In this Carteret County case, the defendant appealed from his conviction for habitual impaired driving and habitual felon status. The defendant was treated at the hospital following his arrest and the State obtained his medical records pursuant to a court order. Those records, which were introduced at trial, included a toxicology lab report of the defendant’s alcohol concentration. The defendant argued on appeal that the trial court erred by denying his motion to suppress the medical records because disclosure of the records violated his Fourth Amendment rights. The Court of Appeals found no prejudicial error. Even assuming for the sake of argument that the trial court erred, the Court held that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. That evidence included a strong odor of alcohol on the defendant, defendant’s slurred speech, defendant’s inability to stand up straight, his poor performance on standardized field sobriety tests, his urinating on the police station floor, and opinion testimony from two law enforcement officers that the defendant was appreciably impaired.

In this Martin County case, the defendant was convicted of assault with a deadly weapon inflicting serious injury, felony serious injury by vehicle and driving while impaired for his driving of a vehicle after consuming prescription medications, crossing into oncoming traffic, hitting two other vehicles, and seriously injuring another driver.

(1) The defendant, who was seriously injured in the crash and was taken to the hospital, had a “few coherent moments” in which he agreed to allow his blood to be withdrawn and analyzed for evidence of impairment. The defendant subsequently moved to suppress evidence of the blood analysis on the basis that there was not probable cause to believe he was driving while impaired, the blood was withdrawn without a warrant, and there were no exigent circumstances. The trial court denied the motion, and the Court of Appeals found no error. The Court first determined that the following evidence established probable cause: (a) a witness called 911 to report erratic driving by the defendant before the defendant crashed his vehicle into two other vehicles; (b) there were no skid marks at the scene to indicate that the defendant attempted to stop his vehicle; (c) the defendant admitted to taking oxycodone, valium, and morphine earlier in the day; and (d) after the crash, the defendant was lethargic, had slurred speech, droopy eyelids, and a blank stare. The Court then concluded that exigent circumstances existed as the officer did not have time to obtain a search warrant given the extent of the defendant’s injuries; indeed, the hospital postponed administering necessary pain medication to the defendant until after the State withdrew his blood. After the blood draw, the defendant was air-lifted to another hospital for a higher level of care.

(2) The defendant argued that the trial court erred by failing to take judicial notice of the National Weather Station’s weather conditions (the “Weather Report”) on the date of the collision. The Court of Appeals disagreed, reasoning that the Weather Report was not a document of indisputable accuracy for purposes of Rule 201(b) of the North Carolina Rules of Evidence because it did not state the level of rain that was occurring at the time of the crash. Thus, the Court of Appeals reasoned, the trial court was not required to take judicial notice of the report under Rule 201(d), but was free to use its discretion pursuant to Rule 201(c). And, the Court of Appeals concluded, the trial court did not abuse its discretion by declining to take judicial notice of the Weather Report.

(3), (4) The defendant argued on appeal that the trial court erred in admitting testimony from an analyst regarding the analysis of defendant’s blood, the analyst’s report, and the accompanying chain of custody report. The Court of Appeals found no error. The Court determined that the analyst’s testimony and his report were admissible because, even though the analyst relied on data collected by and tests performed by others, the analyst himself analyzed and reviewed the data, forming his own independent expert opinion and writing his own report. The Court further held that the trial court did not err by admitting the chain of custody report because the State established an adequate chain of custody through testimony of the law enforcement officer who submitted the blood and the analyst who prepared the report.

(5) The Court of Appeals determined that the trial court did not err in denying defendant’s motion to dismiss for insufficient evidence. Defendant’s erratic driving, the severity of the crash, his admission to taking medications, his impaired behavior, and the results of the analysis of defendant’s blood provided substantial evidence of impaired driving. Defendant’s driving in an erratic and reckless manner while impaired and crashing into another vehicle without appearing to have braked, seriously injuring the other driver provided substantial evidence of assault with a deadly weapon inflicting serious injury. Finally, the serious injury to the other driver caused by defendant’s impaired driving provided substantial evidence of felony serious injury by vehicle.

Judge Dietz concurred in the judgment, writing separately to state that he would have resolved the suppression issue solely based on the evidence of impairment establishing probable cause and the exigency resulting from the need to draw blood before medical professionals administered additional medications.

The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.

(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error. 

(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.

(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

The trial court erred by denying the defendant’s motion to dismiss in this impaired driving case. Responding to a report of a motor vehicle accident, officers found a Jeep Cherokee on the side of the road. The vehicle’s right side panel was damaged and the officer saw approximately 100 feet of tire impressions on the grass leading from the highway to the stopped vehicle. The first ten feet of impressions led from the highway to a large rock embankment that appeared scuffed. Beyond the embankment, the impressions continued to where the vehicle was stopped. No one was in the vehicle or at the scene. An officer checked the vehicle’s records and found it was registered to the defendant. The officer then set out in search of the defendant, who he found walking alongside the road about 2 or 3 miles away. The officer saw a mark on the defendant’s forehead and noticed that he was twitching and unsteady on his feet. When asked why he was walking along the highway, the defendant responded: “I don’t know, I’m too smoked up on meth.” The officer handcuffed the defendant for safety purposes and asked if he was in pain. When the defendant said that he was, the officer called for medical help. During later questioning at the hospital, the defendant confirmed that he had been driving the vehicle and said that it had run out of gas. He added that he was hurt in a vehicle accident that occurred a couple of hours ago. Upon inquiry, the defendant said that he had not used alcohol but that he was “on meth.” The officer didn’t ask the defendant or anyone else at the hospital whether the defendant had been given any medication. The defendant appeared dazed, paused before answering questions, and did not know the date or time. The officer informed the defendant that he would charge him with impaired driving and read the defendant his Miranda rights. Upon further questioning the officer did not ask the defendant when he had last consumed meth, when he became impaired, whether he had consumed meth prior to or while driving, or what the defendant did between the time of the accident and when he was found on the side of the road. At trial the State presented no lab report regarding the presence of an impairing substance in the defendant’s body. The court agreed with the defendant that the State failed to present substantial evidence of an essential element of DWI: that the defendant was impaired while he was driving. Contrasting the case from one where the evidence was held to be sufficient, the court noted, in part, that the State presented no evidence regarding when the first officer encountered the defendant on the side of the road. The officer who spoke with him at the hospital did not do so until more than 90 minutes after the accident was reported, and at this time the defendant told the officer he had been in an accident a couple of hours ago. Moreover, the State presented no evidence of how much time elapsed between the vehicle stopping on the shoulder and the report of an accident being made. And, there was no testimony by any witness who observed the defendant driving the vehicle at the time of the accident or immediately before the accident. The court concluded that although there was evidence that the defendant owned the vehicle and the defendant admitted driving and wrecking the vehicle, he did not admit to being on meth or otherwise impaired when he was driving the vehicle. And the State presented no evidence, direct or circumstantial, to establish that essential element of the crime.

For habitual impaired driving, the three prior impaired driving convictions need not be from different court dates. On appeal, the defendant alleged that the indictment for habitual impaired driving was facially invalid because two of the underlying impaired driving convictions were from the same court date. The indictment alleged the following prior charges: impaired driving on November 26, 2012, with a conviction date of September 30, 2015 in Johnson County; impaired driving on June 22, 2012, with a conviction date of December 20, 2012 in Wake County; and impaired driving on June 18, 2012, with a conviction date of December 20, 2012 in Wake County. The statute contains no requirement regarding the timing of the three prior impaired driving convictions, except that they occur within 10 years of the current charge.

The trial court did not err by denying the defendant’s motion to dismiss a DWI charge. Here, after the officer stopped the defendant’s vehicle, he noticed a moderate amount of alcohol coming from the defendant’s breath, the defendant had red and glassy eyes, the defendant admitting to consuming alcohol hours before, the officer noted five out of six indicators of impairment on the HGN test and the officer believed that the defendant was impaired.

In this felony death by vehicle case, even without evidence of the defendant’s blood-alcohol, the evidence was sufficient to establish that the defendant was impaired. When an officer interviewed the defendant at the hospital, she admitted drinking “at least a 12-pack.” The defendant admitted at trial that she drank at least seven or eight beers, though she denied being impaired. The first responding officer testified that when he arrived on the scene, he noticed the strong odor of alcohol and when he spoke with defendant, she kept asking for a cigarette, slurring her words. He opined that she seemed intoxicated. Finally, the doctor who treated the defendant at the hospital diagnosed her with alcohol intoxication, largely based on her behavior.

(1) There was sufficient evidence that the defendant was operating the vehicle in question. At trial a witness testified about her observations of the car, which continued from her first sighting of it until the car stopped in the median and the police arrived. She did not observe the driver or anyone else exit the car and the car did not move. The witness talked to an officer who arrived at the scene and then left. An officer testified that when she arrived at the scene eight minutes after the call went out, another officer was already talking to the driver who was still seated in the car. (2) The evidence was sufficient to show that the Intoxilyzer test was administered on the defendant at the time in question. Jacob Sanok, a senior identification technician with the local bureau of identification testified that he read the defendant his rights for a person requested to submit to a chemical analysis to determine alcohol concentration; the defendant indicated that he understood those rights; Sanok administered the Intoxilyzer tests to the defendant; and Sanok gave the defendant a copy of the Intoxilyzer test. The State introduced the rights form signed by the defendant; Sanok’s “Affidavit and Revocation Report of  Chemical Analyst[,]” showing that Sanok performed the Intoxilyzer test on the defendant; and the printout from the Intoxilyzer test showing that the defendant, who was listed by name, had a reported alcohol concentration of  “.25g/210L[.]” Even though Sanok did not directly identify the defendant as the person to whom he administered the Intoxilyzer test, an officer identified the defendant in the courtroom as the person who was arrested and transported to the jail to submit to the Intoxilyzer test.

The evidence was sufficient to survive a motion to dismiss. Evidence of faulty driving, along with evidence of consumption of alcohol and cocaine, is sufficient to show a violation of G.S. 20-138.1. Witnesses observed the defendant’s behavior as he was driving, not sometime after. Multiple witnesses testified as to his faulty driving and other conduct, including that he “had a very wild look on his face” and appeared to be in a state of rage; drove recklessly without regard for human life; drove in circles on a busy street and on a golf course; twice collided with other motorists; drove on the highway at speeds varying between 45 and 100 mph; drove with the car door open and with his left leg and both hands hanging out; struck a patrol vehicle; and exhibited “superhuman” strength when officers attempted to apprehend him. Blood tests established the defendant’s alcohol and cocaine use, and one witness testified that she smelled alcohol on the defendant.

A defendant may be convicted for both second-degree murder (for which the evidence of malice was the fact that the defendant drove while impaired and had prior convictions for impaired driving) and impaired driving.