State v. Clapp, ___ N.C. App. ___, 817 S.E.2d 222 (Jun. 5, 2018)

Probable cause supported the defendant’s second arrest for impaired driving. After the defendant’s first arrest for DWI, he signed a written promise to appear and was released. Thirty minutes later Officer Hall saw the defendant in the driver’s seat of his vehicle at a gas station, with the engine running. The defendant had an odor of alcohol, slurred speech, red, glassy eyes, and was unsteady on his feet. The defendant told the officer that he was driving his vehicle to his son’s residence. The officer did not perform field sobriety tests because the defendant was unable to safely stand on his feet. Based on the defendant’s prior blood-alcohol reading--done less than two hours before the second incident--and the officer’s training about the rate of alcohol elimination from the body, the officer formed the opinion that the defendant still had alcohol in his system. The defendant was arrested a second time for DWI and, because of his first arrest, driving while license revoked. The trial court granted the defendant’s motion to suppress evidence in connection with his second arrest. The State appealed and the court reversed. The court began by determining that certain findings made by the trial court were not supported by competent evidence. The court then held that probable cause supported the defendant’s second arrest. The defendant admitted that he drove his vehicle between his two encounters with the police. During the second encounter, Hall observed that the defendant had red, glassy eyes, an odor of alcohol, slurred speech and was unsteady on his feet to the extent that it was unsafe to conduct field sobriety tests. While Hall did not observe the defendant’s driving behavior, he had personal knowledge that the defendant had a blood alcohol concentration of .16 one hour and 40 minutes prior to the second encounter. And Hall testified that based on standard elimination rates of alcohol for an average individual, the defendant probably still would be impaired.