Following Fowler, discussed above, and holding that G.S. 20-38.6(f) does not violate the defendant’s substantive due process, procedural due process or equal protection rights. Also finding no violation of the constitutional provision on separation of powers.

A defendant, charged with DWI, made a pretrial motion in district court under G.S. 20-38.6(a) alleging that there was no probable cause for his arrest. The district court entered a preliminary finding granting the motion under G.S. 20-38.6(f) and ordering dismissal of the charge. When the state appealed to superior court under G.S. 20-38.7(a), that court found that the district court’s conclusions of law granting the motion to dismiss were based on findings of fact cited in its order. It also concluded that G.S. 20-38.6 and 20-38.7, which allow the state to appeal pretrial motions from district to superior court for DWI cases, violated various constitutional provisions. The superior court remanded to district court for the entry of an order consistent with the superior court’s findings. The state gave notice of appeal and filed a petition for a writ of certiorari to the North Carolina Court of Appeals. (1) The court ruled that the state did not have a right to appeal the superior court’s order to the court of appeals. The order was interlocutory and did not grant the defendant’s motion to dismiss. However, it granted the state’s petition for certiorari to review the issues. (2) The court rejected the defendant’s constitutional and other challenges to G.S. 20-38.6(a) (requires defendant to submit motion to suppress or dismiss pretrial), 20-38.6(f) (requires district court to enter written findings of fact and conclusions of law concerning defendant’s pretrial motion and prohibits court from entering final judgment granting the defendant’s pretrial motion until after state has opportunity to appeal to superior court), and 20-38.7(a) (allows state to appeal to superior court district court’s preliminary finding indicating it would grant defendant’s pretrial motion). (3) The court stated that the legislature’s intent was to grant the state a right to appeal to superior court only from a district court’s preliminary determination indicating that it would grant a defendant’s pretrial motion to suppress evidence or dismiss DWI charges which (i) is made and decided before jeopardy has attached (before the first witness is sworn for trial), and (ii) is entirely unrelated to the sufficiency of evidence concerning an element of the offense or the defendant’s guilt or innocence. The court opined that the legislature intended pretrial motions to suppress evidence or dismiss charges under G.S. 20-38.6(a) to address only procedural matters including, but not limited to, delays in the processing of a defendant, limitations on a defendant’s access to witnesses, and challenges to chemical test results. Separately, the court noted that G.S. 20-38.7(a) does not specify a time by which the state must appeal the district court’s preliminary finding to grant a motion to suppress or to dismiss. The court indicated that an appeal must be taken and perfected within a reasonable time, which depends on the circumstances of the case. (4) Based on the record, the court inferred that the district court not only considered whether the officer had probable cause to arrest the defendant but also preliminarily determined whether there was insufficient evidence for the state to proceed against the defendant for DWI (the court noted that a motion to dismiss for insufficiency of evidence cannot be made pretrial). Because there was no indication that the state had an opportunity to present its evidence, the superior court erred when it concluded that it appeared that the district court’s conclusions of law granting the motion to dismiss were based on findings of fact cited in the district court’s order. Accordingly, the court remanded to superior court with instructions to remand to district court for a final order granting the defendant’s motion to suppress evidence of his arrest for lack of probable cause. Only after the state has had an opportunity to establish a prima facie case may a motion to dismiss for insufficient evidence be made by the defendant and considered by the trial court, unless the state elects to dismiss the DWI charge. When the district court enters its final order on remand granting the defendant’s pretrial motion to suppress, the state will have no further right to appeal from that order.