State v. Wilson, 225 N.C. App. 246 (Jan. 15, 2013)

The trial court erred by dismissing a misdemeanor DWI charge under G.S. 15A-954. The trial court erroneously dismissed the charges under G.S. 15A-954(a)(1) (statute alleged to have been violated is unconstitutional on its face or as applied to the defendant) without making a finding that the DWI statute, G.S. 20-138.1, was unconstitutional as applied to the defendant. The fact that G.S. 20-139.1(d1) was violated was not a basis for dismissal under G.S. 15A-954. Nor did G.S. 15A-954(a)(4) (flagrant violation of constitutional rights causing irreparable prejudice) support dismissal of the charges where there was no finding that the defendant suffered irreparable prejudice. The court noted that the proper vehicle for the defendant to have asserted his arguments was a motion to suppress; since the State had stipulated that it would not seek to introduce the challenged blood evidence at trial, the trial court was required to summarily grant the defendant’s suppression motion.