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North Carolina v. Golden11/7/1989
On 12 December 1987, at approximately 7:00 p.m., defendant William Herman Golden was driving his automobile on I-40 in Buncombe County. Ray Anders, who is a Biltmore Estates policeman or security guard and also is a Buncombe County special deputy, was on his way home from work at the same time. He noticed that defendant was driving erratically and observed defendant's vehicle weaving from the right side of the road, then across the center line, then back to the right lane. Officer Anders observed this several times as he followed defendant's vehicle for one-quarter to one-half mile. He decided to stop the vehicle and turned on his siren for a minute to a minute and a half before defendant stopped. Upon approaching defendant's vehicle, Officer Anders found a small child in the car with defendant. He also observed a strong odor of alcohol on defendant. Officer Anders asked defendant to step out of his car and perform a sobriety test of touching his fingers to his nose while his eyes were closed. Defendant was unable to do this. Anders decided that defendant should not be driving and radioed for a Highway Patrolman. He also detained defendant until Trooper Kerr arrived about five minutes later. Defendant was not on Biltmore Estates property during the time Officer Anders observed and stopped him.
Officer Anders informed Trooper Kerr of what he had observed and defendant later stipulated that Trooper Kerr made an independent determination of defendant's condition. Trooper Kerr took defendant into custody, brought him to the courthouse, and put him through the usual processing procedures. Defendant
submitted to a breathalyzer test which showed an alcohol concentration of 0.17.
Defendant was charged with driving while impaired in violation of G.S. sec. 20-138.1 and failing to have automobile liability insurance in full force and effect in violation of G.S. sec. 20-313. Defendant pleaded not guilty to both counts in district court on 7 March 1988 and was found guilty of both counts. The district court imposed a 60-day sentence suspended for one year upon conditions. Defendant appealed to superior court for a trial de novo.
Defendant's case came on for trial at the 18 August 1988 session of superior court. Prior to jury selection, defendant orally moved to dismiss the charges on the grounds that his arrest was illegal and unconstitutional and that therefore, defendant claimed, any evidence derived therefrom should be excluded. The court denied the motion and defendant entered a plea of guilty on the DWI charge. The superior court judge imposed a 30-day sentence suspended for one year upon condition that defendant be incarcerated for 24 hours, and pay a $50 fine and costs. Defendant appealed to this Court in apt time.
By this appeal defendant argues that the trial court erred in denying his motion to dismiss. In addressing this question, we first note that G.S. sec. 15A-1444(e) states, in pertinent part, the following:
Except as provided in subsection (a1) of this section [not applicable to this case] and G.S. 15A-979, . . . the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.
Pursuant to this provision, we must conclude that defendant has no right to review of a motion to dismiss because he entered a plea of guilty in superior court. He also has not petitioned for review by writ of certiorari. However, the substance of defendant's motion, which we believe is c
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