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Mercer v. Howard12/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Richard Bryan Mercer ("petitioner") appeals from a judgment entered 15 June 2004 affirming the Department of Motor Vehicles's ("DMV") suspension of petitioner's license. For the reasons stated herein, we affirm the judgment.
The evidence tends to show that on the morning of 24 February 2002 at approximately 2:00 a.m., Corporal Allen Holland ("Corporal Holland") of the Kill Devil Hills Police Department observed a gold-colored Chevrolet sport utility vehicle ("SUV") stopped at an intersection on Highway 158. Corporal Holland turned around and returned to Highway 158 about twenty seconds later. He observedthat the SUV was still sitting at the intersection, although there was no other traffic on the road. The SUV then drove away from the stop sign, and Corporal Holland followed.
Corporal Holland observed the SUV make a wide right turn and pull into the inside lane. Corporal Holland noted that the speed of the vehicle was increasing, and used radar to determine that the SUV was traveling at fifty-eight miles per hour ("mph") in a fifty mph zone. Corporal Holland also observed the SUV weaving in its lane of travel and changing lanes without signaling. After following the SUV through several turns leading back to Highway 158, Corporal Holland activated his blue lights and stopped the SUV on a side street.
Petitioner, the driver of the SUV, produced a driver's license for Corporal Holland, but did not have his registration. Corporal Holland noticed a strong odor of alcohol emanating from the vehicle, and observed that petitioner's eyes were red and glassy and that petitioner had a strong odor of alcohol on his breath. When asked how much he'd had to drink, petitioner responded, " ot much." Corporal Holland noted that petitioner's speech was slurred as he continued to speak with petitioner.
Corporal Holland then attempted to administer several simple sobriety tests (physical tests to allow assessment of petitioner's level of intoxication without the use of chemical analysis). Although petitioner indicated that he could perform the sobriety tests, he refused to attempt the requested acts. Corporal Hollandalso asked petitioner if he would submit to an alcosensor portable breath test, but petitioner failed to respond.
After instructing petitioner to exit the SUV, Corporal Holland conducted a horizontal gaze nystagmus test and once more noted the redness of petitioner's eyes. Petitioner was again asked to perform a sobriety test, recitation of the alphabet. Petitioner indicated that he could, but did not complete the test. Petitioner was also instructed on how to perform a sway test and was asked to touch his finger to his nose. Petitioner was unsuccessful at passing either test.
Corporal Holland placed petitioner under arrest for driving while impaired. Petitioner asked if he could call his son after being placed in the patrol car, and was told that he could make the call when they arrived at the station, because he was already in handcuffs. Petitioner was read his rights by Corporal Holland after arriving at the police station, and was provided with a written copy of his rights pursuant to N.C. Gen. Stat. § 20- 16.2(a). Petitioner attempted unsuccessfully to contact his son twice.
Officer Keith Standle ("Officer Standle") entered the chemical analysis area to complete some paperwork. Petitioner began to speak to Officer Standle and asked him to serve as a w
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