State v. Cox, ___ N.C. App. ___, 800 S.E.2d 692 (May. 2, 2017)

In this impaired driving second-degree murder case, the trial court did not err by denying the defendant’s motion to dismiss which had asserted that violation of G.S. 15A-501 required dismissal of the charges. Under G.S. 15A-501, a law enforcement must bring a person arrested before a judicial official without unnecessary delay and must without unnecessary delay advise the person of his right to communicate with counsel and friends and must allow him a reasonable time and opportunity to do so. The vehicle crash occurred at 2:37 AM. An officer arrived at the scene between 3:15 and 3:20 AM and conducted field sobriety testing on the defendant. The defendant was arrested without a warrant for impaired driving and violation of his .04 BAC drivers license restriction. The defendant was taken to a hospital to have blood drawn. He arrived at the hospital around 4:33 AM. The officer advised the defendant of his rights and the defendant signed a rights form; he did not ask to have a witness or attorney present. A telephone was available to the defendant in the hospital room. The defendant’s blood was drawn at 4:55 AM and he was examined by a physician and cleared. The defendant was then taken to a law enforcement center where the lead detective arrived to interview the defendant at about 5:52 AM. The interview began at about 6:15 AM, at which time the defendant was read his Miranda rights and waived his rights. The interview concluded after an hour. The defendant was then charged with second-degree murder and felony serious injury by vehicle. After the detective checked the defendant’s criminal and driving history, an officer transported the defendant to the county jail for processing at 9:35 AM. He was brought before magistrate at approximately 11:11 AM. Prior to seeing the magistrate, the defendant made a phone call to a friend but did not ask the friend come to the jail until after he knew the conditions of his release. Reviewing these facts, the court noted that there was a seven hour delay between the defendant’s arrest and his appearance before a magistrate. The court noted that the defendant was afforded multiple opportunities to have witnesses or an attorney present and chose not to take advantage of those opportunities. It concluded: “Defendant cannot now assert that he was prejudiced to gain relief, either by the absence of a witness or attorney or by the time period between his arrest and appearance before a magistrate.”