Mar 28, 2012 | DUI & DWI, Uncategorized
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing as much information as possible to new clients seeking to learn what they are facing after being charged with DWI. As you will find out, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. We would welcome an opportunity to help you during this critical time in your life. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, please visit our firm website at www.rjrlaw.com.
Here is the seminal case relating to your rights regarding checkpoints in North Carolina. In this case, the defendant clearly saw the checkpoint ahead and took aggressive steps to avoid the police. Accordingly, the NC Supreme Court ruled his arrest was separate and apart from the checkpoint as the officer witnessed bad driving and pursued him independently. Much closer cases involve situations where a driver sees “blue lights” ahead and turns around to avoid what is believed to be an accident. Can the police come chase you down under this scenario? The answer now is “yes.” However, there are some interesting caveats found in other NC cases which we will be posting in subsequent blogs. For now, read the case below for a glimpse of how judges evaulate the various issues presented with police stops and checkpoints.
STATE v. FOREMAN
STATE of North Carolina v. Karen Seagle FOREMAN.
No. 291PA99.
— May 05, 2000
Michael F. Easley, Attorney General, by Jonathan P. Babb, Assistant Attorney General, for the State-appellant and -appellee.
Ward, Potter & Brown, P.A., by William F. Ward, III, New Bern, for defendant-appellant and -appellee.
On 16 November 1996, defendant was arrested for driving while impaired (DWI), possession of drug paraphernalia and possession of cocaine. Defendant was subsequently indicted for the DWI charge. On 16 September 1997, defendant was found guilty of DWI in District Court, Craven County, and gave notice of appeal to the superior court. On 12 February 1997, defendant filed a motion to dismiss the charge because there was no probable cause sufficient to justify the stop of her vehicle or, in the alternative, to suppress any evidence obtained from the stop of defendant’s vehicle. The trial court denied defendant’s motion to dismiss or to suppress, and defendant was tried before a jury at the 23 February 1998 Criminal Session of Superior Court, Craven County. The jury found defendant guilty of DWI. On 25 February 1998, the trial court, inter alia, sentenced defendant to a suspended sentence of sixty days in jail with unsupervised probation for two years and revoked her license for one year. Defendant appealed to the North Carolina Court of Appeals.
On appeal, the Court of Appeals found no error. State v. Foreman, 133 N.C.App. 292, 515 S.E.2d 488 (1999). In support of its decision, the Court of Appeals concluded that it was not constitutionally permissible for an officer to stop a vehicle which had made a legal turn away from a posted DWI checkpoint. Although we disapprove of the Court of Appeals’ conclusion that a legal turn away from a DWI checkpoint, upon entering the checkpoint’s perimeters, cannot justify an investigatory stop, we find no error in defendant’s conviction. Accordingly, we affirm the decision of the Court of Appeals as modified herein.
The State’s evidence tended to show that during the early morning hours of 16 November 1996, officers from the New Bern Police Department were conducting a “DWI Checkpoint” on Neuse Boulevard in New Bern, North Carolina. Notice signs stating that there was a “DWI Checkpoint Ahead” were posted approximately one-tenth of a mile prior to the stop. Officer Doug Ipock was in a police cruiser parked close to the checkpoint’s perimeter. His assigned task was to pursue any and all vehicles which appeared to attempt to avoid the checkpoint by turning around or away from it and to determine the basis for such avoidance.
At approximately 2:00 a.m., Officer Ipock observed a small red vehicle traveling on Neuse Boulevard towards the checkpoint. Immediately prior to passing the checkpoint’s sign giving notice of the checkpoint, the vehicle made a quick left turn onto Midgette Avenue. Officer Ipock then followed this vehicle and remained approximately thirty to forty yards behind it. Officer Ipock continued to observe the vehicle until it made a second abrupt left turn onto Taylor Street. At this point, Officer Ipock lost sight of the vehicle. After continuing a short distance up and then back down Taylor Street, Officer Ipock ultimately found the vehicle parked in a residential driveway on Taylor Street. The car’s lights and ignition were off, and its doors were closed. Officer Ipock directed his bright lights onto the vehicle and also turned on his “take-down lights,” thereby enabling the officer to see that people were bent or crouched down inside the car. At this point, the officer radioed for backup and remained in his vehicle until backup arrived, approximately two minutes later. The officer observed that the occupants remained bent or crouched down and that they did not change positions in the vehicle.
Once backup arrived, Officer Ipock approached the vehicle and saw that defendant was sitting in the driver’s seat, with the keys still in the ignition. Officer Ipock testified that there were several open containers of alcohol in the vehicle and that the vehicle emitted a “strong odor of alcohol.” Additionally, the officer testified that defendant had a strong to moderate odor of alcohol about her person once she exited the vehicle and that she was unsteady on her feet. The officer’s observations were admitted into evidence.
Defendant contends that the Court of Appeals erroneously upheld her DWI conviction because the evidence derived from Officer Ipock’s observations was inadmissible since his observations were the result of an invalid stop and seizure. Specifically, defendant argues that at the time she made the legal left turn, just prior to entering the DWI checkpoint, Officer Ipock did not have a reasonable or articulable suspicion of criminal activity, and therefore he had no legal basis to stop her. For the reasons discussed herein, we conclude that the Court of Appeals correctly determined that the arresting officer, under the totality of the circumstances, had a reasonable, articulable suspicion that defendant was engaged in criminal activity prior to any seizure.
This Court has recently reaffirmed the long-standing rule that “[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). “ ‘[T]he police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ ” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). In the instant case, the officer observed a “quick left turn” away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of its presence. However, Officer Ipock did not stop defendant’s vehicle once it turned away from the checkpoint. In fact, we cannot conclude that Officer Ipock “stopped” defendant’s vehicle at any point. Defendant voluntarily parked in a residential driveway and remained hidden in the car until Officer Ipock approached the vehicle. Therefore, defendant was not “seized” by the police officer until at least that point. Based upon that series of incriminating circumstances, we conclude that the Court of Appeals correctly determined that Officer Ipock observed sufficient activity to raise a “reasonable and articulable suspicion of criminal activity.” Foreman, 133 N.C.App. at 298, 515 S.E.2d at 493.
Although defendant in the case sub judice was not stopped because of her legal turn, or at all by the arresting officer, the Court of Appeals stated:
[A] legal left turn at the intersection immediately preceding a posted DWI checkpoint, without more, does not justify an investigatory stop. We emphasize, however, that it is constitutionally permissible, and undoubtedly prudent, for officers to follow vehicles that legally avoid DWI checkpoints, in order to ascertain whether other factors exist which raise a reasonable and articulable suspicion that an occupant of the vehicle is engaged in criminal activity․ Thus, if [d]efendant was seized solely based on a legal left turn preceding the DWI checkpoint, that seizure was unconstitutional.
Id. at 296, 515 S.E.2d at 492. For the reasons discussed herein, we disagree and clarify this language.
Although a legal turn, by itself, is not sufficient to establish a reasonable, articulable suspicion, a legal turn in conjunction with other circumstances, such as the time, place and manner in which it is made, may constitute a reasonable, articulable suspicion which could justify an investigatory stop. As the United States Supreme Court recently stated in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), “flight-wherever it occurs-is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at —-, 120 S.Ct. at 676, 145 L.Ed.2d at 576.
Further, the United States Supreme Court has stated:
No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion․
Conversely, the weight bearing on the other scale-the measure of the intrusion on motorists stopped briefly at sobriety checkpoints-is slight.
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2486, 110 L.Ed.2d 412, 420-21 (1990). Therefore, the United States Supreme Court held that DWI checkpoints are constitutional if vehicles are stopped according to a neutral, articulable standard (e.g., every vehicle) and if the government interest in conducting the checkpoint outweighs the degree of the intrusion. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412.
Section 20-16.3A of our General Statutes governs the establishment, organization and management of impaired driving checkpoints and sets forth the bases for “stopping vehicles” at any such checkpoint. That section provides:
A law-enforcement agency may make impaired driving checks of drivers of vehicles on highways and public vehicular areas if the agency:
(1) Develops a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.
(2) Designates in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests. The plan may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test.
(3) Marks the area in which checks are conducted to advise the public that an authorized impaired driving check is being made.
N.C.G.S. § 20-16.3A (1999).
There is no dispute that the DWI checkpoint in the case sub judice met all the statutory requirements for an impaired driving checkpoint. The perimeters of the checkpoint were marked with signs stating that there was a DWI checkpoint ahead, and the signs were posted approximately one-tenth of a mile prior to the actual stop. The checkpoint was established with the intent to stop every vehicle briefly and to check for impaired drivers traveling on Neuse Boulevard within the vicinity of the checkpoint. It is obvious that a law-enforcement agency cannot “make impaired driving checks of drivers of vehicles on highways” unless such vehicles can be stopped. Certainly, the purpose of any checkpoint and the above statute would be defeated if drivers had the option to “legally avoid,” ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters. Further, it is clear that the perimeters of the checkpoint or “the area in which checks are conducted” would include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint. Therefore, we hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Our state’s interest in combating intoxicated drivers outweighs the minimal intrusion that an investigatory stop may impose upon a motorist under these circumstances. We therefore conclude that the Court of Appeals correctly found no error in defendant’s conviction, and we affirm the decision of the Court of Appeals as modified herein.
MODIFIED AND AFFIRMED.
In this case, the Court of Appeals held that the facts available to Officer Ipock before defendant was seized were sufficient to raise a reasonable and articulable suspicion of criminal activity and that the trial court did not err by denying defendant’s motion to suppress. I agree. The majority modifies the Court of Appeals’ opinion in order to “disagree [with] and clarify” the Court of Appeals’ statement that a legal left turn at the intersection immediately preceding a posted DWI checkpoint does not, without more, justify an investigatory stop. I would affirm the decision of the Court of Appeals without modification.
The key in the Court of Appeals’ language is the phrase “without more.” Here, as the Court of Appeals indicated, there was more than the left turn which justified the seizure. When Officer Ipock located the vehicle within seconds after it turned onto Taylor Street, the vehicle’s engine was not running, the lights were off, and the occupants were crouched down in the dark. These additional factors were sufficient to raise a reasonable and articulable suspicion of criminal activity before defendant was seized by Officer Ipock.
The Court of Appeals emphasized that it was not only constitutionally permissible, but prudent, for officers to follow vehicles that avoided the DWI checkpoint in order to ascertain whether other factors raised a reasonable and articulable suspicion of criminal activity. However, there is a difference between stopping a vehicle and simply following it. Reasonable and articulable suspicion is necessary for an investigatory stop, but unnecessary to justify following a vehicle. While mere avoidance of a DWI checkpoint may prompt law enforcement officers to follow a vehicle, it does not, alone, give rise to a reasonable and articulable suspicion of criminal activity.
I would add that if a systematic plan for an impaired driving checkpoint pursuant to N.C.G.S. § 20-16.3A provides for stopping every car that turns off the highway within the perimeters of the checkpoint, then it is unnecessary to justify such a stop on the basis of reasonable and articulable suspicion. In such case, the stop is based on the systematic plan rather than the discretion of the officer or an articulable suspicion of criminal activity. However, as the Court of Appeals stated, avoidance of a posted DWI checkpoint, “without more, does not justify an investigatory stop.”
LAKE, Justice.
Mar 27, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
There has been a new law passed for motorcycle safety which increases the fines for car drivers who pull out or cross over into the path of a motorcyclist. We know how dangerous most drivers are when it comes to motorcycles. Despite headlights and loud pipes, drivers routinely cause a real danger to motorcyclists. Sadly, most serious motorcycle accidents occur due to the fault or negligence of other vehicle drivers not paying attention. If you or your family member have been in a car-motorcycle crash, call our firm to see what can be done to help.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. And most recently, Mr. Reeves has been included in the SC Super Lawyers for 2012. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
North Carolina Motorcycle Safety Act Now Law
As of December 1, 2011, the North Carolina Motorcycle Safety Act went into effect. The new law seeks to protect motorcyclists across the state from unsafe movements by other vehicles on the roadway. Now, drivers who make unsafe movements around a motorcycle which force it to unsafely change lanes or run off the road will be fined $200. If the unsafe movements result in a accident or personal injury of the motorcyclist, the driver will be fined $500. This law is certainly a positive step, and we appreciate the focus on this issue by the legislature. However, a fine is simply not going to mean much if the motorcyclist is struck or run off the road. If really serious about motorcycle safety, the legislature should also consider additional penalties, such as community service or even jail time where injury occurs. For now, we will say “thank you” and hope it helps.
Mar 27, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This article below really accentuates how quickly bad accidents can happen reulting in serious injury or death. It starts with one driver who is not paying full attention to the road or is in a hurry and taking dangerous chances. Although we use the term “accident,” I always remind myself that there is really is no such thing. Accidents are almost always the result of making bad decisions, taking risks, and/or breaking safety rules. When you add a large commercial truck or tractor trailer to the mix, catastrophic loss can occur. When you and your family are on the road, always assume the worst in other people’s driving. Give yourself plenty of room between your car and traffic. And always be looking for an “escape” or “exit” should an accident occur in front of you. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
MT. PLEASANT, SC (WCSC) -The driver of a large dump truck was killed Tuesday morning after the truck collided with at least seven cars on Highway 17 in Mt. Pleasant. The major wreck killed a dump truck driver and shut down Highway 17 in both directions for most of the day.After striking that car, the dump truck plowed into six more vehicles in the northbound lane before hitting a tree in front of a pharmacy. The dump truck then caught fire, killing the driver, 73-year-old James Cook of Summerville. Autopsy results show that Cook died from injuries sustained in the accident.According to Mt. Pleasant police, the collision happened at 9:48 a.m. on Highway 17 North near the Mt. Pleasant Towne Centre. A large dump truck hit a vehicle at the intersection of Market Center Boulevard.Highway 17 has been shut down in both directions since 10 a.m. Traffic is being diverted off of Highway 17 onto Venning and Mathis Ferry Roads and the Isle of Palms Connector. The road will remain closed until at least 4 p.m., pending the conclusion of the accident investigation. Once the roadway is reopened, delays should still be expected.Mt. Pleasant Police are urging drivers to avoid the area. Drivers can take Hungryneck Boulevard, go around Lowes and then head toward the Rite Aid. Drivers can also use Longpoint Road or Rifle Range Road.Lorraine grant works in the area and saw the whole accident unfold.”I saw other people in other cars some of them were injured but other people jumped out of their car to make sure they were alright so I saw at least three people get pulled from their car someone was helping them out fo their car,” Grant said.The Mount Pleasant Police Department and the South Carolina Highway Patrol are conducting the investigation.Copyright WCSC 2011. All rights reserved.
Mar 26, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Honda and the National Highway Traffic Safety Administration have issued a recall alert for approximately 126,000 Goldwing motorcycles. The company has identified an issue with the motorbikes’ secondary brake master cylinders that may cause the rear brakes to drag, increasing the risk of a collision. Riding a motorcycle with a stuck rear brake may also generate enough heat to cause a fire.
According to Honda, the brake issue affects GL1800 Goldwing motorcycles of the 2001 through 2010 and 2012 model years.
In January, the company expects to being notifying affected Goldwing owners to bring their motorcycles to Honda dealers. Mechanics there will inspect and, if necessary, replace the secondary master cylinder free of charge.
For more information on the recall, which Honda has identified as S03, consumers can call Honda customer service (toll-free: 866-784-1870) or visit the NHTSA website: www.SaferCar.gov.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. And most recently, Mr. Reeves has been included in the SC Super Lawyers for 2012. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
Mar 25, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This article below really accentuates how quickly bad accidents can happen resulting in serious injury or death. It starts with one driver who is not paying full attention to the road or is in a hurry and taking dangerous chances. Although we use the term “accident,” I always remind myself that there is really is no such thing. “Accidents” are almost always the result of making bad decisions, taking risks, and/or breaking safety rules. When you add DUI and a large commercial truck or tractor trailer to the mix, catastrophic loss can occur. In this instance, an intoxicated driver apparently lost control and struck a semi truck. Her mistake in judgement will cost her dearly this time. When you and your family are on the road, you have to assume the worst in other people’s driving. Give yourself plenty of room between your car and traffic. And always be looking for an “escape” or “exit” should an accident occur in front of you. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
December 2nd, 2011 | Author: Truck360 Staff
BRASELTON, GA – A woman driving under the influence the wrong way on I-85 in Braselton, GA was critically injured after she crashed into two semi trucks and was ejected from her SUV on Friday, November 4, 2011.
Braselton is located in Barrow County, Gwinnett County, Hall County, and Jackson County, Georgia in the northeastern part of the state about 49 miles northeast of Atlanta.
The accident happened in Jackson County around 1:00 a.m. early Friday morning in the northbound lanes of I-85 near Highway 53 at Exit 129.
The driver of the SUV was identified as Linda Kay Corlew, 34 years old, from Buford, GA. Corlew attempted to drive southbound on the northbound lanes of the I-85 after entering the Interstate at Highway 53.
Corlew side-swiped the first 18 wheeler, then spun out of control and hit a Jeep Cherokee and a second tractor trailer. The SUV spun around again and then finally crashed into the front end of a Chevrolet van and was ejected from her Ford Explorer.
The Chevrolet van rolled over and landed on a cable guard rail. The accident also ruptured the fuel tank of the second big rig which caused a hazardous fuel spill. A Jackson County Hazmat team was called to the scene to contain the hazardous material spill. Fortunately no evacuations were ordered as a result of the spill.
Corlew was transported by ground ambulance to Northeast Georgia Medical Center in Gainesville where her condition was reported to be critical. The driver of the Chevrolet van plus a passenger from one of the semi trucks were also injured in the accident.
The driver of the Chevrolet van was identified as Shawn Olen McDowell, 30 years old, from Jefferson, GA. He was taken to Athens Regional Medical Center for treatment.
The northbound lanes of the Interstate were closed for about 4 hours while rescue crews, fire fighters, police and investigators worked the scene of the accident. Emergency responders were from the West Jackson Fire Department, the Georgia State Patrol, the Braselton Police Department, and Jackson County EMS. Traffic lanes on the Interstate were re-opened around 5:00 a.m.
Officials believe that alcohol was a factor in the accident. According to the Georgia State Patrol, Corlew was cited for a seat belt violation and charged with DUI as well as driving on the wrong side of the road.
Mar 25, 2012 | DUI & DWI, Uncategorized
The attorneys of Reeves, Aiken & Hightower, LLP, believe in providing as much information as possible to new clients seeking to learn what they are facing after being charged with DWI. As you will find out, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. We would welcome an opportunity to help you during this critical time in your life. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, please visit our firm’s website at www.rjrlaw.com.
STATE OF NORTH CAROLINA v. EDDIE GLENN BOWDEN, Defendant
NO. COA05-635
Filed: 6 June 2006
1. Search and Seizure–motion to suppress–checkpoint–reasonable articulable suspicion–investigatory stop
The trial court did not err in a habitual driving while impaired and driving with a revoked license case by denying defendant’s motion to suppress all evidence obtained as a result of an officer’s encounter with defendant, because: (1) even though the trial court failed to make findings of fact in connection with the denial of the motion to suppress, defendant did not present any evidence of his own and no apparent conflict arose from the State’s evidence which was comprised solely of the officer’s testimony; (2) defendant did not argue the pertinent checkpoint was unconstitutional, and thus, the trial court had no reason to address the issue and it will not be addressed for the first time on appeal; (3) whether the checkpoint complied with N.C.G.S. § 20- 16.3A is immaterial when the checkpoint was a driver’s license and registration checkpoint and not an impaired driving checkpoint; and (4) assuming arguendo that an investigatory stop occurred, the totality of circumstances justified the officer’s pursuing and stopping defendant’s vehicle to inquire as to why he turned away prior to the checkpoint including the late hour, the sudden braking of the truck when defendant crested the hill and could see the checkpoint, the abruptness of defendant’s turn into the nearest apartment complex parking lot, and defendant’s behavior in first backing the truck into one space, pulling out and proceeding toward the parking lot exit, and then reparking when he spotted the patrol car approaching him.
2. Jurisdiction_-superior court–habitual DWI a substantive offense–misdemeanor DWI–driving with revoked license
The superior court had jurisdiction to conduct a trial on defendant’s misdemeanor DWI and driving with a revoked license charges without a trial first in district court, because: (1) habitual impaired driving is a substantive offense, and not a status offense as defendant would prefer; (2) the mere fact that a statute is directed at recidivism does not prevent the statute from establishing a substantive offense; and (3) defendant concedes that if the habitual DWI statute creates a substantive offense, then the superior court possessed jurisdiction to try him on the misdemeanor offenses set out in the same indictment with the habitual DWI charge.
Appeal by defendant from judgment entered 8 December 2004 by Judge John O. Craig III in Guilford County Superior Court. Heard in the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.M. Alexander Charns for defendant-appellant.GEER, Judge.
Defendant Eddie Glenn Bowden appeals his convictions for habitual driving while impaired and driving with a revoked license. On appeal, defendant principally contends that the trial court erred in denying his motion to suppress. Although defendant argues that the police lacked reasonable articulable suspicion to stop him, the Supreme Court’s opinion in
State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000), addressing almost identical circumstances, holds otherwise. The trial court, therefore, properly denied defendant’s motion to suppress.
Facts
The State’s evidence tended to show the following facts. On the evening of 5 February 2003, the police were conducting a driver’s license checkpoint on Florida Street in Greensboro, North Carolina. Florida Street is a two-lane road that intersects with Holden Road at the bottom of a hill. The checkpoint was not visible to motorists approaching on Holden Road until after they crested the hill about 250 feet away. One police officer, Officer Goodykoontz, sitting in a patrol car, was assigned to identify drivers on Holden Road who might be trying to elude the checkpoint. At about 11:30 p.m., Officer Goodykoontz heard the sound of an engine revving loudly and then saw a pickup truck crest the hill on Holden Road and descend rapidly towards the checkpoint. As he watched, the truck braked hard, causing the front headlights to dip low. The truck then made an abrupt right-hand turn into the parking lot of the nearest apartment complex. Officer Goodykoontz followed in his patrol car with the blue lights turned off,arriving at the entrance of the parking lot approximately 30 seconds later.
Once he was in the parking lot, Officer Goodykoontz spotted a pickup matching the one he had just seen. As he approached in his patrol car, he saw the truck pull out of a parking space into which it had apparently backed, travel towards the parking lot’s exit, but then drive head first into a new parking space as the patrol car drew near. Officer Goodykoontz pulled his patrol car behind the truck and activated his blue lights. He walked up to the truck and asked the occupant for his driver’s license and registration. In response, defendant, who was the truck’s sole occupant, stated that another person named “Marcus” had been driving the truck, but that he had just left. Asked to explain further, defendant claimed that he had just come out of one of the apartments in the complex and that Marcus had asked him to drive the pickup to Marcus’ girlfriend’s apartment elsewhere in the complex. He stated that the girlfriend’s apartment was “around the corner, but he didn’t know which apartment.” As this conversation took place, Officer Goodykoontz noticed that defendant’s speech was slurred, his eyes were glassy and red, and he smelled of alcohol. The officer asked defendant to step out of the truck. When defendant complied, Officer Goodykoontz observed that defendant was unsteady on his feet and was wavering from side to side. In order to check defendant’s story, Officer Goodykoontz asked him to identify the apartment he had left when he went to move the truck for Marcus. Defendant then denied being inany apartment, claiming that he had reached the apartment complex on foot from a restaurant about two miles away.
When Officer Goodykoontz asked defendant how much he had had to drink, he replied that he had had “a few.” Officer Goodykoontz then asked defendant to step to the sidewalk so that he could perform field sobriety tests. At that point, defendant stuck out his hands towards the officer and said, “You might as well arrest me. I’m not doing any tests.”
Officer Goodykoontz arrested defendant for driving while impaired (“DWI”). He was transported to the police department, read his Miranda rights, and asked to take an Intoxilyzer test, which he refused. He was later indicted for DWI, habitual DWI under N.C. Gen. Stat. § 20-138.5 (2005), and driving with a revoked license under N.C. Gen. Stat. § 20-28(a) (2005). A jury convicted him of all three crimes, and the trial judge imposed a consolidated sentence of 24 to 29 months. Defendant filed a timely appeal.
Motion to Suppress
[1] Defendant first assigns error to the trial court’s denial of his motion to suppress all evidence obtained as a result of Officer Goodykoontz’ encounter with defendant. In reviewing a trial court’s ruling on a motion to suppress, we first determine whether the trial court’s findings of fact are supported by competent evidence. State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003). In this case, however, the trial court failed to make findings of fact in its ruling upon the motion tosuppress, an omission that defendant contends is reversible error.
When the trial court conducts an evidentiary hearing regarding the competency of the evidence, the trial court is required to make findings of fact if there is a conflict in the evidence. State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997, 121 S. Ct. 1131 (2001). When, however, there is no conflict in the evidence, findings are not required, although it is preferable for the trial court to make them. Id. In the event there is no conflict in the evidence and the trial court makes no findings, “‘the necessary findings are implied from the admission of the challenged evidence.'” Id. (quoting State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995)).
Here, defendant did not present any evidence of his own, and no apparent conflict arose from the State’s evidence, which was comprised solely of Officer Goodykoontz’ testimony. The trial court did not, therefore, commit reversible error by failing to make findings of fact in connection with the denial of the motion to suppress.
Defendant’s assignment of error regarding the merits of the motion to suppress states: “The trial court committed error by not granting defendant’s motion to suppress the stop of his vehicle on the grounds that the stop was without probable cause or reasonable articulable suspicion . . . .” In his brief, however, defendant argues first that the trial court erred in failing to make thefindings of fact required by State v. Rose, 170 N.C. App. 284, 291_93, 612 S.E.2d 336, 341, appeal dismissed and disc. review denied, 359 N.C. 641, 617 S.E.2d 656 (2005), in determining the constitutionality of a checkpoint. Defendant did not, however, argue before the trial court that the checkpoint was unconstitutional. The trial court, therefore, had no reason to address the issue. Further, because defendant did not argue the constitutionality of the checkpoint below, we do not address that question on appeal. State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (“[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.”).
Alternatively, defendant argues that the checkpoint violated N.C. Gen. Stat. § 20-16.3A (2005), which sets out the requirements for “impaired driving checks of drivers of vehicles on highways and public vehicular areas.” The State argues that the legality of the checkpoint does not matter in light of the fact defendant did not stop at the checkpoint. Since, however, the evidence in the record is undisputed that the checkpoint at issue was a driver’s license and registration checkpoint and not an impaired driving checkpoint, whether the checkpoint complied with N.C. Gen. Stat. § 20-16.3A is immaterial, and we need not address the State’s argument.
The final issue with respect to the motion to suppress is whether, under State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000), Officer Goodykoontz had a reasonable, articulable suspicion to stop defendant. Foreman“reaffirmed the long-standing rule that[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” Id. at 630, 527 S.E.2d at 923 (internal quotation marks omitted) (alteration original). To justify a stop, the officer “‘must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'” Id. (quoting State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143, 100 S. Ct. 220 (1979) ) (alteration original).
Foreman involved facts remarkably similar to those of this case. The police in Foreman were operating a DWI checkpoint in the middle of the night. They had posted signs warning of the checkpoint one-tenth of a mile prior to the actual stop, and they had an officer assigned to watch for vehicles that appeared to be avoiding the checkpoint. A small red car approached and made a quick, but legal, left turn immediately after passing the sign that warned of the checkpoint. The police officer began following the car, without attempting to stop it, and watched it make another quick left hand turn. He lost sight of it for a moment, and then found it parked in a residential driveway, with its lights and engine turned off and the doors closed. The officer turned on his bright lights and shined them on the car, which enabled him to see people crouching down in the car and not moving. When backup arrived, the officer approached the vehicle and observed open containers of alcohol. Upon investigating further, he found thatthe driver smelled of alcohol and was unsteady on her feet. She was subsequently convicted of DWI.
The Foreman Court first held that the officer did not stop defendant’s vehicle at any point because the defendant voluntarily parked her car and remained in the car until the officer approached. Id. at 630, 527 S.E.2d at 923. “Therefore, defendant was not ‘seized’ by the police officer until at least that point [when the officer approached the vehicle].” Id. See also State v. Johnston, 115 N.C. App. 711, 714, 446 S.E.2d 135, 138 (1994) (where defendant got out of his car and appeared unsteady, and officer asked why he turned off of the road prior to the license check, this Court noted that a “seizure does not occur simply because a police officer approaches an individual and asks a few questions. Communications between police and citizens involving no coercion or detention are outside the scope of the fourth amendment” (internal quotation marks and citation omitted)).
In this case, defendant contended at trial that the officer’s use of his blue lights and his parking of the patrol car so as to block defendant’s car resulted in a stop. Even if, however, we assume arguendo that a stop occurred, the remaining holding of Foreman compels the conclusion that the trial court properly denied the motion to suppress in this case.
Although the Supreme Court in Foreman had concluded that no stop occurred, it proceeded to reverse the Court of Appeals’ conclusion that the legal turn immediately preceding the checkpoint, without more, did not justify an investigatory stop. The Court stated: “[W]e hold that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.” Foreman, 351 N.C. at 632-33, 527 S.E.2d at 924 (emphasis added).
In this case, the totality of the circumstances justified the officer’s pursuing and stopping defendant’s vehicle to inquire as to why he turned away prior to the checkpoint. In addition to the fact of defendant’s legal turn immediately prior to the checkpoint, the following facts combined to allow Officer Goodykoontz to make a reasonable inquiry to determine whether defendant was trying to evade the checkpoint: (1) the late hour; (2) the sudden braking of the truck when defendant crested the hill and could see the checkpoint, to the point that the headlights dipped as the front of the truck dove towards the street; (3) the abruptness of defendant’s turn into the nearest apartment complex parking lot; and (4) defendant’s behavior in first backing the truck into one space, pulling out and proceeding towards the parking lot exit, and then re-parking when he spotted the patrol car approaching him. Under the totality of these circumstances, any investigatory stop that Officer Goodykoontz may have performed was proper. Therefore, the trial court correctly ruled that the evidence gleaned from theencounter between defendant and the officer should not be suppressed.
Defendant also contends that if the evidence from his encounter with Officer Goodykoontz had been suppressed, it would have been proper for the trial court to grant his motion to dismiss the charges for insufficiency of the evidence. Since we find that the evidence was properly admitted, we need not reach this argument. Defendant, we note, does not contend that his motion to dismiss should have been granted even in the event that Officer Goodykoontz’ testimony was properly admitted.
Jurisdiction
[2] Defendant’s final argument is that the superior court lacked jurisdiction to conduct a trial on defendant’s misdemeanor DWI and driving with a revoked license charges without a trial first in district court. Defendant contends that habitual DWI is a status and not a substantive felony offense and therefore, those misdemeanor charges were not properly joined for trial in superior court. See N.C. Gen. Stat. § 7A-271(a)(3) (2005) (providing that superior court has jurisdiction to try a misdemeanor charge if properly consolidated with a felony charge under N.C. Gen. Stat. § 15A-926 (2005)).
As defendant recognizes, this Court held otherwise in State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 612 (holding that a superior court erred in dismissing defendant’s habitual DWI charge for lack of jurisdiction), disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994). Defendant contends, however, that thesubsequent case of State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51, 123 S. Ct. 142 (2002), implicitly overruled Priddy because it described habitual DWI as a recidivist offense. One panel of the Court of Appeals may not, however, overrule another panel. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
In any event, Vardiman in fact reaffirms Priddy‘s holding that “[h]abitual impaired driving is a substantive offense[,]” not a status offense as defendant would prefer. Vardiman, 146 N.C. App. at 384-85, 552 S.E.2d at 700. The mere fact that a statute is directed at recidivism does not prevent the statute from establishing a substative offense. Defendant “concedes that if this Court determines that the habitual DWI statute creates a substantive offense, then the Superior Court possessed jurisdiction to try him on the misdemeanor offenses set out in the same indictment with the habitual DWI charge. No error.
Judges HUNTER and McCULLOUGH concur.
