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Criminal Practice – DWI – Traffic Stop – ‘Prolonged’ – Original Mission

The reason for an officer to pull defendant over was the fact that the vehicle she was driving was owned by a man whose driver’s license had been suspended. Despite the fact that defendant is a woman, the officer’s realization of this fact did not require him to immediately end the traffic stop. He was still entitled to check defendant’s license, the car’s registration, and its insurance. During this short time (2 minutes and 46 seconds), defendant’s mumbling, her repeated fumbling with the cards in her purse, and the odor of alcohol emanating from the vehicle combined to permit the officer to extend the stop.

We affirm the trial court’s denial of defendant’s motion to suppress.

We note that defendant’s argument is based upon a basic erroneous assumption: that a police officer can discern the gender of a driver from a distance based simply upon outward appearance. Not all men wear stereotypical “male” hairstyles nor do they all wear “male” clothing.

The driver’s license includes a physical description of the driver, including “sex.” Until the officer had seen defendant’s driver’s license, he had not confirmed that the person driving the car was female and not its owner. It was while he was waiting for her to find her license that he noticed her difficulty with her wallet, the odor of alcohol, and her slurred speech.

Defendant cites no authority for her proposition that the officer’s “mission” must have been limited solely to verifying “that the male owner was not driving the vehicle.” Rather, the officer’s “mission” upon stopping defendant’s vehicle appropriately encompassed the two minutes and 46 seconds’ worth of ordinary inquiries incident to any traffic stop, including conversing with defendant in order to inform her of the basis for the stop, asking defendant for her driver’s license, and checking that the vehicle’s registration and insurance had not expired. Thus, the officer was not, as defendant suggests, required to return to his vehicle at the moment he saw that a female, rather than a male, was driving the vehicle, nor upon approaching defendant and learning that her husband was the owner of the car whose license was suspended.

Although the record is silent as to whether defendant was indeed first convicted in district court and thereafter properly appealed that judgment to superior court, since the record alludes to a district court conviction, and since the state does not dispute that the superior court had jurisdiction in this case, we elect to treat defendant’s appeal as a petition for certiorari, and we grant the same.

Affirmed.

Dissent

(Murphy, J.) I dissent from the majority’s decision to treat defendant’s appeal as a petition for writ of certiorari and allowing the same. Based on the record before us it is impossible to determine if the superior court had jurisdiction to conduct a trial de novo.

State v. McNeil (Lawyers Weekly No. 011-356-18, 15 pp.) (Valerie Zachary, J.) Appealed from Wake County Superior Court (Elaine O’Neal, J.) Christine Wright for the state; Michelle Lynch for defendant. N.C. App.

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