An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-1423
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA


      v.                                       Mecklenburg County
                                               No. 10 CRS 237504
AMY MOORE CLOER



      Appeal by defendant from judgment entered 24 May 2013 by

Judge Richard L. Doughton in Mecklenburg County Superior Court.

Heard in the Court of Appeals 24 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Arnold & Smith, PLLC, by             Laura M. Cobb,        for defendant-
      appellant.


      HUNTER, JR., Robert N., Judge.


      Amy Moore Cloer (“Defendant”) appeals from a judgment for

Driving     While     Impaired      (“DWI”).         Defendant      argues      that

Magistrate     Peters    violated    her    constitutional      rights    and    her

statutory rights under N.C. Gen. Stat. §§ 15A-501, 15A-511, and

15A-954 (2013) during her initial appearance at the Mecklenburg

County     Jail.        Specifically,      Defendant     contends:       (1)    that
                                             -2-
Magistrate Peters violated N.C. Gen. Stat. § 15A-511 when she

did   not   inform      Defendant       of    her     pretrial      rights;     (2)     that

Magistrate       Peters    did    not       provide      any    written      findings   for

setting a secured bond in violation of N.C. Gen. Stat. § 15A-534

(2013) and the Twenty-Sixth Judicial District’s Bail Policy; and

(3) that Defendant’s lengthy pre-trial confinement prevented her

from meeting with friends and family members who could have

observed her condition during her pretrial confinement.                                Thus,

Defendant contends that the magistrate’s errors were prejudicial

to her case, warranting a dismissal of the DWI judgment.                               After

review, we find no prejudicial error.

                          I. Facts & Procedural History

      On 4 August 2010, at 11:30 p.m., Officer Jeffery Baucom

(“Officer        Baucom”)        of     the        Charlotte-Mecklenburg              Police

Department received a dispatch call to respond to a traffic

accident    at    the     intersection        of    7th    Street      and    North   Tryon

Street    in     Mecklenburg      County.           At    the   time    Officer       Baucom

received the call, he was less than twenty-five yards from the

scene of the accident.                Officer Baucom also heard the accident

when it occurred and he responded on foot.                        Once Officer Baucom

arrived     at    the     scene,       he    called       for    emergency      personnel

assistance and started his investigation of the accident scene.
                                                -3-
During his investigation, Officer Baucom spoke with Defendant,

the driver of one of the vehicles involved in the accident.

While       speaking       with     Defendant,        Officer        Baucom   detected       a

moderate      smell    of    alcohol       coming       from    Defendant     and    noticed

Defendant’s red, glassy eyes.                     Upon further inquiry, Defendant

told Officer Baucom that she had been drinking earlier that day.

       After       Officer       Baucom    and    the    other       responding     officers

secured      the     accident       site,        Officer     Baucom      conducted        field

sobriety tests on Defendant.                     Officer Baucom administered the

horizontal gaze nystagmus test, the one-leg stand test, and the

walk-and-turn test.              During each test, Defendant exhibited signs

of     impairment      and       Officer    Baucom         determined      that     she    was

impaired      by    alcohol.         Officer       Baucom      placed    Defendant        under

arrest for DWI and transported her to the Mecklenburg County

Intake Center.          Before her processing took place, Defendant was

allowed to keep her credit card in order to post her bond.

       At    12:56     a.m.,      Officer       Baucom     advised      Defendant    of     her

rights before administering an intoxilyzer test.                              Pursuant to

N.C.     Gen.      Stat.     §    20-16.2        (2013),     Officer      Baucom     advised

Defendant of her right to call an attorney and her right to call

a witness to view the intoxilyzer test.                              Defendant signed an

intoxilyzer         rights        form    and     waived       her    statutory      rights.
                                         -4-
Officer Baucom administered two intoxilyzer tests of Defendant,

and the results of the two tests revealed that Defendant’s blood

alcohol level was 0.10.

    Thereafter,         Officer     Baucom      read   Defendant      her    Miranda

rights.     Defendant signed the Miranda rights form indicating

that she understood her rights at 1:23 a.m.                      After signing the

form, Defendant agreed to answer questions about the accident.

During questioning, Defendant stated that she started drinking

at 1:00 p.m. and that she consumed five beers and one or two

alcoholic beverages.          When asked if she was under the influence

of an alcoholic beverage, Defendant responded, “I guess so.”

    At 1:31 a.m., intake officers moved Defendant to a waiting

area where telephones were available to her.                      After a thirty-

minute wait, Magistrate Peters set Defendant’s conditions for

release.    The conditions for release allowed Defendant to secure

release in one of two ways: she could post a $500 secured bond

or she could obtain custody release to a sober licensed adult.

    After        the   conditions    for     release    were      set,   Magistrate

Peters    read    Defendant    the    provisions       of   an    Implied    Consent

Offense    Notice      form   pursuant     to   N.C.   Gen.      Stat.   §   20-38.4

(2013).    The form required Magistrate Peters to inform Defendant

of her rights to have witnesses observe her condition in jail,
                                         -5-
to have an additional chemical test administered, and to list

people that she wished to contact.               Defendant provided names and

numbers of three persons that she wanted to contact, but the

record   does    not    show    that   Defendant       contacted   any   of    these

persons.        Magistrate      Peters    and    Defendant    both    signed    the

Implied Consent form at 2:33 a.m.

    After       she    signed    the     form,    Defendant    waited    in    jail

reception for thirty-minutes before re-entering the magistrate’s

chambers.     During her wait, Defendant once again had access to

telephones.      At 3:03 a.m., Defendant met with Magistrate Peters

a second time, but it is unclear from the record what transpired

during   this    short    encounter.           After   her   second   appearance,

Defendant entered jail reception at 3:16 a.m.

    At 4:44 a.m., Defendant received a receipt for using the

Touch Pay machine to pay her bond.               Though the receipt read 3:44

a.m., Deputy James Ingram (“Deputy Ingram”), keeper of records

for the Mecklenburg County Jail, testified at trial that the

receipt was based on Central Time because the machine was owned

and operated by a company based in Texas.                    The jail’s finance

department received the secured bond amount of $500 at 5:31 a.m.

    At 6:42 a.m., jail staff notified Defendant that she met

the conditions of her release.              Due to the jail’s shift change
                                                 -6-
at 6:40 a.m., Defendant did not arrive to the release post until

7:17 a.m.        Officers released Defendant from custody at 7:22 a.m.

Although it is unclear at what time Defendant’s custody started

at    the   Mecklenburg            County       Jail,   Defendant    was      in     pretrial

confinement for a timespan between six hours and thirty-minutes

to eight hours.

       On 17 February 2011, the Mecklenburg County District Court

found Defendant guilty of DWI.                     After appealing to Mecklenburg

County Superior Court, Defendant filed a motion to dismiss the

DWI charge, alleging that Magistrate Peters violated her initial

appearance rights.                 During her motion hearing on 23 May 2013,

Defendant testified that she was told to remain seated and quiet

while waiting to speak with Magistrate Peters.                          Defendant stated

that during her appearance, Magistrate Peters informed Defendant

of her DWI charge and required Defendant to post a $500 bond.

She also testified that after speaking with Magistrate Peters,

she   was    moved       to    a    smaller      room   with   access    to    telephones.

Defendant stated that she was nervous and that she felt like she

needed      to    stay    seated       and      quiet    because    officers         took    an

individual away from the holding area after that person raised

concerns about the telephones not working properly.                                 Defendant

testified        that    she       tried   to    use    the   telephones      but    she    was
                                           -7-
unable to hear who she called.              Deputy Ingram testified that DWI

offenders are allowed to use telephones in the waiting area

before    and    after    their      initial      appearance.       Based     on   the

foregoing evidence, the superior court denied Defendant’s motion

to dismiss.

      Defendant’s      trial    began      on     23   May   2013   in    Mecklenburg

County Superior Court.              At trial, Defendant testified that she

tried to use the telephones in the jail reception area but she

was unable to contact anyone because the phones were not working

properly.       Defendant also testified that she attempted to use

her   credit    card     to   pay    her   bond    around    3:00   a.m.,    but   the

machine was temporarily shutdown.                  Defendant further testified

that she knew about bail bondsmen, but she did not attempt to

contact a bondsman in order to secure her release.                       After trial,

the jury reached a unanimous verdict, finding Defendant guilty

of DWI.     Judge Doughton sentenced Defendant to thirty days in

jail but suspended the sentence, placing Defendant on supervised

probation for twelve months.                 Defendant filed timely written

notice of appeal on 28 May 2013.

                  II. Jurisdiction & Standard of Review
                                               -8-
       As Defendant appeals from the final judgment of a superior

court, an appeal lies of right to this Court pursuant to N.C.

Gen. Stat. § 7A-27(b) (2013).

       On   appeal       from    a    trial    court’s      denial   of   a    motion   to

dismiss:

               the standard of review is whether there is
               competent evidence to support the findings
               and the conclusions. 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. Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351

(2001) (internal quotation marks and citations omitted).                                “If

the   findings      of    the    trial     court     are    supported     by   competent

evidence, they are binding on the appellate courts.”                            State v.

Bright, 301 N.C. 243, 254, 271 S.E.2d 368, 375 (1980).                                “Our

task is not to re-weigh the evidence before the trial court but

to    uphold    the      trial       court’s    findings     so   long    as   they     are

supported      by   competent          evidence,     even    if   there   also    exists

evidence to the contrary.”                State v. Daniel, 208 N.C. App. 364,

369, 702 S.E.2d 306, 309 (2010).

                                       III. Analysis

 A. Defendant’s Right to Communicate with Counsel and Witnesses
                                      -9-
    Defendant       argues   the    trial   court   erred   by    denying     her

motion    to    dismiss   because    the    magistrate   failed    to    inform

Defendant of her rights to communicate with counsel and friends

pursuant to N.C. Gen. Stat. § 15A-511(b).           We disagree.

    N.C. Gen. Stat. § 15A-511(b) provides: “The magistrate must

inform the defendant of: (1) The charges against him; (2) His

right    to    communicate   with   counsel   and   friends;     and    (3)   The

general circumstances under which he may secure release under

the provisions of Article 26, Bail.”

    In its order denying Defendant’s motion to dismiss, the

trial court made the finding that “the defendant signed the

Implied Consent Offense Notice and was notified of her charges

and her rights to obtain her own chemical test and to have

witnesses present at the jail.”               Provisions 4 and 5 of the

Implied Consent Offense Notice state:

               4. The [magistrate] informed the defendant
               in writing of the established procedure to
               have others appear at the jail to observe
               the defendant’s condition or to administer
               an additional chemical analysis.

               5. The [magistrate] required the defendant
               to list all persons the defendant wishes to
               contact and telephone numbers on a copy of
               this form.
                                      -10-
Defendant signed the form, indicating that she understood those

rights.      Defendant also listed three persons that she wanted to

contact on the Implied Consent form.

       In State v. Haas, 131 N.C. App. 113, 505 S.E.2d 311 (1998),

the defendant argued that he was prejudiced because the issuing

magistrate did not inform him of his right to contact family

members and friends.       Id. at 115, 505 S.E.2d at 312.            At trial,

the defendant testified that the magistrate informed him of his

access to a telephone, and that he signed a form certifying his

opportunity to contact witnesses.            Id. at 116, 505 S.E.2d at

313.    This Court held that the trial court’s finding — that the

magistrate did not commit an error — provided indirect evidence

that   the    magistrate   informed    the   defendant    of   his   right    to

communicate with counsel and friends.          Id.

       Here, as in Haas, Defendant signed a form notifying her of

her right to contact witnesses.          Based on Defendant’s entries of

persons to contact and her signature on the                Implied Consent

form, Defendant had knowledge of her right to contact witnesses.

For    the    foregoing    reasons,    the   Implied     Consent     form    put

Defendant on notice of her pretrial rights to communicate with

counsel and friends.

                    B. Pre-trial Release Procedures
                                   -11-
    Defendant argues that the trial court erred when it denied

her motion to dismiss because the magistrate failed to make

written findings and failed to follow the statutory pre-trial

release procedures.        We agree that the magistrate failed to

follow the statutory procedures, but we do not find that the

errors constitute irreparable prejudice.

    A   person   charged    with   a   noncapital    offense,   “must   have

conditions of pretrial release determined, in accordance with

G.S. 15A-534.”     N.C. Gen. Stat. § 15A-533(b) (2013).             According

to N.C. Gen. Stat. § 15A-534, a magistrate must impose one of

five conditions:

          (1) Release the defendant          on     his   written
          promise to appear.

          (2) Release the defendant upon his execution
          of an unsecured appearance bond in an amount
          specified by the judicial official.

          (3) Place the defendant in the custody of a
          designated person or organization agreeing
          to supervise him.

          (4) Require the execution of an appearance
          bond in a specified amount secured by a cash
          deposit . . . by a mortgage . . . or by at
          least one solvent surety.

          (5) House arrest with electronic monitoring.

The magistrate must release the defendant under conditions (1),

(2), or (3) “unless he determines that such release will not
                                 -12-
reasonably assure the appearance of the defendant as required;

will pose a danger of injury to any person; or is likely to

result in destruction of evidence, subornation of perjury, or

intimidation of potential witnesses.”        N.C. Gen. Stat. § 15A-

534(b).    When a magistrate determines which condition must be

imposed, he must      follow the procedure outlined in N.C. Gen.

Stat. § 15A-534(c).    The magistrate:

           must, on the basis of available information,
           take    into    account   the    nature    and
           circumstances of the offense charged; the
           weight    of   the   evidence   against    the
           defendant; the defendant's family ties,
           employment, financial resources, character,
           and mental condition; whether the defendant
           is intoxicated to such a degree that he
           would   be   endangered  by   being   released
           without supervision; the length of his
           residence in the community; his record of
           convictions; his history of flight to avoid
           prosecution or failure to appear at court
           proceedings; and any other evidence relevant
           to the issue of pretrial release.

N.C. Gen. Stat. § 15A-534(c) (2013).

    If    the   magistrate   determines   that   a   defendant   poses   a

danger to the public, then he must impose condition (4) or (5).

N.C. Gen. Stat. § 15A-534(d2)(1).         If the magistrate imposes

condition (4) or (5), the magistrate “must record the reasons

for so doing in writing to the extent provided in the policies

or requirements issued by the senior resident superior court
                                     -13-
judge pursuant to G.S. 15A-535(a).”                N.C. Gen. Stat. § 15A-

534(b) (emphasis added).

    N.C. Gen. Stat. § 15A-535(a) regulates the setting of bail

policies   for     each   judicial    district.          The   bail    policy    in

Mecklenburg County requires magistrates to place a letter code

justifying   the    requirement      of   a    secured    bond.       Defendant’s

condition of release        order does not contain any letter                code

justification for imposing the secured bond in violation of the

bail policy.

    In the present case, the magistrate set two conditions for

Defendant’s release: (1) custody release to a sober licensed

adult or (2) a secured bond in the amount of $500.                         Since

Magistrate Peters imposed a secured bond, she had to determine

that Defendant was a flight risk, that Defendant would destroy

evidence, or that Defendant posed a danger to the public.                       See

N.C. Gen. Stat. § 15A-534(b).                 There is no evidence in the

record that the magistrate made such a determination.                  Since the

magistrate failed to record the reason for setting Defendant’s

bond in writing, the magistrate violated N.C. Gen. Stat. § 15A-

534 and Mecklenburg County’s bail policy.
                                     -14-
    Defendant argues that the magistrate’s statutory violations

caused irreparable prejudice and she requests dismissal of the

DWI charge and judgment.        We disagree.

    “Before a motion to dismiss should be granted . . . it must

appear that the statutory violation caused irreparable prejudice

to the preparation of defendant’s case.”                 State v. Rasmussen,

158 N.C. App. 544, 549–50, 582 S.E.2d 44, 50 (2003) (internal

quotation marks and citations omitted).                “[P]rejudice will not

be assumed to accompany a violation of defendant’s statutory

rights, but rather, defendant must make a showing that he was

prejudiced in order to gain relief.”              State v. Knoll, 322 N.C.

535, 545, 369 S.E.2d 558, 564 (1988).

    In    State   v.    Gilbert,    85   N.C.   App.    594,   355    S.E.2d   261

(1987), the magistrate informed the defendant of his right to an

independent chemical test, but the defendant chose not to seek a

second test.      Id. at 597, 355 S.E.2d at 263.                  Moreover, the

defendant’s    brother    visited    the    defendant     shortly      after   his

intoxilyzer test.        Id. at 597, 355 S.E.2d at 264.                 The Wake

County    Superior     Court   dismissed    the   DWI    charge      against   the

defendant because the defendant alleged that the magistrate’s

failure to inform him of his rights warranted a dismissal of the

charge.    Id. at 594–95, 355 S.E.2d at 262.              The State appealed
                                               -15-
and this Court held that the defendant failed to show prejudice

because the defendant knew of his right to obtain an independent

chemical test and “there [was] nothing in the record to show

that defendant requested, or was denied, access to anyone.”                                  Id.

at 597, 355 S.E.2d at 264.

         In State v. Labinski, 188 N.C. App. 120, 654 S.E.2d 740

(2008), the defendant alleged that the magistrate denied her

access     to    family      and    friends         during    a     critical    time    of   her

pretrial confinement.                Id. at 125, 654 S.E.2d at 745.                          The

defendant was informed of her right to have witnesses present at

her intoxilyzer test, but she did not request a witness even

though four of her friends were present at the jail.                                    Id. at

128, 654 S.E.2d at 745.                  Additionally, the defendant saw that

her friends were present at the jail, but the defendant did not

ask to speak with them.                  Id.    The defendant also had access to

telephones       and       she    made    phone      calls        while   waiting      for   her

release.        Id.    This Court found that the magistrate violated the

defendant’s rights because there was no evidence that she would

be   a    danger      to    the    public      if    she     were    released    subject      to

conditions other than a secured bond.                        Id. at 127, 654 S.E.2d at

744–45.         However, we held that the magistrate’s error did not

rise to the level of irreparable prejudice because the defendant
                                           -16-
had   access     to    witnesses     but    she    chose   not    to     exercise    that

right.     Id. at 128, 654 S.E.2d at 745.

       Similar    to     Gilbert,      in    this     case,      Magistrate        Peters

notified     Defendant         of   her     right     to    have        an     additional

intoxilyzer      test     performed.          Defendant         signed       the   implied

consent form, indicating her knowledge of her rights, but there

is    no   evidence     that    Defendant     sought       to    have    another     test

administered.

       Similar    to    Labinski,     Defendant      had    access       to    telephones

before and after she met with the magistrate, and she had the

opportunity to contact witnesses.                   Labinski, 188 N.C. App. at

122, 654 S.E.2d at 743.             Even though there was evidence that the

phones were not working properly, there is no evidence that the

Mecklenburg County Jail staff or Magistrate Peters prevented her

from calling anyone and no evidence that the Jail staff caused

the phones to work improperly.

       Accordingly,      Defendant was not irreparably prejudiced in

the preparation of her defense.                   The observations of witnesses

at the jail would not be likely to outweigh the evidence at

trial in favor of conviction.                 Defendant admitted to Officer

Baucom that she had started drinking around 1:00 p.m. that day

and Defendant failed Officer Baucom’s field sobriety tests that
                                          -17-
he administered at the accident scene.                    When Officer Baucom

asked    Defendant   if     she   was     under   the   influence    of   alcohol,

Defendant stated, “I guess so.”              Intoxilyzer tests revealed her

blood alcohol concentration to be 0.10, which is above the legal

limit.    N.C. Gen. Stat. § 20-138.1(a)(2) (2013).                  This evidence

is sufficient to show Defendant’s impairment and to support a

conviction    for    DWI.         Thus,     Defendant    was   not    irreparably

prejudiced    by    the   magistrate’s       statutory    violations      and   the

inability to contact witnesses to observe her condition in jail.

                                  IV. Conclusion

     For the foregoing reasons, the judgment of the trial court

is

     AFFIRMED.

     Judge STROUD concurs in a separate opinion.

     Judge DILLON concurs.

     Report per Rule 30(e).
                                        NO. COA13-1423

                             NORTH CAROLINA COURT OF APPEALS

                                  Filed: 5 August 2014


STATE OF NORTH CAROLINA

       v.                                            Mecklenburg County
                                                     No. 10CRS237504
AMY CLOER,
     Defendant.


STROUD, Judge, concurring.


       While      I    agree     with      the     majority’s     decision,      I     write

separately to further clarify why I find the case law cited by

the majority distinguishable from the present case, although the

result remains the same.                   The majority relies heavily on State

v.   Labinski,         in    which    the     magistrate        “violated    defendant’s

statutory right to pretrial release” when he set a secured bond

without evidence to support such a determination, 188 N.C. App.

120, 126-27, 654 S.E.2d 740, 744-45, disc. review denied, 362

N.C. 367, 661 S.E.2d 889 (2008), just as the magistrate here

did.    Yet in Labinski, this Court determined that the defendant

was not denied of her                 opportunity         to exercise her pre-trial

rights,     and       thus    there    was    no    prejudice     resulting      from    the

magistrate’s          error.         Id.    at     128,   654    S.E.2d     at   745    (The

“defendant was informed of her right to have a witness present

for the intoxilyzer test but did not request a witness, even
                                     -2-
though four of her friends were in fact present at the PCDC at

the proper time and could have witnessed the test. Defendant’s

four friends were present at the PCDC by the time defendant left

the    intoxilyzer    room   and   they    remained      until    her    release.

Defendant was able to see her friends and they could see her,

but she did not ask to speak to them or that they be permitted

to come to her. Defendant also had full access to a telephone

and in fact made several phone calls from the PCDC.”)                    I do not

agree that defendant here was afforded the same opportunity as

in Labinski.       Contrast id.    In Labinski, as a practical matter,

the defendant lost her opportunity only due to her own failure

to ask for her friends who were actually present.                        See id.

Here, defendant lost her opportunity to contact someone, but the

loss    of   opportunity     was   not     from    her     own   inaction,     but

apparently from the functioning of the jail phone.

       Regarding    defendant’s    attempt    to    make    phone   calls,     the

majority notes “there was evidence that the phones were not

working      properly,   [but]     there     is    no    evidence       that   the

Mecklenburg County Jail staff or Magistrate Peters prevented her

from calling anyone and no evidence that the Jail staff caused

the phones to work improperly.”            Although this statement may be

correct, if the phones were not working, for whatever reason,
                                      -3-
then defendant was denied the opportunity to make phone calls.1

When an arrestee is given the right to use a jail phone to call

for help, that phone should operate in a reasonable and normal

manner and give the arrestee a realistic opportunity to speak

with the person they are attempting to contact.               Furthermore,

unlike the Labinski case, and perhaps due to the non-working

phones, defendant here did not have anyone present who could

observe her.      Contrast id.    The defendant in Labinski actually

saw that her friends were at the jail but chose not to speak to

them or ask that they come to her despite the fact that she had

been informed of her rights.      Id.

       However, I do concur that the magistrate’s violation of

North Carolina General Statute § 15A–534 is not what caused

defendant to lose her opportunity to exercise her rights.              This

case   can   be   contrasted   with    State   v.   Knoll,   wherein   three

similar cases were consolidated.            322 N.C. 535, 369 S.E.2d 558

(1988).      In the three Knoll cases, the magistrates themselves

1
  Actually, defendant’s evidence indicated that the phone which
defendant used at the jail was set up in such a manner that if
an arrestee makes a call to another person’s cell phone, the
arrestee will not be able to hear the person who answered on the
cell phone; in other words, an arrestee would be able to call
only a person who has a landline phone, despite the fact than
many people have now ceased to use landline phones.           If
defendant’s claims as to the inability to call a cell phone
number from the jail is correct, this technological issue should
be corrected.
                                -4-
actually denied the defendants the opportunity to exercise their

rights:   (1) The magistrate denied Mr. Knoll’s father the right

to come pick up his son, the defendant, for approximately six

hours.    Id. at 537-38, 369 S.E.2d at 560.   (2)   The magistrate

would not allow two people present to take the defendant, Mr.

Warren, nor would he allow them to post the defendant’s bond

which resulted in the defendant being in custody approximately

eight to nine hours longer than necessary.    Id. at 539-40, 369

S.E.2d at 561-62.     (3)   The magistrate would not allow the

defendant, Mr. Hicks, to post his own bond, despite the fact

that Mr. Hicks could have then taken a taxi home to his wife and

been with her within approximately 30 minutes.      Id. at 541-42,

369 S.E.2d at 562.

    Our Supreme Court stated:

                Each defendant’s confinement in jail
           indeed came during the crucial period in
           which he could have gathered evidence in his
           behalf by having friends and family observe
           him and form opinions as to his condition
           following arrest. This opportunity to gather
           evidence and to prepare a case in his own
           defense was lost to each defendant as a
           direct result of a lack of information
           during processing as to numerous important
           rights and because of the commitment to
           jail. The lost opportunities, in all three
           cases,   to  secure  independent   proof  of
           sobriety, and the lost chance, in one of the
           cases, to secure a second test for blood
           alcohol content constitute prejudice to the
                                         -5-
            defendants in these cases.

322 N.C.        at   547-48,    369    S.E.2d      at    565    (emphasis
added).

    Here, unlike in Knoll, see id. at 537-42, 369 S.E.2d at

560-62,    it    was    not    the    magistrate’s       violation        that   caused

defendant to lose her rights as she was permitted to make her

phone calls, but the loss of opportunity was caused by whatever

entity    was    responsible     for    the     phones,        if   the   phones    were

unlikely    to       permit    defendant      to    be    able      contact      anyone.

However, defendant has not made any argument as to a violation

of her rights by any law enforcement agency.                        Any prejudice in

defendant’s case was not the result of the magistrate’s errors,

and this is the only issue she raises on appeal, so I too must

find no error.
