On remand from the Supreme Court, __ N.C. __, 814 S.E.2d 39 (June 8, 2018), of this DWI case, the Court of Appeals declined to exercise its discretion to grant the defendant’s petition for a writ of certiorari to review her claim that the trial court erred by denying her motion to dismiss. The defendant’s motion to dismiss asserted that the State violated G.S. 20-38.4, G.S. 15A-534, and State v. Knoll, 322 N.C. 535 (1988), when the magistrate failed to provide her a written copy of form AOC-CR-271, advising of her right to have witnesses observe her demeanor in jail; and failed to enter sufficient findings of fact to show that the defendant was a danger to herself and others to justify imposing a secured bond pursuant to G.S. 15A-534. Dismissal of charges for violations of statutory rights is a drastic remedy which should be granted sparingly. Before a motion to dismiss should be granted it must appear that the statutory violation caused irreparable prejudice to the preparation of the defendant’s case.

     On the first issue, the State conceded that the magistrate did not comply with G.S. 20-38.4 in that the magistrate did not inform the defendant in writing of the established procedure to have others appear at the jail to observe her condition and failed to require her to list all persons she wanted to contact and telephone numbers on the relevant form. However, the State argued that the defendant could not demonstrate irreparable prejudice to the preparation of her case because the magistrate orally informed the defendant of her right to have witnesses present to observe her condition. In denying the motion to dismiss, the trial court found that the magistrate told the defendant of her right to have individuals come to the detention center to observe her condition and that once she was placed in the detention center, the defendant was allowed to make phone calls to several identified people. These findings are supported by competent evidence.

     With respect to the defendant’s argument that the magistrate violated G.S. 15A-534, the magistrate testified that he considered the defendant’s condition in deciding whether to impose a secured bond and initially entered his reasons on his computer for imposing a secured bond into the “FINDINGS” section of form AOC-CR-270. However, he accidently deleted his reasons listed on form AOC-CR-270 and they were replaced with the text and finding of “BLOOD TEST.” Competent evidence supports the trial court’s findings that the magistrate considered the factors in G.S. 15A-534 in setting the defendant’s bond, and found by clear, cogent, and convincing evidence that the defendant’s physical or mental faculties were impaired and that she was a danger to herself, others or property if released.

     The defendant failed to show that she was denied access to witnesses, her right to have witnesses observe her condition, or her right to collect evidence and did not demonstrate irreparable prejudice to the preparation of her case by the magistrate’s statutory violations and failures to provide her with a copy of form AOC-CR-271 or to make additional factual findings to justify imposing a secured bond under G.S. 15A-534. The court noted that the defendant was informed of her right to have witnesses observe her and had the means and was provided the opportunity to contact potential witnesses. Additionally, the magistrate’s detention order required the defendant to remain in custody for a twelve-hour period or until released into the custody of a sober, responsible adult. In fact, the defendant was released into the custody of a sober acquaintance after spending only two hours and fifty-three minutes in jail.

     The court went on to reject the defendant’s argument that she was per se prejudiced by the magistrate’s statutory violations, pursuant to State v. Hill, 277 N.C. 547 (1971). Distinguishing Hill the court noted that no evidence in the record suggests the State took affirmative steps to deprive the defendant of any access to potential witnesses or an attorney, such as by preventing them from talking to the defendant or entering the jail to observe her. It continued: “Unlike the defendant in Hill, Defendant was told of her right to have observers present, was not limited to one phone call following her arrest, was allowed and did make numerous calls to multiple individuals and was released to a sober adult within less than three hours. Additionally, the Supreme Court later acknowledged in Knoll that the per se prejudice rule stated in Hill is no longer applicable.”

     Ultimately the court found that the defendant’s arguments failed to demonstrate “irreparable prejudice to the preparation of defendant’s case” and that that she did not raise any “good and sufficient cause” to support the court’s exercise of its discretion to grant her petition and issue the writ of certiorari.