STATE of North Carolina
v.
Arthur Frank ELIASON.
No. 8922SC1354.
Court of Appeals of North Carolina.
September 18, 1990.*703 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Hal F. Askins, Raleigh, for State.
Wilson, Biesecker, Tripp & Sink by Joe E. Biesecker, Lexington, for defendant-appellant.
WELLS, Judge.
Defendant's sole argument on appeal is that the trial court erred in denying his pretrial motion to dismiss. In denying defendant's motion, the trial court made extensive findings of fact as to defendant's arrest, confinement and release on secured bond; and concluded that defendant's motion should be denied.
We note initially that defendant has failed to properly except or assign error to any of the trial court's findings of fact. Therefore, these facts are presumed to be correct and are binding on appeal. State v. Ward, 66 N.C.App. 352, 311 S.E.2d 591 (1984). We limit our review to whether these facts support the trial court's conclusions. Id.
Defendant contends that the trial court erred in denying his motion to dismiss because the magistrate who determined the condition of his pretrial release failed to inquire into various considerations mandated by the North Carolina General Statutes and the local policy of the 22nd Judicial District before setting the $300.00 secured bond. We find no error.
In order to warrant dismissal of a charge under N.C.Gen.Stat. § 20-138.1(a)(2), a defendant must make a sufficient showing of a substantial statutory violation and of prejudice arising therefrom. State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). Knoll involved three DWI cases (State v. Knoll, State v. Warren, and State v. Hicks) which had been consolidated for review. In Knoll, the magistrate set defendant's bond without inquiring into any of the conditions which affect the setting of a bond. Defendant had to wait in jail for an hour before he was allowed to call his father, and his father was told that he would not be allowed to post his bond for six hours. In Warren, the defendant was not informed of his right to communicate with counsel and friends. Two individuals attempted to post his bond but were told that defendant would have to remain in jail until 6:00 a.m. before he could be bailed out. In Hicks, the defendant was not informed of his right to communicate with counsel and friends. The magistrate set his bond without inquiring into any of the conditions affecting the setting of a bond, and refused to allow defendant to post his own bond despite the fact that he had the funds to do so. The Court held that each of the defendants had made a sufficient showing of a substantial statutory violation to warrant dismissal.
Defendant in this case has not made such a sufficient showing. He was properly informed of his rights to communicate with counsel and friends and that he could be released upon posting the bond. There was no "hold" placed on his release. Defendant's sole contention is that the magistrate acted improperly in setting a secured bond without inquiring into various "crucial considerations" mandated by statute and local policy.
*704 The relevant statute is N.C.Gen.Stat. § 15A-534(c) (1989):
In determining which conditions of release to impose, the judicial official must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release.
The magistrate had information regarding the nature of the offense charged, the weight of the evidence, defendant's employment, his residence, level of intoxication, record of convictions, and the bond forfeiture which would at least indicate a failure to appear at court proceedings. She failed to inquire into defendant's character and mental condition, and proceeded without information regarding his financial resources, length of residence in the community and family ties, though defendant did inform her that he was married before he was taken from the magistrate's office to the jail.
We do not quarrel with defendant's contention that a magistrate must proceed in accordance with N.C.Gen.Stat. § 15A-534 in setting conditions for pretrial release. We do not, however, discern any substantial statutory violation which would warrant dismissal of the charges against the defendant based on a failure to inquire into every individual factor, given all the other information which the magistrate had before her in setting the bond. Defendant has also failed to show how inquiry into these considerations would have required the magistrate to proceed any differently in setting the conditions of pretrial release.
We also find no violation of any state or federal constitutional right warranting dismissal of the charge. A court on motion of the defendant must dismiss the charges against him if it determines that the criminal defendant's constitutional rights have been flagrantly violated and there has been such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss. N.C.Gen.Stat. § 15A-954(a)(4) (1973).
In State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), the Court held that those charged with driving while impaired have the same constitutional right of access to counsel and witnesses and to confront accusers as any other accused. The analysis focuses on whether access to counsel, family and friends was denied. See State v. Gilbert, 85 N.C.App. 594, 355 S.E.2d 261 (1987). In Hill, defendant's attorney posted his bond, but was not allowed to secure defendant's release or even to see him because of a policy of holding DWI defendants for four hours. In State v. Ferguson, 90 N.C.App. 513, 369 S.E.2d 378, disc. rev. denied, 323 N.C. 367, 373 S.E.2d 551 (1988), this Court held that if a witness arrived timely under the breathalyzer statute and was unable to gain access to the accused despite reasonable efforts to do so, it would constitute a flagrant violation of defendant's constitutional right to gather witnesses and would require dismissal of all charges.
Defendant's argument in this case focuses on the magistrate's failure to inquire into all of the statutory considerations before setting the conditions of his pretrial release. In Gilbert, the defendant was not informed that he had the right to be released. He was allowed to speak with his brother in the magistrate's office, but the magistrate refused to set conditions of release despite his brother's request that he do so. Defendant was held in jail without bail for over four hours. This court found no constitutional violation, holding:
... there is no evidence that defendant requested, or was denied access to anyone. In fact, defendant saw his brother shortly after he was administered the breathalyzer test.
Id. 85 N.C.App. at 597, 355 S.E.2d at 264.
There is no basis in this case to suggest that defendant was denied access to anyone. *705 He was allowed to attempt to call an attorney, and was allowed to call his wife from the jail only minutes after he asked to do so in the magistrate's office. There is no evidence that he or his wife requested to see each other, or that his wife was denied access to him. Defendant was informed of the proper method for posting a property bond and what property was ineligible but neglected to tell his wife. The only condition placed on defendant's access to counsel and friends was that he would not be released from jail before a $300.00 secured bond was posted. There was no violation of defendant's constitutional rights which would warrant dismissal of the charges against him.
No error.
EAGLES and LEWIS, JJ., concur.