 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Mercer v. Howard12/6/2005
itness to further sobriety tests. Petitioner did not request, however, that Officer Standle serve as a witness to his chemical analysis test, and Officer Standle did not agree to serve as a witness to any test. Corporal Holland asked Officer Standle to leave the room tocomplete his paperwork, which he did. After an observation period from 2:23 a.m. to 2:59 a.m., Corporal Holland requested petitioner take the chemical analysis test. Petitioner refused, stating that he did not trust the machine.
After the grant of a preliminary injunction staying revocation of petitioner's driving privileges pending a de novo hearing, the matter was heard in superior court on 10 May 2004. After hearing evidence, including petitioner's testimony, the trial court affirmed the DMV's suspension of petitioner's license and dismissed petitioner's petition for a permanent injunction to prevent DMV from revoking petitioner's driving privileges for his alleged willful refusal to submit to a chemical analysis. Petitioner appeals.
I.
Petitioner first contends the trial court erred in finding the charging officer had reasonable suspicion to stop petitioner's vehicle. We disagree.
"'A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause.'" State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97 (2002) (citation omitted). "'Probable cause is "a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity."'" Id. at 94, 574 S.E.2d at 97-98 (quoting State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167 (1999)). In State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128,132 (1999), our Supreme Court held that evidence that the defendant was exceeding the posted speed limit by seven mph in violation of N.C. Gen. Stat. § 20-141, as well as following another vehicle too closely, provided probable cause for the arresting officers to stop the vehicle.
Here, the record reveals that Corporal Holland, through the use of radar, determined that petitioner was traveling at a speed of fifty-eight mph in a fifty mph zone in violation of N.C. Gen. Stat. § 20-141 (2003). Corporal Holland also observed petitioner weaving within his lane of travel and changing lanes without signaling. Therefore, as the record reflects evidence of a readily observable traffic violation, exceeding the speed limit in violation of N.C. Gen. Stat. § 20-141, probable cause existed for Corporal Holland to stop petitioner's vehicle. We affirm the trial court's finding.
II.
Petitioner also contends that the trial court erred in finding the charging officer did not deny petitioner the right to have a witness present for his chemical analysis test. We disagree.
N.C. Gen. Stat. § 20-16.2 (2003) governs implied consent and right of refusal of a driver to chemical analysis. Under the statute, an individual must be informed both orally and in writing of their right to refuse testing, and of the resulting revocation of their licensure for twelve months by DMV as a result of that refusal. N.C. Gen. Stat. § 20-16.2(a)(1)(2). The statute further states: "The person has the right to call an attorney and selecta witness to view for him or her the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time when the person is notified of his or her rights." N.C. Gen. Stat. § 20-16.2(a)(6).
With regards to N.C. Gen. Stat. § 20-16.2(a), this Court stated in State v. Lloyd, 33 N.C. App. 370, 235 S.E.2d 281 (1977):
The purpose of the delay is to allow the defend
Page 1 2 3 4 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|