Appeal by petitioner from judgment entered 19 July 2006 by
Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard
in the Court of Appeals 28 August 2007.
The Law Office of David L. Hitchens, PLLC, by David L.
Hitchens, for petitioner-appellant.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kathryne E. Hathcock, for respondent-appellee.
HUNTER, Judge.
Cheryl White (“petitioner”) appeals from a judgment entered on
19 July 2006 sustaining the twelve-month suspension of her driving
privileges. After careful review, we affirm.
On 29 April 2005, Trooper E. B. Miller of the North Carolina
State Highway Patrol was in the area of East John Street and
Interstate 485 in Mecklenburg County when he saw several police
officers conducting a checkpoint, so he pulled over to assist them.
At 12:25 a.m., petitioner approached the checkpoint in the
westbound lane of John Street, which was unblocked by vehicles or
officers. At this point only Trooper Miller and one other officer,
a Matthews Police Department officer, remained at the checkpoint.
The Matthews police officer indicated to petitioner to stop her car
next to the front bumper of the police car in the median of the
road. That officer then turned away to resume her examination of
a driver whom she had just stopped in the eastbound lane.
Trooper Miller testified that he then began to walk toward
petitioner's car. For fifteen to twenty seconds, as he was
“getting ready to walk around the patrol car” to speak with her,
petitioner sat stopped in her car. At that point, before Trooper
Miller reached her, she drove off down the road. Trooper Miller
ran to his patrol car and pursued her.
As Trooper Miller followed, petitioner drove approximately one
tenth of a mile down East John Street and turned into the driveway
of her home. Trooper Miller stated that the speed limit is forty-
five miles per hour at the spot where the checkpoint was located,
then drops to thirty-five miles per hour between there andpetitioner's home. He testified that in that tenth of a mile
petitioner attained a speed of approximately forty miles per hour.
Trooper Miller followed petitioner into her driveway, where he
found her still seated in the driver's seat of the car. Trooper
Miller asked her to exit the vehicle, noticed her eyes were glassy
and red, and smelled the odor of alcohol. He then administered two
Alco-sensor tests five minutes apart, and on each petitioner
registered a .10. He then placed her under arrest and took her to
the Matthews Police Department. There, he asked her to take a test
on an intoxilizer; she agreed, but failed to follow his
instructions on how to do so for several minutes, until the test
ran out. This happened twice, at which point Trooper Miller marked
her down as having willfully refused to take the test.
Petitioner's driving privileges were suspended by the North
Carolina Division of Motor Vehicles for twelve months due to her
willful refusal to submit to the intoxilizer test. She petitioned
the Mecklenburg County Superior Court for review of this decision,
and on 19 July 2006 the court upheld the suspension. Petitioner
now appeals to this Court.
I.
“The scope of an appellate review of a trial court's order
affirming or reversing a final agency's decision is governed by
G.S. sec. 150B-52. This Court must determine whether the trial
court committed any errors of law.”
In re Appeal of Coastal
Resources Comm'n Decision, 96 N.C. App. 468, 472, 386 S.E.2d 92, 94
(1989). Where, as here, “it is alleged that the agency's decisionwas based on an error of law, then
de novo review is required.”
In
re Appeal of Ramseur, 120 N.C. App. 521, 524, 463 S.E.2d 254, 256
(1995);
see also Eury v. N.C. Employment Security Comm., 115 N.C.
App. 590, 598, 446 S.E.2d 383, 388 (1994) (conducting
de novo
review where “the assignments of error . . . presented errors of
law”).
II.
Petitioner makes two related arguments as to her stop and
arrest: First, that the checkpoint was unconstitutional, and
second, that the officer lacked reasonable grounds to believe she
had committed the offense for which she was arrested. We address
each of these in turn.
A.
[1] Petitioner first argues that the trial court erred by
concluding that the checkpoint at issue was established for the
constitutional purpose of examining driver's licenses and
registrations. We disagree.
Petitioner's argument on this point is rooted mainly in the
case of
State v. Rose, 170 N.C. App. 284, 612 S.E.2d 336 (2005).
We considered the implications of
Rose for the requirements for
checkpoints in
State v. Burroughs, 185 N.C. App. 496, 648 S.E.2d
561 (2007). There, we considered the same argument petitioner
makes here: That the court did not inquire closely enough as to
the primary programmatic purpose of the checkpoint. Petitioner's
argument is without merit. This central holding of
Rose and
Burroughs concerns the
constitutionality of certain types of checkpoints, and thus applies
only where the petitioner or defendant has in fact been stopped at
a checkpoint. Here, petitioner was not stopped at the checkpoint,
and as such her argument based on these cases is irrelevant. While
the validity of the checkpoint is not at issue here, petitioner's
avoidance of the checkpoint is relevant to her next argument, and
as such we address it below.
B.
[2] Petitioner further argues that the trial court erred by
concluding that the trooper had reasonable grounds to believe that
petitioner had committed an implied consent offense.
We find a case cited by both parties,
State v. Foreman, 133
N.C. App. 292, 515 S.E.2d 488 (1999),
aff'd as modified, 351 N.C.
627, 527 S.E.2d 921 (2000) to be precisely on point. There, the
defendant made a quick, legal left turn at an intersection where a
“'DWI Checkpoint Ahead'” sign was displayed.
Id. at 293, 515
S.E.2d at 490. An officer associated with the checkpoint noticed
this and pursued the defendant, finding him still in his vehicle
parked in a driveway.
Id. at 293-94, 515 S.E.2d at 490-91. Once
back-up arrived, the officer approached the car, found the
defendant in the driver's seat, and smelled the odor of alcohol.
Id. at 294, 515 S.E.2d at 491.
We summarized the holding of
Foreman in
State v. Stone, 179
N.C. App. 297, 634 S.E.2d 244 (2006):
Our Court . . . held that the facts available
to the officer before the seizure were“sufficient to raise a reasonable and
articulable suspicion of criminal activity.”
Id. at 298, 515 S.E.2d at 493. Our Supreme
Court affirmed our Court's decision that the
officer had reasonable suspicion of criminal
activity, but held that the defendant was not
seized until the officer approached the
vehicle.
Foreman, 351 N.C. at 630, 527 S.E.2d
at 923.
Id. at 303, 634 S.E.2d at 248. Finally, the Supreme Court
concluded that
it is reasonable and permissible for an
officer to monitor a checkpoint's entrance for
vehicles whose drivers may be attempting to
avoid the checkpoint, and it necessarily
follows that an officer, in light of and
pursuant to the totality of the circumstances
or the checkpoint plan, may pursue and stop a
vehicle which has turned away from a
checkpoint within its perimeters for
reasonable inquiry to determine why the
vehicle turned away.
Foreman, 351 N.C. at 632-33, 527 S.E.2d at 924.
In the case at hand, as in
Foreman, an officer pursued a
person who had evaded -- intentionally or by accident -- a
checkpoint and come to a stop in a residential driveway. The
officer then approached the stopped car and spoke to the occupants.
At that point, from a combination of the driver's evasion of a
checkpoint, the odor of alcohol surrounding the driver, and a brief
conversation with the driver, the officer had reasonable grounds to
believe that the driver had committed an implied-consent offense.
See, e.g., State v. Tappe, 139 N.C. App. 33, 36, 533 S.E.2d 262,
264 (2000) (“[t]o justify a warrantless arrest, it is 'not
necessary to show that the offense was actually committed, only
that the officer had a reasonable ground to believe it wascommitted'”) (citation omitted). As such, this assignment of error
is overruled.
III.
[3] Finally, petitioner argues that she did not willfully
refuse to submit to the intoxilizer prior to the expiration of the
thirty-minute statutory grace period to obtain an attorney. This
argument is without merit.
Petitioner makes this argument based on N.C. Gen. Stat. § 20-
16.2(a)(6) (2005), which states:
[B]efore any type of chemical analysis is
administered the person charged shall be taken
before a chemical analyst authorized to
administer a test of a person's breath, who
shall inform the person orally and also give
the person a notice in writing that:
. . .
(6) The person has the right to call an
attorney and select a witness to
view for him 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.
This statute lays out the four components of a “willful
refusal”:
A “willful refusal” occurs whenever a driver
“(1) is aware that he has a choice to take or
to refuse to take the test; (2) is aware of
the time limit within which he must take the
test; (3) voluntarily elects not to take the
test; and (4) knowingly permits the prescribed
thirty-minute time limit to expire before he
elects to take the test.”
Mathis v. Division of Motor Vehicles, 71 N.C. App. 413, 415, 322
S.E.2d 436, 437-38 (1984) (quoting
Etheridge v. Peters, Comr. of
Motor Vehicles, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980)).
Petitioner admits in her brief that “it is not clear from the
facts whether [she] wanted an attorney,” but then argues that she
should have been given the full thirty minutes to
decide whether
she wanted an attorney. This argument is without merit. Only
where a petitioner intends to exercise her rights to call an
attorney and expresses those rights clearly to the officer does the
thirty-minute grace period apply.
See, e.g., McDaniel v. Division
of Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989)
(where defendant “gave no indication whatever that he intended to
exercise his right to call a lawyer or have a witness present,”
trial court's conclusion that he willfully refused to take the
breathalyzer was correct),
cert. denied, 326 N.C. 364, 389 S.E.2d
815 (1990);
State v. Buckner, 34 N.C. App. 447, 451, 238 S.E.2d
635, 638 (1977) (stating that statute does not require officer to
wait thirty minutes to conduct breathalyzer test “when the
defendant has waived the right to have a lawyer or witness present
or when it becomes obvious that defendant doesn't intend to
exercise this right”). Petitioner in this case by her own
admission gave no clear indication that she wanted to call an
attorney, and therefore the officer was not required to wait for
the full thirty minutes before administering the test. As such, we
overrule this assignment of error.
IV.
Because the officer had reasonable grounds that petitioner had
committed an offense and was not incorrect in administering the
breathalyzer test before thirty minutes had expired, we affirm the
decision of the trial court upholding the suspension of
petitioner's driving privileges.
Affirmed.
Judges WYNN and BRYANT concur.
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