State v. Overocker, 236 N.C. App. 423 (Sept. 16, 2014)

The trial court properly granted the defendant’s motion to suppress where no probable cause supported the defendant’s arrest for impaired driving and unsafe movement. The defendant was arrested after he left a bar, got in his SUV and backed into a motorcycle that was illegally parked behind him. The officer relied on the following facts to support probable cause: the accident, the fact that the defendant had been at a bar and admitted to having three drinks (in fact he had four), the defendant’s performance tests, and the odor of alcohol on the defendant. However, the trial court found that the officer testified that the alcohol odor was “light.” Additionally, none of the officers on the scene observed the defendant staggering or stumbling, and his speech was not slurred. Also, the only error the defendant committed in the field sobriety tests was to ask the officer half-way through each test what to do next. When instructed to finish the tests, the defendant did so. The court concluded:

[W]hile defendant had had four drinks in a bar over a four-hour time frame, the traffic accident . . . was due to illegal parking by another person and was not the result of unsafe movement by defendant. Further, defendant's performance on the field sobriety tests and his behavior at the accident scene did not suggest impairment. A light odor of alcohol, drinks at a bar, and an accident that was not defendant's fault were not sufficient circumstances, without more, to provide probable cause to believe defendant was driving while impaired.

The court also rejected the State’s argument that the fact that the officer knew the defendant’s numerical reading from a portable breath test supported the arrest, noting that under G.S. 20-16.3(d), the alcohol concentration result from an alcohol screening test may not be used by an officer in determining if there are reasonable grounds to believe that the driver committed an implied consent offense, such as driving while impaired.