. The motion must state the grounds upon
which it is made. The motion must be
accompanied by an affidavit containing factssupporting the motion. The affidavit may be
based upon personal knowledge, or upon
information and belief, if the source of the
information and the basis for the belief are
stated.
N.C. Gen. Stat. § 15A-977(a) (2005) (emphases added). Furthermore,
our Supreme Court has held that a defendant who seeks to suppress
evidence must comply with section 15A-977. State v. Satterfield,
300 N.C. 621, 625, 268 S.E.2d 510, 513 (1980); State v. Pearson,
131 N.C. App. 315, 317, 507 S.E.2d 301, 302 (1998).
In the instant case, defendant made an oral motion to
suppress just before the start of trial. Defendant's motion was
not accompanied by any affidavit, and wholly failed to comply with
section 15A-977. Defendant essentially argues that any failure to
comply with the requirements of section 15A-977 were resolved when
the trial court heard the motion in accordance with the State's
request that defendant first present evidence to support his
motion. We disagree.
In State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261, 264
(1984), our Supreme Court ruled that the State's failure to object
to the sufficiency of a motion to suppress at trial, or to the
evidentiary hearing held on the motion, did not constitute waiver.
The Supreme Court stated that:
We have held that defendants by failing to
comply with statutory requirements set forth
in N.C.G.S. 15A-977 waive their rights to
contest on appeal the admission of evidence on
constitutional or statutory grounds. The
State's failure to object to the form of the
motion affects neither that waiver nor the
authority statutorily vested in the trial
court to deny summarily the motion to suppress
when the defendant fails to comply with theprocedural requirements of Article 53. The
trial court could properly have denied the
defendant's motion to suppress based on the
defendant's procedural failures alone[.]
Id.(citing State v. Maccia, 311 N.C. 222, 316 S.E.2d 241 (1984);
State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510 (1980)).
Accordingly, because petitioner failed to comply with section
15A-977 and pursuant to Holloway, the denial of the motion to
suppress is affirmed.
Defendant next argues that the trial court erred in denying
his motion to dismiss the charge of driving while license revoked,
and committed plain error in its instructions to the jury. We
disagree.
Specifically, defendant claims that the State failed to comply
with North Carolina General Statutes, section 20-48(a), which
allows proof of notice by United States mail to be made by the
certificate of any officer or employee of the Division of Motor
Vehicles (“DMV”), naming the person to whom such notice was given
and specifying the time, place, and manner of the giving thereof.
Defendant asserts that the proof of notice provided by the State
does not specify the time thereof, but refers to “the mail date of
the attached order.” Defendant argues that none of the eleven
attached notices were orders and each had a different date. Absent
evidence of knowledge of license revocation, defendant argues that
the charge should have been dismissed. Furthermore, because of the
deficiency in the notice, defendant argues that the court committed
plain error by instructing the jury regarding the permissive
presumption permitted upon compliance with section 20-48(a).
After careful review of the record, briefs, and contentions of
the parties, we find no error. This Court has stated: “'To convict
a defendant under N.C. Gen. Stat. § 20-28(a) of driving while his
license is revoked the State must prove beyond a reasonable doubt
(1) the defendant's operation of a motor vehicle (2) on a public
highway (3) while his operator's license is revoked.'” State v.
Cruz, ___ N.C. App. ___, ___, 620 S.E.2d 251, 256 (2005)
(quoting
State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195
(1989)). “The State must also prove 'the defendant had “actual or
constructive knowledge of the . . . revocation in order for there
to be a conviction under this statute.”'” Id. “This Court has
previously held that 'the State satisfies its burden of proof of a
G.S. 20-28 violation when, “nothing else appearing, it has offered
evidence of compliance with the notice requirements of G.S. 20-48
because of the presumption that he received notice and had such
knowledge.”'” Id. (quoting State v. Curtis, 73 N.C. App. 248, 251,
326 S.E.2d 90, 92 (1985) (quoting State v. Chester, 30 N.C. App.
224, 227, 226 S.E.2d 524, 536 (1976))).
Whenever the Division is authorized or
required to give any notice under this Chapter
or other law regulating the operation of
vehicles, unless a different method of giving
such notice is otherwise expressly prescribed,
such notice shall be given either by personal
delivery thereof to the person to be so
notified or by deposit in the United States
mail of such notice in an envelope with
postage prepaid, addressed to such person at
his address as shown by the records of the
Division. The giving of notice by mail is
complete upon the expiration of four days
after such deposit of such notice. Proof of
the giving of notice in either such manner may
be made by the certificate of any officer oremployee of the Division or affidavit of any
person over 18 years of age, naming the person
to whom such notice was given and specifying
the time, place, and manner of the giving
thereof.
N.C. Gen. Stat. § 20-48(a)(emphasis added). Thus, pursuant to
section 20-48(a), “if notice of a revocation is sent via the mail,
. . . there is a rebuttable presumption that defendant has received
knowledge of the revocation four days after a certificate or
affidavit states that a copy of an official notice has been mailed
to defendant's address.” Cruz, ___ N.C. App. at ___, 620 S.E.2d at
256.57 (citations omitted). “When mailing notice, evidence of
compliance with the statute requires the State to show an official
notice explaining the date revocation will begin and a certificate
or affidavit of a person stating the 'time, place, and manner of
the giving thereof.'” Id. at ___
, 620 S.E.2d at 257 (emphasis in
original).
In the instant case, the record included a DMV certificate
stating that the “attached document [was] a true copy of the
suspension or revocation order mailed to the within named person.”
It further stated that the original notice of revocation had been
“deposited . . . in the United States mail on the mail date of the
attached order in an envelope, postage paid, addressed as appears
thereon, which address is shown by the records of the Division as
the address of the person named on the document.”
Attached to this certificate were eleven notices of license
suspension or revocation, each concluding with a paragraph
beginning, “This order is in addition to and does not supersede anyprior order[.]” The final notice was dated 11 December 2003, and
addressed
to defendant at 4127 Roger Road in Bladenboro, North
Carolina. Trooper Hardee testified that defendant stated to him
that the Roger Road address was his address. The suspension was
scheduled to end on 3 December 2007. Defendant was arrested for
driving while license revoked on 1 January 2005. Defendant
contends that the notice is insufficient because it fails to
include a “time of day.” However, in State v. Herald, 10 N.C. App.
263, 178 S.E.2d 120 (1970), this Court held a similar notice, which
included a date of notice, but not time of day, to meet all the
requirements of section 20-48(a). Id. at 264, 178 S.E.2d at
121.22; see also State v. Teasley, 9 N.C. App. 477, 176 S.E.2d 838
(1970). Thus, we conclude the notice here was sufficient, and the
trial court properly denied the motion to dismiss and properly
instructed the jury on the permissive presumption permitted by
section 20-48(a). Accordingly, we find no error.
No Error.
Chief Judge MARTIN and Judges CALABRIA concur.
Report per Rule 30(e).
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