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State v. Ellenberg6/4/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
On 18 July 2000, defendant was found guilty of impaired driving in Mecklenburg County District Court. He then appealed his conviction to the superior court. On 17 November 2000, defendant filed a motion to dismiss pursuant to N.C. Gen. Stat. § 15A-954 (1999), N.C. Gen. Stat. § 15A-511 (1999), and State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). Judge Ola M. Lewis heard the motion on 30 January 2001 and denied it in an order entered 9 February 2001. A jury subsequently found defendant guilty of driving while impaired, and the trial court imposed a suspended sentence of thirty days. At the hearing on defendant's motion to dismiss, the following evidence was presented: At 5:50 p.m. on 21 March 2000, Trooper James R. Pickard, III, charged defendant with the offense of driving while impaired and transported him to the Arrest Processing Center at the Mecklenburg County Jail. Trooper Pickard advised defendant of his rights with respect to chemical analysis, and defendant elected not to request a witness for chemical testing. Defendant did call his wife after 6:29 p.m. to advise her of his arrest and his potential need for a bond to secure his release. He submitted to chemical analysis of his breath at 6:51 and 6:52 p.m., which revealed an alcohol concentration of 0.08.
Defendant's wife arrived at the jail at approximately 7:15 p.m. Deputies took defendant for fingerprinting at 7:20 p.m., but the fingerprinting machine was not operating correctly. Defendant was next taken to the image capturing machine at 7:26 p.m., then to the Magistrate's Hall at 7:32 p.m. Defendant's wife, after waiting in line for about forty minutes following her arrival, asked about defendant's status at the magistrate's window. She was advised that they did not have any paperwork for defendant and that she would have to wait. His wife inquired a second time approximately one hour later at the magistrate's window. She was advised that the fingerprinting machine was down and that she would be notified when defendant was returned to the Magistrate's Hall from processing.
Defendant's paperwork, which was necessary for processing, arrived at the Magistrate's Hall at 8:44 p.m. He was returned tothe fingerprint area to be reprinted at 9:05 p.m. The magistrate entered a release order at 9:08 p.m., and defendant was released at 9:20 p.m. on an unsecured bond. Defendant testified he did not seek further testing upon his release because he believed he was sober and further testing would not be of any benefit. His wife testified she thought defendant had no evidence of impairment at the time of his release.
Deputy Ronald Hill testified it was jail policy that inmates were not permitted to see visitors in the bonding room until after the magistrate had seen the inmates. His review of the logbook at the Arrest Processing Desk did not reveal a signature from defendant's wife to indicate she had inquired there about defendant's status. There was no evidence that defendant had expressed a desire for further testing, and he did not seek further testing upon his release.
After making findings of fact in accordance with the preceding evidence, the trial court concluded that " efendant has been unable to show any constitutional violation or any statutory violation based upon the events surrounding his arrest and subsequent release at the Me
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