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North Carolina v. Gilbert5/5/1987
The trial court made findings that several of defendant's statutory rights were violated by the magistrate. Those findings must be affirmed on appeal if there is evidence to support them. See State v. Bright, 301 N.C. 243, 271 S.E.2d 368 (1980) (findings of fact supported by competent evidence are binding on appeal). While an examination of the record reveals ample evidence to support the finding that defendant's statutory rights were violated, on this record we see no basis for the court's conclusion that defendant's constitutional rights were violated. In addition, we hold that the statutory violations found do not justify dismissal of the charges against defendant. Accordingly, we reverse.
G.S. 15A-511 requires the magistrate, at the defendant's initial appearance, to inform the defendant, among other things, of the general circumstances under which he may secure pretrial release pursuant to Article 26 of Chapter 15A. G.S. 15A-534.2 provides additional procedures for the magistrate when a defendant has been charged with driving while impaired. G.S. 15A-534.2(b) requires that the magistrate determine pretrial conditions for a defendant's release pursuant to G.S. 15A-534 as well as inform the defendant of the provisions of G.S. 15A-534.2(c). G.S. 15A-534.2(c) states that a defendant has the right to pretrial release under G.S. 15A-534 when (1) he is no longer impaired, or (2) a sober, responsible adult is willing and able to assume responsibility for him until he is no longer impaired.
The uncontradicted evidence here was that defendant was not informed of his rights to pretrial release under either the general provisions of G.S. 15A-511 or the more specific provisions of G.S. 15A-534.2. Although defendant also claims violations of other rights granted him by statute, since we have already found statutory violations, we need not address the question of other possible errors made by the magistrate. Having found evidence to support the trial court's findings that defendant's statutory rights were violated, we nevertheless reverse its dismissal of the charges.
While charges pending against an accused may be dismissed for violations of his statutory rights, dismissal is a drastic remedy which should be granted sparingly. See State v. Curmon, 295 N.C. 453, 245 S.E.2d 503 (1978). Before a motion to dismiss should be granted, this court has held that it must appear that the statutory violation caused irreparable prejudice to the preparation of defendant's case. State v. Knoll, 84 N.C. App. 228, 352 S.E.2d 463 (1987). Here, the defendant has failed to show prejudice. Instead, defendant contends that, under State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), the statutory violations here must be held prejudicial per se. Based on Knoll, supra, we disagree.
In Hill, the court held that where a defendant is denied his constitutional and statutory rights to communicate with counsel and friends immediately after his arrest for driving while impaired, the trial court must presume that defendant's preparation of his case was prejudiced and dismiss the charges against him. The court stated that a denial of access to others effectively deprives the defendant of his only opportunity to gather exculpatory evidence of his impairment. In such a case, to hold that the defendant was not prejudice
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