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State v. Lewis11/20/2001
Appeal by defendant from judgment entered 30 July 1999 by Judge L. Oliver Noble, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 18 September 2001.
Defendant appeals his conviction for driving while impaired. The State's evidence tended to show the following. On 7 February 1998, defendant, a Miami, Florida police officer, was traveling north on N.C. 19/23 in Buncombe County when he was stopped by Officer Barry Jarrett of the North Carolina Department of Motor Vehicles. Officer Jarrett had observed the defendant speeding and almost striking Officer Jarrett's vehicle.
After stopping the defendant, Officer Jarrett observed that the defendant's eyes were bloodshot, his face was flushed, he had an odor of alcohol about him, his speech was slurred and he had difficulty keeping his balance. Defendant told Officer Jarrett that he had consumed a couple of beers over dinner. Officer Jarrett attempted to administer an alcosensor test but it failed to produce any results. Based on his observations, Officer Jarrett placed the defendant under arrest for driving while impaired.
Trooper Timothy Jackson arrived at the scene, took the defendant into custody and transported him to the detention center. Trooper Jackson observed that the defendant was red faced, had red, glassy eyes, slurred speech, and had an odor of alcohol about him. At the detention center, the defendant's wallet and other personal effects were turned over to the jailer and he was taken to a room to be administered a breathalyzer test. Trooper Jackson read the defendant his rights, including "the right to call an attorney and select a witness to view for you the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of your rights." At 12:20 a.m., the defendant signed the form acknowledging that he had been advised of these rights.
Defendant did not attempt to make any telephone calls until twenty-nine minutes had elapsed. He then attempted to call the Fraternal Order of Police in Florida or the Police Internal Affairs Office in Miami. All of his attempts were unsuccessful. A police officer in the detention center gave him the telephone number of the North Carolina Chapter of the Fraternal Order of Police but he was unable to make contact. During this time, the defendant requested his wallet which he said contained local telephone numbers of family and friends whom he wished to call. However, his wallet and personal effects were not returned until he was released.
When the defendant was offered the breathalyzer test, he refused to take it. He was then given his Miranda warnings but he refused to answer any further questions. Trooper Jackson took the defendant before Magistrate Jan Alexander for a determination of conditions of pre-trial release. She advised the defendant of his rights including the right to communicate with counsel, family, and friends; however, the defendant did not ask the magistrate for his wallet. Defendant posted bond and was released later that morning. Magistrate Alexander testified at the trial as to the defendant's appearance and his impairment.
Defendant's evidence tended to show that his wallet and personal effects were taken when he was brought into the detention center. He was placed in a holding cell; however, he was not given his wallet which contained the local telephone numbers he needed to call people to come to the detention center to post his bond and view his condition.
Defendant first assigns as error the denial of his motion to dismiss for failure to afford him the opportunity to contact witnesses and communicate with counsel, family, and fri
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