State v. Williams

NO. COA13-1221

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Hyde County
Nos. 11 CRS 50118, 12 CRS 22
SAMUEL EUGENE WILLIAMS, JR.,
Defendant.

Appeal by the State from order entered 23 July 2013 by

Judge Wayland J. Sermons, Jr., in Hyde County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
John W. Congleton, for the State.

The Robinson Law Firm, P.A., by Leslie S. Robinson, for
defendant-appellee.

BRYANT, Judge.

Pursuant to N.C. Gen. Stat. § 15A-979(c), where the State

intends to appeal from a trial court’s ruling on a motion, the

State must file a certificate with the trial court indicating

that the State’s appeal is not taken for purposes of delay and

the evidence sought is necessary to the State’s case. Where the

State seeks to administer multiple chemical analysis tests to a

defendant suspected of driving while impaired, the State must
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advise the defendant of his implied consent rights prior to the

administration of each new test pursuant to N.C. Gen. Stat. §

20-16.2(a). Where defendant fails to file a notice of appeal

pursuant to N.C. R. App. P. 3, defendant’s appeal must be

dismissed.

On 21 June 2011 at approximately 8:41 p.m., Hyde County

Sheriff’s Deputy Scott Wilkerson was dispatched to an accident

scene on Ocracoke Island involving a fatality and a golf cart.

Upon arriving at the scene, Deputy Wilkerson observed a body

lying in front of a golf cart and a man, later identified as

defendant Samuel Eugene Williams, Jr., standing next to the golf

cart. Defendant admitted to driving the golf cart. Deputy

Wilkerson testified that defendant had red, glassy eyes, was

very talkative, and smelled strongly of alcohol. Defendant told

Deputy Wilkerson that he had consumed six beers that afternoon.

Deputy Wilkerson administered a portable breath test (alco-

sensor) to defendant which yielded a positive result. Defendant

was arrested and charged with driving while impaired.

Defendant was transported to the Ocracoke Island Sheriff’s

Office intoxilyzer room. Deputy Wilkerson read and gave

defendant a copy of his implied consent rights; defendant signed

the implied consent rights form acknowledging that he understood
 -3-
his rights. After waiting thirty minutes, Deputy Wilkerson, a

certified chemical analyst, asked defendant to submit to a

chemical analysis of his breath, but defendant refused.

Deputy Wilkerson then requested that a blood testing kit be

brought to the office for defendant. Although Deputy Wilkerson

did not re-advise defendant of his implied consent rights for

the blood test, he gave defendant a consent form for the testing

which defendant signed. Defendant’s blood was then drawn using

the blood testing kit by a paramedic on site.

On 23 May 2012, defendant filed motions to suppress the

following: the results of the alco-sensor; evidence obtained as

a result of the arrest of defendant based on lack of probable

cause; defendant’s statement that he consumed “3 Jaeger bombs”;

and statements made by defendant prior to being advised of his

Miranda rights. On 13 June 2012, defendant filed an additional

motion to suppress evidence obtained as a result of the chemical

analysis of his blood.

On 23 July 2013, the trial court entered a written order

denying the following: defendant’s motion to suppress the

results of the alco-sensor; the motion to suppress evidence

obtained as a result of defendant’s arrest based on lack of

probable cause; and the motion to suppress defendant’s statement
 -4-
that he had consumed “3 Jaeger bombs.” The trial court granted

defendant’s motions to suppress the results of the chemical

blood test and defendant’s statements made prior to being

advised of his Miranda rights. The State appeals from the

portion of the order granting defendant’s motion to suppress the

results of the chemical blood test.

_____________________

Defendant attempts to bring forth issues in his brief on

appeal challenging the trial court’s order denying his motions

to suppress the results of the alco-sensor and evidence obtained

as a result of his arrest based on lack of probable cause.

However, defendant has not filed a notice of appeal from the

trial court’s order as required by Rule 3 of our Rules of

Appellate Procedure, N.C. R. App. P. 3 (2013), nor has

defendant filed a writ of certiorari for review of the issues he

attempts to raise. As such, we dismiss defendant’s arguments

challenging the trial court’s denial of his motions. See State

v. May, 207 N.C. App. 260, 262, 700 S.E.2d 42, 44 (2010)

(dismissing appeal where "defendant failed to give timely

written notice of appeal").

___________________________
 -5-
On 10 January 2014, defendant filed a motion to dismiss the

State’s appeal, arguing that the State failed to meet the

certification requirements of N.C.G.S. § 15A-979(c) because the

State addressed its certificate to “the court” rather than to

the trial court judge. We disagree.

North Carolina General Statutes, section 15A-979(c) states

that:

An order by the superior court granting a
motion to suppress prior to trial is
appealable to the appellate division . . .
upon certificate by the prosecutor to the
judge who granted the motion that the appeal
is not taken for the purpose of delay and
that the evidence is essential to the case.

N.C.G.S. § 15A-979(c) (2013).

The State noted the following in its certificate,

“Certification Under N.C.G.S. § 15A-979(c)”:

THE STATE OF NORTH CAROLINA, by the
undersigned assistant district attorney and
pursuant to N.C.G.S. §§ [sic] 15A-979(c),
having given notice of appeal to the Court
of Appeals from the pretrial order of the
trial court granting defendant=s [sic]
motion to suppress evidence in this case,
certifies to the court that the appeal is
not taken for the purpose of delay and that
the evidence suppressed is essential to the
prosecution of the case.

Defendant contends that because N.C.G.S. § 15A-979(c)

requires that the certificate be presented to the judge who
 -6-
granted the motion, any deviation from this statutory language

as presented in the certificate renders the State’s certificate

void. Defendant’s argument lacks merit, as the word “judge” can

be, and is, synonymous with “the court.”

When construing statutes, this Court
first determines whether the statutory
language is clear and unambiguous. If the
statute is clear and unambiguous, we will
apply the plain meaning of the words, with
no need to resort to judicial construction.
However, when the language of a statute is
ambiguous, this Court will determine the
purpose of the statute and the intent of the
legislature in its enactment.

Wiggs v. Edgecombe Cnty., 361 N.C. 318, 322, 643 S.E.2d 904, 907

(2007) (citations and quotation omitted). We agree with the

State that the term “judge” is ambiguous, as “judge” can also

mean “court.” See BLACK’S LAW DICTIONARY 405 (9th ed. 2009)

(defining “court” as “[a] governmental body consisting of one or

more judges who sit to adjudicate disputes and administer

justice[,]” or as “[t]he judge or judges who sit on such a

governmental body”). Moreover, in looking at the purpose of

N.C.G.S. § 15A-979(c), it is clear that this statute is intended

to be a procedural safeguard for defendants against the State,

rather than an insurmountable burden for the State. Our Courts

have held that the certification requirement under N.C.G.S. §

15A-979(c) is paramount in that by failing to file a certificate
 -7-
pursuant to N.C.G.S. § 15A-979(c), the State may not pursue its

appeal. See State v. Judd, 128 N.C. App. 328, 329—30, 494

S.E.2d 605, 606 (1998) (holding this Court lacked jurisdiction

where the State failed to file a certificate as required by

N.C.G.S. § 15A-979(c)); State v. Blandin, 60 N.C. App. 271, 272—

73, 298 S.E.2d 759, 759—60 (1983) (dismissing the State’s appeal

for failure to timely file a certificate pursuant to N.C.G.S. §

15A-979(c), as “[t]o give the State the right to file the

certificate after the case has already been docketed in the

appellate court would be to reduce the requirement of the

certificate to a nullity. If G.S. § 15A-979(c) means anything at

all, it means that the Court is bound to dismiss this appeal.”).

The language of such a certification, however, is not

similarly critical. Rather, the certificate must merely

acknowledge that the State’s “appeal is not taken for the

purpose of delay and that the evidence is essential to the

case.” Provided the certificate contains this required

statement and is timely filed with the trial court, the actual

wording of the certificate in its addressing of the trial court

is flexible. See State v. Turner, 305 N.C. 356, 359, 289 S.E.2d

368, 370 (1982) (holding that the “two obvious purposes of the

certificate [pursuant to N.C.G.S. § 15A-979(c)] are to require
 -8-
the prosecutor to certify that the appeal is not taken for

purpose of delay, and that the suppressed evidence is essential

to the case”). As it should be clear from the context of

N.C.G.S. § 15A-979(c) that in filing a certificate the State is

addressing the judge who granted the motion upon which the State

wishes to appeal, we find it permissible for the State to use

terms such as “judge,” “the court,” “this court,” etc.

Accordingly, we deny defendant’s motion to dismiss the State’s

appeal.

_________________________

On appeal, the State argues that the trial court erred in

granting defendant’s motion to suppress the results of the

chemical blood test. We disagree.

“The standard of review in evaluating a trial court's

ruling on a motion to suppress is that the trial court's

findings of fact are conclusive on appeal if supported by

competent evidence, even if the evidence is conflicting.” State

v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003)

(citation and quotation omitted). Where a trial court's

conclusions of law are supported by findings of fact we will not

disturb those conclusions on appeal. State v. Logner, 148 N.C.

App. 135, 137—38, 557 S.E.2d 191, 193—94 (2001).
 -9-
Specifically, the State argues that evidence of the results

of the chemical blood test was admissible because although

Deputy Wilkerson did not re-advise defendant of his implied

consent rights, defendant signed a consent form for the testing.

North Carolina General Statutes, section 20-16.2, Basis for

Officer to Require Chemical Analysis; Notification of Rights,

holds that:

Any person who drives a vehicle on a
highway or public vehicular area thereby
gives consent to a chemical analysis if
charged with an implied-consent offense. Any
law enforcement officer who has reasonable
grounds to believe that the person charged
has committed the implied-consent offense
may obtain a chemical analysis of the
person.

Before any type of chemical analysis is
administered the person charged shall be
taken before a chemical analyst authorized
to administer a test of a person's breath or
a law enforcement officer who is authorized
to administer chemical analysis of the
breath, who shall inform the person orally
and also give the person a notice in writing
that:

(1) You have been charged with an
implied-consent offense. Under the
implied-consent law, you can refuse any
test, but your driver[‘]s license will
be revoked for one year and could be
revoked for a longer period of time under
certain circumstances, and an officer can
compel you to be tested under other laws.

. . .
 -10-

(3) The test results, or the fact of
your refusal, will be admissible in
evidence at trial.

N.C. Gen. Stat. § 20-16.2(a)(1, 3) (2013) (emphasis added).

Deputy Wilkerson read and gave to defendant a copy of his

implied consent rights, and defendant signed the form

acknowledging he understood these rights. Defendant then

refused to take a breath test. Where a defendant refuses to

take a breath test, such as here, the State may then seek to

administer a different type of chemical analysis such as a blood

test pursuant to North Caroline General Statutes, Section 20-

139.1(b5), Subsequent Tests Allowed:

A person may be requested, pursuant to G.S.
20-16.2, to submit to a chemical analysis of
the person's blood or other bodily fluid or
substance in addition to or in lieu of a
chemical analysis of the breath, in the
discretion of a law enforcement officer . .
. . If a subsequent chemical analysis is
requested pursuant to this subsection, the
person shall again be advised of the implied
consent rights in accordance with G.S. 20-
16.2(a). A person's willful refusal to
submit to a chemical analysis of the blood
or other bodily fluid or substance is a
willful refusal under G.S. 20-16.2. If a
person willfully refuses to provide a blood
sample under this subsection, . . . then a
law enforcement officer with probable cause
to believe that the offense involved
impaired driving or was an alcohol-related
offense made subject to the procedures of
 -11-
G.S. 20-16.2 shall seek a warrant to obtain
a blood sample.

N.C. Gen. Stat. §20-139.1(b5) (2013) (emphasis added). N.C.G.S.

§§ 20-16.2 and 20-139.1 must be read in pari materia “to

determine the procedures governing the administering of chemical

analyses.” Nicholson v. Killens, 116 N.C. App. 473, 478, 448

S.E.2d 542, 544 (1994). “However, we conclude that G.S. 20-

16.2, and that statute alone, sets forth the procedures

governing notification of rights pursuant to a chemical

analysis.” Id. at 478, 448 S.E.2d at 544—45. As such, although

the State is correct in asserting that it could seek to

administer a blood test to defendant after defendant refused to

take a breath test1, the State was required, pursuant to the

mandates of N.C.G.S. § 20-16.2(a) and as reiterated by N.C.G.S.

§ 20-139.1(b5), to re-advise defendant of his implied consent

rights before requesting he take a blood test. This is

particularly important when, as here, defendant had refused a

breath test after being advised of his rights and acknowledging

them. "Statutes imposing a penalty are to be strictly

construed[.]" Id. at 477, 448 S.E.2d at 544 (citation omitted);

1
The statute clearly provides that upon a defendant’s refusal to
provide a blood sample as requested, law enforcement may seek a
warrant to obtain the blood sample for testing. N.C.G.S. § 20-
139.1(b5).
 -12-
see also State v. Gray, 28 N.C. App. 506, 506—07, 221 S.E.2d

765, 765—66 (1976) (holding that failure of the State to show a

breathalzyer test was properly administered required the

suppression of all evidence stemming from that test); State v.

Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57 (1973) (“The

failure [of the State] to establish that defendant was accorded

his statutory rights rendered the results of the breathalyzer

test inadmissible in evidence, and its admission over objection

constituted prejudicial error.”); State v. Warf, 16 N.C. App.

431, 431—32, 192 S.E.2d 37, 38 (1972) (holding that where the

State fails to carry its burden of showing that a breathalyzer

test was properly administered, evidence of that test must be

suppressed). Accordingly, the trial court did not err in

granting defendant’s motion to suppress as to the chemical blood

test.

The State further argues that even if N.C.G.S. § 20-

139.1(b)(5) is applicable, the trial court erred in granting

defendant’s motion to suppress because any statutory violation

was “technical and not substantial and the defendant has shown

no prejudice” because defendant had been advised of his implied

consent rights as to the breath test “less than an hour before

the blood test.” The State cites State v. Green, 27 N.C. App.
 -13-
491, 219 S.E.2d 529 (1975), and State v. Buckner, 34 N.C. App.

447, 238 S.E.2d 635 (1977), in support of its argument.

In Green, the defendant alleged that the arresting

officer’s “garbled” reading of the defendant’s implied consent

rights violated N.C.G.S. § 20-16.2. This Court disagreed,

finding that the arresting officer’s reading of the defendant’s

implied consent rights, coupled with the defendant receiving a

printed copy of those rights and signing a consent form prior to

taking a breath test, was sufficient. Green, 27 N.C. App. at

494—95, 219 S.E.2d at 531—32.

In Buckner, the defendant was properly read and given a

copy of his implied consent rights but did not sign a form

acknowledging his understanding of these rights before he took a

breath test. This Court found that the breath test was

admissible into evidence as it was clear from the record that

the defendant was properly instructed as to his rights and

failed to exercise those rights. Buckner, 34 N.C. App. at 451,

238 S.E.2d at 638.

Both Green and Buckner are distinguishable from the instant

case. In Green and Buckner, each defendant was advised of his

implied consent rights before being asked to take a single

chemical analysis – a breath test. In each case, the technical
 -14-
deficiencies raised by the defendants did not override the facts

showing each defendant was advised of and given copies of his

implied consent rights prior to testing. Here, defendant was

advised of his implied consent rights and thereafter refused to

take the initial chemical breath test. When the State then

sought to administer a second chemical analysis, a blood test,

defendant was not advised of his implied consent rights as to

that test. A failure to advise cannot be deemed a mere

technical and insubstantial violation. The State was required

to re-advise defendant of his implied consent rights prior to

the second chemical analysis test – a blood test. Since

“[s]tatutes imposing a penalty are to be strictly construed[,]"

the State’s failure to adhere to the requirements of N.C.G.S. §§

20-16.2 and 20-139.1 must result in suppression of the results

of the blood test. Accordingly, the State’s argument is

overruled.

Affirmed.

Judges STEPHENS and DILLON concur.