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Charlotte DWI Lawyer – License Checkpoints – Held Constitutional to Enforce Traffic Laws

Under our Constitution, we have a 4th Amendment right to be secure in our person and property. What this right means is that police are not supposed to be able to randomly stop us and investigate potential crimes without a warrant or, at least, “reasonable suspicion.” Random “checkpoints” violate this fundamental right. Nevertheless, legislatures and courts around the country have contorted this right to now allow same in the interests of public safety. They have put a number of confusing and sometimes conflicting restrictions on police, but in the end, checkpoints have now been determined to be “constitutional” in their attempt to protect the public and enforce traffic laws. Below is the case in NC that discusses these various principles.

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 v. VEAZEY

STATE of North Carolina v. Thomas Marland VEAZEY.

No. COA09-566.

— December 08, 2009

 

 

 

Attorney General Roy Cooper, by Assistant Attorney General Tamara Zmuda, for the State.
The Dummit Law Firm, by E. Clarke Dummit, for defendant.

On 1 January 2006, defendant Thomas Marland Veazey was charged with driving without a valid license and driving while impaired (“DWI”) after being stopped at a driver’s license checkpoint. Defendant was found guilty of DWI in district court and appealed to superior court. Prior to trial, defendant moved to suppress all evidence obtained at the checkpoint, alleging that his detention at the checkpoint was unconstitutional. Following a hearing, the trial court denied the motion and defendant subsequently pled no contest to DWI at the 5 June 2007 criminal session of Stokes County Superior Court, reserving his right to appeal the denial of his motion. Defendant appealed to this Court. We remanded, instructing the trial court to make additional findings of fact and conclusions of law regarding the constitutionality of the checkpoint. See State v. Veazey, 191 N.C.App. 181, 662 S.E.2d 683 (2008). We also held that, in the event the trial court found the initial checkpoint was constitutional, the “facts provided a sufficient basis for reasonable suspicion permitting ․ further investigation and detention of [d]efendant.” Id. at 195, 662 S.E.2d at 692. On 13 March 2009, the trial court entered an order, with findings of fact and conclusions of law, denying defendant’s motion to suppress. Defendant again appeals. As discussed below, we affirm.

Facts

On 1 January 2006, North Carolina State Trooper F.K. Carroll and another law enforcement officer set up a traffic checkpoint just outside the city limits of Walnut Cove in Stokes County. Trooper Carroll’s purpose was to “to enforce any kind of motor vehicle law violations” he might encounter. Shortly thereafter, defendant approached the checkpoint and was stopped. Defendant produced a valid State of Washington driver’s license, although his car had North Carolina license plates. Trooper Carroll also detected a strong order of alcohol coming from the vehicle and noticed that defendant’s eyes were red and glassy. Trooper Carroll directed defendant to pull onto the shoulder and, in doing so, defendant ran over an informational sign. When asked whether he had been drinking, defendant responded that he had consumed several beers. After defendant registered two positive readings on Alcosensor tests, Trooper Carroll arrested him.

_

On appeal, defendant brings forward four assignments of error, contending the trial court erred in (I) making findings of fact not supported by competent evidence, (II) admitting evidence gained during a constitutionally unreasonable checkpoint, (III) admitting evidence gained at an unconstitutional checkpoint, and (IV) admitting evidence gained from a checkpoint that lacked a specific programmatic purpose. Finding no error in the trial court’s order, we affirm.

Standard of Review

“This Court’s review of a trial court’s denial of a motion to suppress in a criminal proceeding is strictly limited to a determination of whether the court’s findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court’s conclusions of law.” In re Pittman, 149 N.C.App. 756, 762, 561 S.E.2d 560, 565 (citation omitted), disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 123 S.Ct. 1799, 155 L.Ed.2d 673 (2003). “[I]f so, the trial court’s conclusions of law are binding on appeal.” State v. West, 119 N.C.App. 562, 565, 459 S.E.2d 55, 57, disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995). “If there is a conflict between the state’s evidence and defendant’s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.” State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982).

I

Defendant first challenges findings of fact 12, 14, 15 and 17, asserting that they are not supported by competent evidence. We disagree.

The challenged findings state:

12. In selecting this portion of Highway 311 for a license checkpoint, Trooper Carroll was aware of numerous violations of North Carolina Motor Vehicle law from traffic in that area including No Operator’s License, Driving While License Revoked, Inspection Violations, Expired Tags, and No Liability Insurance.

14. Trooper Carroll had been successful in the past with license checkpoints at this location, finding many violations.

15. Trooper Carroll’s focus in organizing this license checkpoint was motor vehicle violations and [he] testified repeatedly that the purpose of this license checkpoint was for the enforcement of motor vehicle law.

17. Resolving all conflicts in the testimony, the primary programmatic purpose of the checkpoint was to determine if drivers were duly licensed and observing the motor vehicle laws of North Carolina.

We begin by noting that defendant fails to cite any authority, either statutes or case law, in this portion of his brief, and we could dismiss this argument on that ground. See N.C.R.App. P. 28(b)(6) (2007); Sugar Creek Charter Sch., Inc. v. Charlotte-Mecklenburg Bd. of Ed., — N.C.App. —-, —-, 673 S.E.2d 667, 676 (2009). However, even if we reach the merits of his argument, defendant cannot prevail. In his brief, defendant acknowledges that Trooper Carroll testified to the facts summarized in findings of fact 12, 14 and 15. He then argues that they “are not supported by competent evidence as Trooper Carroll made statements that conflict with the findings in that his statements encompass more than is represented by the findings of fact.” (Emphasis added). Likewise, he contends that finding of fact 17 is erroneous because “[t]he primary purpose of the checkpoint was not merely to determine if drivers were duly licensed and observing motor registration laws. It was also set up to check for DWIs.” Thus, defendant does not argue that these findings are not supported by competent evidence, but rather disagrees with the trial court’s resolution of conflicts in the evidence. Where evidence is conflicting, it is for the trial court “to resolve the conflict and such resolution will not be disturbed on appeal.” Chamberlain, 307 N.C. at 143, 297 S.E.2d at 548. Findings 12, 14, 15 and 17 are supported by competent evidence. This assignment of error is overruled and the trial court’s findings of fact are binding.

II, III and IV

Defendant’s three remaining assignments of error and the corresponding arguments in his brief challenge the constitutionality of the checkpoint on various grounds. In evaluating the constitutionality of a checkpoint, a reviewing court must first determine the primary programmatic purpose of the checkpoint under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and if the purpose is valid, must consider whether the checkpoint was reasonable under the balancing test articulated in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Veazey, 191 N.C.App. at 185-86, 662 S.E.2d at 686-87.

In his brief, defendant essentially reargues his case for suppression of the evidence, an argument more properly addressed to the trial court. Neither his assignments of error nor the arguments in his brief specifically refer to or challenge any of the trial court’s conclusions of law; he also fails to argue that the conclusions are not supported by the findings of fact. Parts of defendant’s argument challenge a finding from the original order denying his motion to suppress, even though that order is not appealed from here. These arguments are clearly inapposite.

Defendant argues that the checkpoint did not meet the balancing test required under Brown. However, defendant acknowledges that the superior court here applied the Brown balancing test, but once again contends that it erred in “tak[ing] Trooper Carroll on his word with respect to some statements and not considering his other statements.” There is no error in the trial court’s so doing. Weighing the credibility of witnesses and resolving conflicts in their testimony is precisely the role of the superior court in ruling on a motion to suppress. Chamberlain, 307 N.C. at 143, 297 S.E.2d at 548. Defendant would have this Court reapply the Brown balancing test, but this is not our task. Having determined above that competent evidence supports the trial court’s findings of fact, our further review is limited to determining whether those findings support the trial court’s conclusions of law. In re Pittman, 149 N.C.App. at 762, 561 S.E.2d at 565. Defendant does not argue that any Brown-related conclusions are not supported by the trial court’s findings of fact.

Defendant also attacks the checkpoint here as permitting Trooper Carroll excessive discretion. He asks that we overrule “a string of poor decisions involving checkpoints for drivers’ licenses” from this Court as well the North Carolina Supreme Court, relief we could not grant even were we so inclined. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Even in making this misplaced argument, defendant concedes that the United States Supreme Court case on which he bases his argument has approved stopping every vehicle as one acceptable way of limiting officer discretion. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 674 (1979). Here, Trooper Carroll stopped every vehicle that approached the checkpoint.

Defendant having failed to argue that any particular conclusion of law is not supported by the findings, we could dismiss this portion of his appeal. However, even if we attempted to construct a proper appeal for defendant, each of the trial court’s conclusions of law is fully supported by the findings of fact.

The trial court’s order denying defendant’s motion to suppress contains the following conclusions of law:

1. That Trooper Carroll complied with the statutory requirements for conducting a license checkpoint.

2. That the primary programmatic purpose of the checkpoint was the enforcement of the State’s Motor Vehicle laws.

3. That the primary programmatic purpose of the license checkpoint was achieved systematically by stopping every vehicle and asking every driver for license and registration.

4. That the State has a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” 440 U.S. at 658, 99 S.Ct. 1391. City of Indianapolis v. Edmond, 531 U.S. 32, 39 [121 S.Ct. 447, 148 L.Ed.2d 333] (2000) (quoting Delaware v. Prouse, 440 U.S. 648 [99 S.Ct. 1391, 59 L.Ed.2d 660] (1979)).

5. That checkpoint stops are minimally intrusive, and are not subjective stops, like those arising from roving patrols, [and] checkpoints are viewed with less scrutiny than are roving patrols. State v. Mitchell, 358 N.C. 63, 66 [592 S.E.2d 543] (2004).

6. That the primary programmatic purpose of this license checkpoint was lawful.

7. That the license checkpoint was tailored to fit the primary programmatic purpose by having obtaining [sic] prior approval from a supervisor and by having selected a stretch of roadway where violations [of] motor vehicle law had been observed by the arresting officer and where arrests for Driving While Impaired had been made in the past.

8. That the license checkpoint did not place unreasonable interference with individual liberty or privacy by: notifying oncoming motorists of an approaching checkpoint; obtaining prior approval from a supervising officer; stopping every vehicle coming through the license checkpoint; making visible the signs of the officers’ authority.

9. That the stop and detention of the Defendant at the license checkpoint was not unreasonable and therefore valid under the Fourth Amendment of the United States Constitution.

10. That based on the totality of the circumstances Trooper Carroll lawfully obtained sufficient evidence to form a reasonable suspicion that the Defendant was committing the criminal offense of Driving While Impaired.

11. The parties have stipulated that this Order can be signed out of Term and out of Session.

Although not mentioned in his assignments of error, defendant argues in his brief that the checkpoint violated requirements of N.C. Gen.Stat. § 20-16.3A(a)(1) (2005) (since amended) because it lacked a “systematic plan” for stopping vehicles. However, finding of fact 3 states that the “checkpoint was organized pursuant to a predetermined plan[,]” and finding 10 states that “[t]he license check was conducted systematically, every vehicle was stopped, and every driver was asked to produce driver’s license and proof of registration.” These findings fully support conclusion 1, “[t]hat Trooper Carroll complied with the statutory requirements for conducting a license checkpoint.”

Conclusions of law 2, 6 and 7 concern the checkpoint’s programmatic purpose, which is the focus of defendant’s fourth argument and assignment of error. Defendant once again argues that Trooper Carroll gave conflicting testimony about his purpose in setting up the checkpoint and urges this Court to overrule the trial court’s resolution of same. This is not our role. See Chamberlain, 307 N.C. at 143, 297 S.E.2d at 548. Defendant fails to argue that these conclusions of law are unsupported by the trial court’s findings of fact. Defendant acknowledges that a checkpoint with a primary programmatic purpose of enforcing motor vehicle laws is permissible. In addition, findings 12, 14, 15 and 17, quoted supra, fully support the trial court’s conclusions that “the primary programmatic purpose of the checkpoint was the enforcement of the State’s Motor Vehicle laws” and that this purpose was lawful and the checkpoint was tailored to fit this purpose.

Nothing in defendant’s brief refers to or challenges conclusions of law 3, 4, 5, 10 or 11. We note that denominated conclusion 4 is simply a quotation from one of the primary cases upon which defendant relies and conclusion 5 is a statement of our State’s case law on checkpoint stops. Conclusion 10 holds that Trooper Carroll lawfully obtained sufficient evidence to create reasonable suspicion that defendant was driving while impaired. Conclusion 11 is a stipulation by the parties.

Conclusions 8 and 9 concern the reasonableness of the checkpoint, a determination made under Brown by weighing “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown, 443 U.S. at 51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362. The court’s findings and other conclusions indicate that the trial court considered these factors, concluding that the State has a strong interest in enforcing motor vehicle laws (findings 2, 12, 14, 15, 16 and 17, and conclusion 4), that the checkpoint was tailored to meet this purpose (findings 4, 7, 10-12, and 14-17, and conclusion 7) and that the checkpoint constituted a minimal intrusion on drivers’ liberty (conclusion 5). Thus, conclusions 8 and 9 are fully supported. These assignments of error are overruled.

AFFIRMED.

BRYANT, Judge.

Judges WYNN and McGEE concur.

 

Charlotte DWI Lawyer – DWI Checkpoints – More Frequent – More Arrests

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.

10 DWI arrests at northeast Charlotte checkpoint

By Steve Lyttle
Charlotte Observer

MORE INFORMATION

Ten motorists were arrested overnight at a DWI checkpoint in northeast Charlotte, according to Charlotte-Mecklenburg police.

Sgt. David Sloan said CMPD and officers from the Cornelius, Matthews, Mint Hill and Pineville police departments conducted the checkpoint from 11 p.m. to 3 a.m. in the 300 block of Eastway Drive. That is a short distance south of North Tryon Street.

In addition to the 10 arrests, police said they nabbed 21 people driving without a license and another 10 who were behind the wheel with a revoked license. In all, police said, they issued 62 charges and citations. And three people were arrested on outstanding warrants.

The other citations and charges:

Open container law violation: 4

Drug charges: 2

Under-age alcohol possession: 1

Other citations: 14

Arrest warrants: 3

Read more here: http://www.charlotteobserver.com/2012/01/27/2963741/10-dwi-arrests-at-checkpoint.html#storylink=cpy

Charlotte DWI Lawyer – DWI Checkpoints – Can You Leave Without Saying Goodbye

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.

Charlotte DWI Lawyer – Avoiding License Checkpoints – Totality of Circumstances Critical to Suppress Evidence

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.

 

Charlotte DWI Lawyer – Challenging Checkpoints – You May Not Have the Right?

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.

CHERYL LINDEMANN WHITE, Petitioner v. LYNDO TIPPETT, STATE OF NORTH CAROLINA, SECRETARY, DEPARTMENT OF TRANSPORTATION, Respondent

NO. COA07-70
Filed:  20 November 2007

1.    Searches and Seizures–traffic checkpoint–stop after evasion–constitutionality of checkpoint not in issue

Although petitioner (whose license had been suspended for refusing an intoxilizer test) argued that the trial court erred by concluding that a checkpoint was established constitutionally, petitioner was not stopped at the checkpoint and the validity of the checkpoint was not in issue.

2.    Search and Seizure–driving while impaired–reasonable grounds for stop

A Highway Patrol Trooper had reasonable grounds to believe that a driver had committed an implied-consent offense (driving while impaired) from a combination of the driver’s evasion of a checkpoint, the odor of alcohol surrounding the driver, and a brief conversation with the driver.

3.    Automobiles–intoxilizer test–waiting period for calling attorney–intent to call attorney–clear expression required

The thirty-minute grace period for calling an attorney before taking an intoxilizer test applies only where a petitioner intends to exercise her right to call an attorney and expresses that right clearly. Here, petitioner by her own admission gave no clear indication that she wanted to call an attorney and the officer was not required to wait the full thirty minutes before administering the test.

Appeal by petitioner from judgment entered 19 July 2006 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 August 2007.

The Law Office of David L. Hitchens, PLLC, by David L. Hitchens, for petitioner-appellant.Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryne E. Hathcock, for respondent-appellee.
HUNTER, Judge.
Cheryl White (“petitioner”) appeals from a judgment entered on 19 July 2006 sustaining the twelve-month suspension of her driving privileges. After careful review, we affirm.
On 29 April 2005, Trooper E. B. Miller of the North Carolina State Highway Patrol was in the area of East John Street and Interstate 485 in Mecklenburg County when he saw several police officers conducting a checkpoint, so he pulled over to assist them. At 12:25 a.m., petitioner approached the checkpoint in the westbound lane of John Street, which was unblocked by vehicles or officers. At this point only Trooper Miller and one other officer, a Matthews Police Department officer, remained at the checkpoint. The Matthews police officer indicated to petitioner to stop her car next to the front bumper of the police car in the median of the road. That officer then turned away to resume her examination of a driver whom she had just stopped in the eastbound lane.
Trooper Miller testified that he then began to walk toward petitioner’s car. For fifteen to twenty seconds, as he was “getting ready to walk around the patrol car” to speak with her, petitioner sat stopped in her car. At that point, before Trooper Miller reached her, she drove off down the road. Trooper Miller ran to his patrol car and pursued her.
As Trooper Miller followed, petitioner drove approximately one tenth of a mile down East John Street and turned into the driveway of her home. Trooper Miller stated that the speed limit is forty- five miles per hour at the spot where the checkpoint was located, then drops to thirty-five miles per hour between there andpetitioner’s home. He testified that in that tenth of a mile petitioner attained a speed of approximately forty miles per hour.
Trooper Miller followed petitioner into her driveway, where he found her still seated in the driver’s seat of the car. Trooper Miller asked her to exit the vehicle, noticed her eyes were glassy and red, and smelled the odor of alcohol. He then administered two Alco-sensor tests five minutes apart, and on each petitioner registered a .10. He then placed her under arrest and took her to the Matthews Police Department. There, he asked her to take a test on an intoxilizer; she agreed, but failed to follow his instructions on how to do so for several minutes, until the test ran out. This happened twice, at which point Trooper Miller marked her down as having willfully refused to take the test. Petitioner’s driving privileges were suspended by the North Carolina Division of Motor Vehicles for twelve months due to her willful refusal to submit to the intoxilizer test. She petitioned the Mecklenburg County Superior Court for review of this decision, and on 19 July 2006 the court upheld the suspension. Petitioner now appeals to this Court.
I.

“The scope of an appellate review of a trial court’s order affirming or reversing a final agency’s decision is governed by G.S. sec. 150B-52. This Court must determine whether the trial court committed any errors of law.”In re Appeal of Coastal Resources Comm’n Decision, 96 N.C. App. 468, 472, 386 S.E.2d 92, 94 (1989). Where, as here, “it is alleged that the agency’s decisionwas based on an error of law, then de novo review is required.” In re Appeal of Ramseur, 120 N.C. App. 521, 524, 463 S.E.2d 254, 256 (1995); see also Eury v. N.C. Employment Security Comm., 115 N.C. App. 590, 598, 446 S.E.2d 383, 388 (1994) (conducting de novoreview where “the assignments of error . . . presented errors of law”).

II.

Petitioner makes two related arguments as to her stop and arrest: First, that the checkpoint was unconstitutional, and second, that the officer lacked reasonable grounds to believe she had committed the offense for which she was arrested. We address each of these in turn.

A.

[1] Petitioner first argues that the trial court erred by concluding that the checkpoint at issue was established for the constitutional purpose of examining driver’s licenses and registrations. We disagree.

Petitioner’s argument on this point is rooted mainly in the case of State v. Rose, 170 N.C. App. 284, 612 S.E.2d 336 (2005). We considered the implications of Rose for the requirements for checkpoints in State v. Burroughs, 185 N.C. App. 496, 648 S.E.2d 561 (2007). There, we considered the same argument petitioner makes here: That the court did not inquire closely enough as to the primary programmatic purpose of the checkpoint. Petitioner’s argument is without merit.    This central holding of Rose and Burroughs concerns the constitutionality of certain types of checkpoints, and thus applies only where the petitioner or defendant has in fact been stopped at a checkpoint. Here, petitioner was not stopped at the checkpoint, and as such her argument based on these cases is irrelevant. While the validity of the checkpoint is not at issue here, petitioner’s avoidance of the checkpoint is relevant to her next argument, and as such we address it below.

B.

[2] Petitioner further argues that the trial court erred by concluding that the trooper had reasonable grounds to believe that petitioner had committed an implied consent offense.
We find a case cited by both parties, State v. Foreman, 133 N.C. App. 292, 515 S.E.2d 488 (1999), aff’d as modified, 351 N.C. 627, 527 S.E.2d 921 (2000) to be precisely on point. There, the defendant made a quick, legal left turn at an intersection where a “’DWI Checkpoint Ahead’” sign was displayed. Id. at 293, 515 S.E.2d at 490. An officer associated with the checkpoint noticed this and pursued the defendant, finding him still in his vehicle parked in a driveway. Id. at 293-94, 515 S.E.2d at 490-91. Once back-up arrived, the officer approached the car, found the defendant in the driver’s seat, and smelled the odor of alcohol. Id. at 294, 515 S.E.2d at 491.

We summarized the holding of Foreman in State v. Stone, 179 N.C. App. 297, 634 S.E.2d 244 (2006): Our Court . . . held that the facts available to the officer before the seizure were“sufficient to raise a reasonable and articulable suspicion of criminal activity.” Id. at 298, 515 S.E.2d at 493. Our Supreme Court affirmed our Court’s decision that the officer had reasonable suspicion of criminal activity, but held that the defendant was not seized until the officer approached the vehicle. Foreman, 351 N.C. at 630, 527 S.E.2d at 923. Id. at 303, 634 S.E.2d at 248. Finally, the Supreme Court concluded 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.

In the case at hand, as in Foreman, an officer pursued a person who had evaded — intentionally or by accident — a checkpoint and come to a stop in a residential driveway. The officer then approached the stopped car and spoke to the occupants. At that point, from a combination of the driver’s evasion of a checkpoint, the odor of alcohol surrounding the driver, and a brief conversation with the driver, the officer had reasonable grounds to believe that the driver had committed an implied-consent offense. See, e.g., State v. Tappe, 139 N.C. App. 33, 36, 533 S.E.2d 262, 264 (2000) (“[t]o justify a warrantless arrest, it is ‘not necessary to show that the offense was actually committed, only that the officer had a reasonable ground to believe it wascommitted’”) (citation omitted). As such, this assignment of error is overruled.

III.

[3] Finally, petitioner argues that she did not willfully refuse to submit to the intoxilizer prior to the expiration of the thirty-minute statutory grace period to obtain an attorney. This argument is without merit. Petitioner makes this argument based on N.C. Gen. Stat. § 20- 16.2(a)(6) (2005), which states: [B]efore any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person’s breath, who shall inform the person orally and also give the person a notice in writing that: (6) The person has the right to call an attorney and select a witness to view for him 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.

This statute lays out the four components of a “willful refusal”:
A “willful refusal” occurs whenever a driver “(1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.”
Mathis v. Division of Motor Vehicles, 71 N.C. App. 413, 415, 322 S.E.2d 436, 437-38 (1984) (quoting Etheridge v. Peters, Comr. of Motor Vehicles, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980)).

Petitioner admits in her brief that “it is not clear from the facts whether [she] wanted an attorney,” but then argues that she should have been given the full thirty minutes to decide whether she wanted an attorney. This argument is without merit. Only where a petitioner intends to exercise her rights to call an attorney and expresses those rights clearly to the officer does the thirty-minute grace period apply. See, e.g., McDaniel v. Division of Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989) (where defendant “gave no indication whatever that he intended to exercise his right to call a lawyer or have a witness present,” trial court’s conclusion that he willfully refused to take the breathalyzer was correct), cert. denied, 326 N.C. 364, 389 S.E.2d 815 (1990); State v. Buckner, 34 N.C. App. 447, 451, 238 S.E.2d 635, 638 (1977) (stating that statute does not require officer to wait thirty minutes to conduct breathalyzer test “when the defendant has waived the right to have a lawyer or witness present or when it becomes obvious that defendant doesn’t intend to exercise this right”). Petitioner in this case by her own admission gave no clear indication that she wanted to call an attorney, and therefore the officer was not required to wait for the full thirty minutes before administering the test. As such, we overrule this assignment of error.

IV.

Because the officer had reasonable grounds that petitioner had committed an offense and was not incorrect in administering the breathalyzer test before thirty minutes had expired, we affirm the decision of the trial court upholding the suspension of petitioner’s driving privileges.

Affirmed.

Judges WYNN and BRYANT concur.