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Criminal Practice  – DWI – Jurisdiction – District & Superior Court Cases – Roadside Breath Test – Second Intoxilyzer Machine – Rights Advice – Sentencing – Pending Appeal

Even though the state never formally dismissed the district court DWI case against defendant, which was based on a citation issued by the arresting officer, once the grand jury indicted defendant for driving while impaired, the state proceeded in superior court and no longer pursued the district court case. The state’s abandonment of its prosecution in district court to the exclusion of its superior court prosecution served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending. The superior court gained jurisdiction upon the issuance of the indictment, and we reject defendant’s argument that the superior court lacked jurisdiction because his DWI charge remained valid and pending in district court.

We find no error in defendant’s conviction or sentence for driving while impaired.

Defendant does not contest the initial reason for his traffic stop: his vehicle had no rear lamps illuminating its license plate, thereby violating G.S. § 20-129(d). But defendant argues the trial court should have granted his motion to suppress evidence discovered once the traffic stop was prolonged.

However, the officer had reasonable suspicion to prolong the stop because he had observed defendant exit a bar after midnight, and he saw defendant swerve several times within his driving lane. Once he stopped defendant, the officer smelled a strong odor of alcohol, defendant presented his debit card when asked for his driver’s license, and defendant admitted to drinking alcohol.

These findings in conjunction with the findings on defendant’s poor performance on roadside sobriety tests supported a conclusion that the officer had probable cause to arrest defendant for DWI, which justified the subsequent intoxilyzer test.

The officer testified that, if defendant had tested low enough on the roadside breath test, he would have given defendant a ride home. Defendant argues that this establishes that the officer lacked sufficient information to believe that defendant was appreciably impaired. This argument fails because the officer’s subjective opinion is not material. A search or seizure is valid when the facts known to the officer meet an objective standard.

Once defendant was arrested and taken to the detention center, he was advised of his implied consent rights, and he agreed to an intoxilyzer test. When the first machine did not work properly, the officer waited the required 15 minutes between breath samples and then had defendant blow into a different intoxilyzer machine.

Contrary to defendant’s argument, the use of a different machine did not trigger G.S. § 20-139.1(b5)’s requirement that defendant be re-advised of his implied consent rights. The officer’s request that defendant provide another sample for the same chemical analysis of the breath on a second intoxilyzer machine was not one for a “subsequent chemical analysis” of “the person’s blood or other bodily fluid or substance in addition to or in lieu of a chemical analysis of the breath” under the statute.

When defendant was convicted of the DWI at issue, he had another DWI conviction pending on appeal before this court. Nevertheless, the trial court took defendant’s prior DWI conviction into account during sentencing.

Although G.S. § 20-4.01(4a)(a)(1) defines a conviction as a “final conviction,” the more specific statute, G.S. § 20-179(c)(1)(a), defines a “prior conviction” merely as a “conviction [that] occurred within seven years before” the later offense. Because there is no language limiting that definition to a “final” conviction or only those not challenged on appeal, we have no authority to interpret the statute as imposing such a limitation.

Moreover, if a person’s sentence is enhanced based upon a prior DWI conviction that is later reversed on direct appeal, he or she is entitled to be resentenced at the proper offender level without that prior conviction.

No error.

State v. Cole (Lawyers Weekly No. 011-353-18, 27 pp.) (Rick Elmore, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) J. Rick Brown for the state; Andrew Banzhoff for defendant. N.C. App.

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