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[T] State v. Lyle5/20/2003
UNPUBLISHED
On 12 February 2000, North Carolina Highway Patrolman C.P. Olive (Olive) stopped defendant, Howard Lyle, who was driving on a public street without a seat belt. Defendant pulled into a parking lot across the street from his business. Trooper Olive approached defendant's vehicle and "noticed an odor of alcohol" about defendant's person. After giving defendant an Alcosensor test, Trooper Olive arrested defendant for driving while impaired and driving without a seat belt fastened. Trooper Olive placed defendant in the patrol vehicle to transport defendant to the Law Enforcement Center for an Intoxilyzer test. Defendant's wife, who was working at the business, came outside to the patrol car. Trooper Olive informed defendant's wife that he was taking defendant to the Law Enforcement Center and did so.
Defendant was later convicted of all charges in district court. Thereafter, defendant appealed to the superior court. Defendant moved to suppress the Intoxilyzer test and have his case dismissed on the grounds that he was denied access to a witness to observe his Intoxilyzer test in violation of N.C. Gen. Stat. § 20- 16.2(a)(6) (2001). Defendant pled guilty to the crime of driving while impaired after the court denied his motion to suppress the Intoxilyzer test at a pretrial conference. As part of the plea arrangement, defendant preserved his right to appeal the denial of this motion pursuant to N.C. Gen. Stat. § 15A-979(b) (2001); State v. Brown, 142 N.C. App. 491, 543 S.E.2d 192 (2001). Defendant appeals from the denial of his motion to suppress.
The trial court's findings with respect to defendant's motion to suppress are as follows:
14. Trooper Lyle arrived at the LEC before Mrs. Lyle, and parked his patrol car in the LEC "sally port."
15. When Mrs. Lyle arrived at the LEC, she parked outside the "front" entrance, and walked around to the sally port.
16. Mrs. Lyle saw that the sally port door was closed and that a patrol car was parked inside.
17. Mrs. Lyle entered the "front" door and spoke with a dispatcher for the Ashe County Sheriff's Department.
18. Mrs. Lyle told the dispatcher that she was there to see the defendant.
19. The dispatcher told Mrs. Lyle that her husband was "being processed," and that she could see him after processing.
20. The dispatcher told Mrs. Lyle that she could wait in the area outside the dispatch office, but Mrs. Lyle felt cold there and told the dispatcher that she would sit in her vehicle, which she did.
21. Trooper Olive read the defendant his Intoxilyzer rights at approximately 6:58 p.m. on February 12, 2000.
22. After hearing those rights, the defendant attempted to telephone an attorney, John Kilby, but was advised that Mr. Kilby was out of town.
23. The defendant then attempted to telephone his wife, telling Trooper Olive that he wanted her to be a witness to the Intoxilyzer test.
24. The defendant was unable to locate Mrs. Lyle by telephone, did speak by telephone with an employee of his business, but did not request that employee come to the LEC to witness the test.
25. At some point before the test was administered, Trooper Olive spoke by telephone with someone, and after the conversation told the defendant that Mrs. Lyle was not present.
26. Neither Trooper Olive nor anyone at the LEC attempted to locate Mrs. Lyle, or to invite her into the Intoxilyzer room at the LEC, for the purpose of allowing her to witness the Intoxilyzer test.
27. At least once after she had initially left the LEC to sit in her vehicle, Mrs. Lyle re-entere
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