An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1265
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


STATE OF NORTH CAROLINA

      v.                                      Cabarrus County
                                              No. 11 CRS 053301
TODD EASTMAN BROWN



      Appeal by defendant from judgment entered 10 January 2013

by Judge Tanya T. Wallace in Cabarrus County Superior Court.

Heard in the Court of Appeals 24 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carrie D. Randa and Assistant Attorney General Christopher
      W. Brooks, for the State.

      Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
      for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Todd Eastman Brown (“Defendant”) appeals from an impaired

driving     judgment      following      convictions      for      driving    while

impaired and no operator’s license.              Defendant contends that the

trial court erred in denying his pretrial motion to suppress the

results    of   an   alcohol    breath    test   because     his    wife   was   not

allowed to observe the test’s administration.                 Defendant further
                                           -2-
contends     that     the    trial     court      erred     in     denying      one     of

Defendant’s       requested     jury       instructions          and    in    excluding

testimony    by     Defendant’s      expert      witness.        For    the   following

reasons, we disagree and find no error.

                     I.     Factual & Procedural History

       On 25 June 2011, at approximately 4:00 a.m., Officer Denan

Sabanija (“Officer Sabanija”) of the Concord Police Department

executed a traffic stop of Defendant’s vehicle after discovering

that Defendant was driving with an expired license plate tag.

When    Officer     Sabanija    approached        the   vehicle,        he    noticed   a

strong odor of alcohol on Defendant’s breath and that Defendant

appeared to have glassy eyes.               Officer Sabanija asked Defendant

if he had been drinking, and Defendant conceded that he had a

few drinks earlier in the night.                  Thereafter, Officer Sabanija

asked Defendant to step out of the vehicle and administered a

field sobriety test.           Officer Sabanija indicated that Defendant

was     barefooted,       unsteady    on    his    feet,    and        that   Defendant

registered multiple clues of impairment on the field sobriety

test.

       Based on these facts, Officer Sabanija arrested Defendant

for driving while impaired, driving with expired registration
                                              -3-
tags, and driving with no operator’s license.1                                 Upon arrest,

Defendant was taken to the Cabarrus County jail.

       Defendant arrived at the jail at approximately 4:30 a.m.

He   was   processed         and    turned     over       to   Officer        Brian     Pizzino

(“Officer    Pizzino”),         who     was    asked      to    administer         an   alcohol

breath     test    on    Defendant.             Before         beginning       the      testing

procedure,    Defendant            called     his    wife      and     left    a     voicemail

indicating that she needed to come to the jail to observe the

test being performed.               However, Defendant did not tell Officer

Pizzino     that    he       wanted     his    wife       present      for     the      testing

procedure.        Both Officer Pizzino and Officer Sabanija indicated

that they had no knowledge of Defendant’s desire to have his

wife   present     for       testing.         Thereafter,        Officer       Pizzino     read

Defendant    his     rights        regarding        the   testing       procedure,        which

Defendant waived by a signed writing.                            Officer Pizzino           then

administered the alcohol breath test, yielding results of 0.15%

at 5:07 a.m. and 0.14% at 5:09 a.m.

       Meanwhile,       at    approximately          4:40      a.m.,    Defendant’s        wife

listened to the voicemail from Defendant requesting her to come

to the police station.              By her estimation, it took approximately

1
  Defendant was arrested on the charge of no operator’s license
because Defendant had an existing restriction on his license
rendering it invalid if Defendant drives with a blood alcohol
concentration greater than 0.04%.
                                          -4-
10   minutes    for    her   to   get    to     the   police    station   after   she

listened to the voicemail.           When Defendant’s wife arrived at the

police station, she attempted to see her husband but was denied

access by the magistrate.               Neither Officer Pizzino nor Officer

Sabanija knew Defendant’s wife was present at the station.

      Based on the results of the alcohol breath test, as well as

other evidence collected by police, Defendant was charged with

one count of driving while impaired, one count of driving with

expired registration tags, and one count of having no operator’s

license.        After    Defendant       pled     guilty   in     district    court,

Defendant appealed to superior court for a trial de novo.                     On 25

July 2012, Defendant filed a motion to suppress the results of

the alcohol breath test, arguing that his statutory right under

N.C. Gen. Stat. § 20-16.2(a)(6) (2013) to have a witness view

the testing procedure was violated when police refused to allow

his wife into the testing room.                 Following a hearing, the trial

court entered an order on 20 November 2012 denying Defendant’s

motion to suppress, concluding that Defendant had waived his

statutory      right    to   have   a    witness      present    for   the   testing

procedure.
                                               -5-
    Thereafter, Defendant was tried and convicted of driving

while impaired and having no operator’s license.2                              On 10 January

2013,   the    trial      court      entered         an    impaired     driving        judgment

sentencing     Defendant        to     12    months        active    imprisonment.            The

sentence      was    suspended         for    thirty-six          months    of       supervised

probation      conditioned        on,        inter    alia,       Defendant      serving       an

active sentence of seven days in the local jail.                                     Defendant

filed a timely notice of appeal.

                                  II.        Jurisdiction

    Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013).                    See also N.C. Gen. Stat. § 15A-

979(b) (2013) (“An order finally denying a motion to suppress

evidence    may      be   reviewed      upon     an       appeal    from   a     judgment      of

conviction,         including      a    judgment           entered    upon       a    plea     of

guilty.”).

                                       III. Analysis

    Defendant’s           appeal       presents           three     questions        for     this

Court’s review: (1) whether the trial court erred in denying

Defendant’s pretrial motion to suppress; (2) whether the trial

court   erred       in    denying       one     of        Defendant’s      requested         jury

2
  The charge of driving with expired registration tags                                        was
dismissed for a lack of evidence presented by the State.
                                         -6-
instructions; and (3) whether the trial court erred in excluding

testimony by Defendant’s expert witness.                      We address each in

turn.

A. Motion to Suppress

    Defendant’s       first     argument       on    appeal   is    that       the    trial

court erred in denying his motion to suppress the results of the

alcohol   breath     test    administered           by   Officer    Pizzino      because

Defendant’s   wife     was      denied   the        opportunity     to    witness       the

testing   procedure.         Specifically,          Defendant      contends      that     by

denying his wife access to the testing room, his statutory right

under N.C. Gen. Stat. § 20-16.2(a)(6) to have a witness view the

testing   procedure    was      violated     notwithstanding            the    fact     that

Defendant executed a signed waiver before the testing procedure

relinquishing such right.            We disagree.

    Our     review    of    a   trial    court’s         denial    of    a     motion    to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence,    in    which     event    they     are       conclusively         binding    on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.”                    State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982).                     “Conclusions of law are

reviewed de novo and are subject to full review.”                               State v.
                                -7-
Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).        “Under a

de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294

(2008) (quotation marks and citation omitted).

    Pertinent here, the trial court made the following findings

of fact:

           1. On 25 June 2011 at approximately 4:30
           o’clock A.M. Officer Brian Pizzino of the
           Concord Police Department was on duty in the
           Cabarrus     County       Sheriff’s      office
           administering an alcohol breath test to
           another defendant, not the defendant herein,
           using    the   EC/IR    IR    II    intoximeter
           machine. . . . Officer    Sabanija,    also   a
           member of the Concord Police Department, had
           stopped the defendant, Todd Eastman Brown,
           at approximately 4:00 o’clock A.M. on that
           same day upon suspicion of driving while
           impaired and had brought the defendant to
           the intoximeter room at the Cabarrus County
           Sheriff’s office.    Officer Sabanija was not
           qualified to administer tests using the
           intoximeter machine, and so he requested
           Officer Pizzino to administer the test to
           the defendant.

           2. Officer Pizzino informed the defendant of
           his rights using the form issued by the
           North Carolina Department of Health and
           Human Services entitled “Rights of Person
           Requested to Submit to a Chemical Analysis
           to   Determine   Alcohol   Concentration  or
           Presence of and [sic] Impairing Substance
           Under N.C.G.S. 20-16.2(a).”       The rights
           listed on the form are incorporated herein
           by reference.   After being informed of such
                                          -8-
               rights, the defendant signed the form and
               waived his rights to call an attorney or
               another witness.

               3. The defendant never stated to either
               Officer Pizzino or Officer Sabanija that he
               wanted an attorney or anyone else to witness
               the intoximeter test.   The defendant never
               told either of these officers that his wife
               and son were present in the waiting area
               nearby.

               4. The defendant knowingly and voluntarily
               waived his right to have an attorney or
               another person witness the administration of
               the intoximeter test on 25 June 2011.

Based    on    the     foregoing    findings        of   fact,      the    trial    court

concluded that Defendant “knowingly and voluntarily waived his

rights under N.C. Gen. Stat. § 20-16.2(a), that his motion to

suppress      should     be   denied[,]       and    that     the    intoximeter        test

results are admissible in evidence.”

       On appeal, Defendant challenges the trial court’s finding

that Defendant waived his statutory right to have a witness view

the    testing       procedure.        However,     Defendant’s       brief      does   not

dispute       that    Defendant    actually         signed    a     form   waiving       his

rights.       Rather, Defendant challenges whether the signed form

has the legal effect of waiving his statutory rights given the

fact    that     he    had    called    his    wife      to   observe      the     testing

procedure prior to signing the document and the fact that his

wife was later denied access to the testing room.                                Defendant
                                           -9-
does not challenge the trial court’s other factual findings, so

we    consider       these     unchallenged      findings       binding    on    appeal.

State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206

(2006).

       Thus, in reviewing Defendant’s appeal, we presume the trial

court’s underlying findings of fact to be correct, but treat the

trial court’s determination regarding the ultimate question of

waiver    as    a    conclusion      of   law    that   is     reviewed    de    novo    on

appeal.    See In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,

409    (2007)        (“[I]f    [a]   finding      of    fact      is    essentially      a

conclusion of law . . . it will be treated as a conclusion of

law which is reviewable on appeal.” (alterations in original)

(quotation       marks    and    citations       omitted)).          Accordingly,       our

review is limited to whether the trial court’s findings of fact

support the conclusion that Defendant waived his rights under

the statute.

       Pursuant to N.C. Gen. Stat. § 20-16.2(a), before any type

of    chemical       analysis,    including       an    alcohol      breath     test,    is

administered         to   a     person    charged       with    an     implied-consent

offense,       the    person    charged    must    be    informed       orally    and   in

writing that, inter alia, he or she may “select a witness to

view     the     testing       procedures       remaining       after     the    witness
                                   -10-
arrives,” provided the testing is not delayed for such purposes

longer than 30 minutes.         This statutory right may be waived by

the person being tested.         State v. Myers, 118 N.C. App. 452,

454, 455 S.E.2d 492, 493 (1995).              However, absent a waiver,

“denial of this right requires suppression of the results of the

breathalyzer test.”      Id.      Importantly, the burden is on the

person arrested for driving while impaired to assert at an early

stage an intention to exercise his or her statutory right to

have a witness view the testing procedure.           McDaniel v. Div. of

Motor   Vehicles,   96   N.C.   App.   495,   497,   386   S.E.2d,   73,   75

(1989).

    Here, Defendant contends that the trial court’s conclusion

that he waived his right under the statute is error and that his

statutory rights were violated when his wife was denied access

to the testing room.        Defendant’s argument is without merit.

The trial court found as fact that Defendant was informed of his

statutory rights prior to the testing procedure, that Defendant

signed a form waiving his rights, that Defendant never stated to

the police that he wanted a witness, and that Defendant never

informed police that his wife was present at the station.

    Notwithstanding these findings, Defendant cites              State v.

Hatley, 190 N.C. App. 639, 661 S.E.2d 43 (2008), to support the
                                  -11-
argument that his statutory rights were violated.             In Hatley, we

reversed the trial court’s order denying the defendant’s motion

to suppress, holding that the defendant’s statutory right to

have a witness view the testing procedure was violated when the

police were aware that the defendant called a witness to observe

the test, but denied the witness access to the testing room

because the witness failed to specifically identify that she was

there to witness the defendant’s test.3              Id. at 643–44, 661

S.E.2d at 45–46.   In reaching our holding, we stated that “[w]e

find no authority for the proposition that a potential witness

to an intoxilyzer test must state unequivocally and specifically

that he or she has been called to view the test before the

witness is permitted to observe the test.”              Id. at 644, 661

S.E.2d at 46.

    Here,   Defendant    seeks    to    analogize    Hatley    because   his

witness, Defendant’s wife, was also denied access to the testing

room.   However,   in   Hatley,   the    defendant   did   not   waive   her

rights through a signed writing and specifically indicated to

police that she had contacted a witness who was en route to the

3
  The witness in Hatley told the desk officer at the police
station that she was there for the defendant and that the
defendant was at the station because of “a DUI.”    Hatley, 190
N.C. App. at 644, 661 S.E.2d at 46.      The witness failed to
specify to the desk officer that she was there to observe an
alcohol breath test. Id. at 643, 661 S.E.2d at 45.
                                         -12-
police station.         Id. at 643, 661 S.E.2d at 45.                Neither is the

case here.        Defendant explicitly waived his rights in writing

and did not tell Officer Pizzino or Officer Sabanija about his

wife coming to the police station to witness the testing.                           Thus,

Hatley is inapposite. Defendant was informed of his statutory

rights    under     N.C.     Gen.   Stat.       §   20-16.2(a)      and     given     the

opportunity to request that his wife be allowed to view the

testing    procedure.         Instead,     Defendant         explicitly   waived      his

right     to     have   his      wife    present        in     a   signed     writing.

Accordingly, Defendant’s first argument is overruled.

B. Jury Instruction

    Defendant’s second argument on appeal is that the trial

court erred in denying a jury instruction requested by Defendant

explaining       that   the      results    of      a   chemical        analysis      are

sufficient,       but      not   conclusive,        evidence       of     impairment.

Specifically, Defendant sought an instruction that stated:

               A chemical analysis of defendant’s breath
               obtained from an EC/IR-II which shows an
               alcohol concentration of 0.08 or more grams
               of alcohol per 210 liters of breath is
               deemed   sufficient  to   prove   defendant’s
               alcohol   concentration.      However,   such
               chemical analysis does not compel you to so
               find beyond a reasonable doubt.      You are
               still at liberty to consider the credibility
               and/or weight to give such chemical analysis
               when considering whether defendant’s guilt
               has been proven beyond a reasonable doubt.
                                    -13-


The instruction actually provided to the jury was:

            The results of a chemical analysis are
            deemed   sufficient  evidence   to  prove  a
            person's alcohol concentration.      You may
            find the defendant’s alcohol concentration
            to be a .08 or more based upon the result,
            but you are not compelled to do so.

    This Court has recently defined the law with respect to

Defendant’s argument as follows:

            When a defendant requests a special jury
            instruction, the trial court is not required
            to give the requested instruction in the
            exact language of the request.        However,
            when the request is correct in law and
            supported by the evidence in the case, the
            court   must    give   the   instruction    in
            substance.   Thus, in order for a defendant
            to establish error, [he or] she must show
            that the requested instructions were not
            given in substance and that substantial
            evidence supported the omitted instructions.
            The defendant also bears the burden of
            showing   that   the  jury   was   misled   or
            misinformed by the instructions given.

State v. Beck, ___ N.C. App. ___, ___, 756 S.E.2d 80, 82 (2014)

(internal quotation marks, citations, and brackets omitted).              We

believe   Beck,   which   also   concerned    a   driving   while   impaired

conviction, is dispositive of this issue.

    In Beck, the defendant also requested a special instruction

informing   the   jury    that   chemical    analysis   test   results   are

sufficient, but not conclusive, evidence of impairment and that
                                            -14-
the jury is allowed to consider the weight to be accorded to

such   results.         Id.    at     ___,    756     S.E.2d      at    82.     The    jury

instruction      actually      used    by    the    trial      court     in   Beck    was   a

reproduction of Pattern Jury Instruction 270.20A.                              Id.     Beck

held that it was not error for the trial court to refuse the

specific    language      of     the      defendant’s          requested      instruction

because    the   pattern       jury    instruction            properly    “informed     the

jury, in substance, that it was not compelled to return a guilty

verdict based simply on the chemical analysis results.”                              Id. at

___, 756 S.E.2d at 83.

       Here, the jury instruction provided by the trial court was

also a reproduction of Pattern Jury Instruction 270.20A, except

for an additional sentence instructing the jury concerning the

chemical test result as follows: “You may find the Defendant’s

alcohol concentration to be 0.08 or more based upon the result,

but you are not compelled to do so.”                      Thus, as evinced by the

addition    of    the     foregoing          sentence,         the     jury   instruction

provided    in    this    case      was      closer      to    Defendant’s      requested

instruction than the instruction provided in Beck.                            Even though

the trial court did not present Defendant’s proposed instruction

verbatim, it did present Defendant’s instruction in substance

because    it    informed       the       jury      of   the      proper      weight    and
                                    -15-
credibility     to     give   chemical         analysis     test        results.

Accordingly, Defendant’s second argument is overruled.

C. Expert Testimony

       Finally, Defendant argues that the trial court erred in

excluding    expert    testimony   regarding     the    effect     of    gastro-

esophageal    reflux    disease    (“GERD”4)    on   alcohol     breath     test

results.5    We disagree.

            It is well-established that trial courts
            must decide preliminary questions concerning
            the qualifications of experts to testify or
            the admissibility of expert testimony. When
            making such determinations, trial courts are
            not bound by the rules of evidence. In this
            capacity, trial courts are afforded wide
            latitude   of   discretion   when  making   a
            determination about the admissibility of
            expert testimony.    Given such latitude, it
            follows that a trial court’s ruling on the
            qualifications    of   an   expert   or   the
            admissibility of an expert’s opinion will
            not be reversed on appeal absent a showing
            of abuse of discretion.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d

674, 686 (2004) (citations and quotation marks omitted).                  “Abuse

of discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.”               State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

4
    GERD is known colloquially as “acid reflux disease.”
5
    Defendant testified at trial that he suffered from GERD.
                                   -16-
       Here, Defendant sought to admit the testimony of Mr. Julian

Douglas Scott (“Mr. Scott”), expert in the application and use

of evidentiary breath testing devices, who opined during a voir

dire examination that Defendant’s GERD could possibly cause “a

false   high    breath   test   reading   in   this   case.”   Mr.   Scott

acknowledged that little research has been done in this area and

that results go no further than saying that it is possible that

GERD    could   influence   test   results.      After   considering   Mr.

Scott’s testimony, the trial court excluded the evidence under

N.C. R. Evid. 702(a), stating that “there’s not enough testing

to even determine whether [the effects of GERD on evidentiary

breath testing is] a field of expertise or not” and that Mr.

Scott’s opinion would be “more confusing than assisting with

testimony in front of the jury.”

       Pursuant to the version of N.C. R. Evid. 702(a) in effect6

when Defendant was cited for driving while impaired:

            If    scientific,    technical   or   other
            specialized knowledge will assist the trier
            of fact to understand the evidence or to
            determine a fact in issue, a witness
            qualified as an expert by knowledge, skill,


6
  Rule 702(a) was amended in 2011 and applies to actions arising
on or after 1 October 2011. See 2011 N.C. Sess. Law ch. 283, §
1.3; see also State v. Gamez, ___ N.C. ___, ___, 745 S.E.2d 876,
878–79 (2013). Defendant was cited on 25 June 2011 and thus the
old version of the rule applies.
                                    -17-
            experience, training, or education, may
            testify thereto in the form of an opinion.

In interpreting Rule 702(a), our Supreme Court has stated that

there is a “three-step inquiry for evaluating the admissibility

of expert testimony: (1) Is the expert’s proffered method of

proof sufficiently reliable as an area for expert testimony? (2)

Is the witness testifying at trial qualified as an expert in

that area of testimony? (3) Is the expert's testimony relevant?”

Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (internal citations

omitted).    As noted above, the trial court grounded its ruling

on the first inquiry, concluding, in effect, that Mr. Scott’s

opinion would not be sufficiently reliable to be considered an

appropriate area for expert testimony.

    Under the first inquiry, in order to determine whether an

expert’s area of testimony is considered sufficiently reliable,

“[i]nitially,     the   trial   court     should    look   to    precedent   for

guidance    in   determining    whether    the     theoretical    or   technical

methodology underlying an expert’s opinion is reliable.”                 Id. at

459, 597 S.E.2d at 687.

            Where, however, the trial court is without
            precedential guidance or faced with novel
            scientific      theories,      unestablished
            techniques, or compelling new perspectives
            on otherwise settled theories or techniques,
            a different approach is required. Here, the
            trial court should generally focus on the
                                        -18-
            following    nonexclusive     “indices    of
            reliability”   to   determine   whether  the
            expert’s proffered scientific or technical
            method of proof is sufficiently reliable:
            “the expert’s use of established techniques,
            the expert’s professional background in the
            field, the use of visual aids before the
            jury so that the jury is not asked ‘to
            sacrifice its independence by accepting
            [the] scientific hypotheses on faith,’ and
            independent   research   conducted   by  the
            expert.”

Id. at 460, 597 S.E.2d at 687 (quoting State v. Bullard, 312

N.C. 129, 150–51, 322 S.E.2d 370, 382 (1984)).

    Here, given the lack of precedent on this issue, the trial

court looked to other indices of reliability in determining the

admissibility       of     Mr.    Scott’s    opinion.      Specifically,    the

transcript reveals that the trial court considered the quantity

and quality of research backing Mr. Scott’s opinion and the

number of prior occasions that Mr. Scott had been qualified as

an expert on the subject.              Of the few studies Mr. Scott cited,

all had very small sample sizes that Mr. Scott admitted were

“not a very statistically relevant sample.”                 Furthermore, Mr.

Scott acknowledged that none of the studies tending to support

his opinion provide probabilities concerning the likelihood of

GERD affecting alcohol breath test results.               The only thing that

the studies could say, in Mr. Scott’s opinion, was that “it is

possible”    that        GERD    has   an   effect   on   the   test   results.
                               -19-
Moreover, Mr. Scott testified that he had only served as an

expert in this capacity on one prior occasion.       Accordingly,

based on the information before the trial court, we cannot say

that the trial court’s decision to exclude Mr. Scott’s opinion

was manifestly unsupported by reason or so arbitrary that it

could not have been the result of a reasoned decision. The trial

court acted within its discretion in deciding that Mr. Scott’s

opinion as to the “possible” effects of GERD on alcohol breath

testing was unreliable and would tend to confuse the issues.

Defendant’s third argument on appeal is overruled.

                         IV.   Conclusion

    For the foregoing reasons, we find no error in the court

below.

    NO ERROR.

    Judges STROUD and DILLON concur.

    Report per Rule 30(e)
