              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1104

                                 Filed: 5 June 2018

Wilkes County, No. 15 CRS 52528

STATE OF NORTH CAROLINA

             v.

JOHN CLAPP III, Defendant.


      Appeal by the State of North Carolina from an order entered 31 May 2017 by

Judge Patrice A. Hinnant in Wilkes County Superior Court. Heard in the Court of

Appeals 16 April 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick
      C. Mertz, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant-appellee.


      BERGER, Judge.


      John Leonard Clapp III (“Defendant”) was arrested on September 5, 2015 for

driving while impaired. Less than three hours later, Defendant was again arrested

for driving while impaired and, because of his first arrest, driving while license

revoked. Defendant moved to suppress evidence which the State planned on using to

prove his second driving while impaired arrest, and the trial court granted this

motion. The State appeals, arguing that the uncontroverted evidence was sufficient

to establish probable cause for Defendant’s arrest. We agree, and therefore reverse.
                                   STATE V. CLAPP

                                  Opinion of the Court



                        Factual and Procedural Background

      Defendant’s motion to suppress was heard in Wilkes County Superior Court

on May 15, 2017. The State’s witnesses at the suppression hearing were Officer Tyler

Hall and Officer Craig Greer of the North Wilkesboro Police Department. Defendant

did not introduce any evidence.

      Evidence presented by the State tended to show that on September 5, 2015,

officers with the North Wilkesboro Police Department pulled Defendant over at a

Wendy’s restaurant and arrested him for driving while impaired at approximately

9:30 p.m. Officer Hall parked Defendant’s BMW 750i in the Wendy’s parking lot and

locked the vehicle.

      Officer Hall transported Defendant to the county jail, where Defendant

provided a breath sample for analysis at 10:25 p.m.       Defendant’s blood alcohol

concentration based on the EC/IR II breath analysis was 0.16 grams of alcohol per

210 liters of breath. Defendant was then transferred to the magistrate’s office where

he was notified his license had been revoked because of his arrest. He signed a

written promise to appear for his court date, and was released from the county jail at

11:35 p.m.

      Thirty minutes later, at 12:05 a.m. on September 6, 2015, Officer Hall saw

Defendant in the driver’s seat of his BMW at a gas station approximately one-half




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                                  Opinion of the Court



mile from the Wendy’s. No one else was in the vehicle and the engine was running.

Defendant’s fiancée was beside him in a different vehicle. Officer Hall testified:

             [The State:] Can you tell the Court about your observations
             of [Defendant’s] physical appearance on the second
             occasion and what you observed?

             [Officer Hall:] [Defendant] had an odor of alcohol coming
             from his person, he had slurred speech, red, glassy eyes and
             he was unsteady on his feet.

             [The State:] You said an odor of alcohol, how strong was
             the odor of alcohol?

             [Officer Hall:] It was a moderate odor of alcohol.

             [The State:] Where did you observe these physical
             appearances; was he inside or outside of the car?

             [Officer Hall:] He was outside of the car.

             [The State:] Where was the odor of alcohol coming from?

             [Officer Hall:] From his breath, it was coming from his
             person.

             [The State:] Prior to arresting [Defendant], did he make
             any statements to you?

             [Officer Hall:] Yes, he made a few statements.

             [The State:] Can you tell the Court what statements he
             made to you, Officer Hall?

             [Officer Hall:] He repeatedly quoted, "How am I supposed
             to leave a $75,000 car sitting in the Wendy's parking lot?"
             That's in quote.

             [The State:] Did he say anything else to you?




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                                  Opinion of the Court



             [Officer Hall:] Yes. He also informed me that he was just
             driving the vehicle to where his son was staying or where
             his son was at the time.

             [The State:] Anything else that you remember?

             [Officer Hall:] He also asked if I would follow him the rest
             of the way.

             [The State:] You did not perform any field sobriety tests on
             him; is that correct?

             [Officer Hall:] No. Due to [Defendant’s] safety, he was
             unable to safely stand on his feet.

             ....

             Basically, the fact that he had just an hour and 40 minutes
             prior blew a positive reading, and for the fact that he was
             unsteady on his feet, he couldn't safely perform the task.
             He was not asked to perform the standardized field
             sobriety testing.

      In response to questions on cross examination, Officer Hall testified about

standard elimination rates for alcohol in the blood:


             For the average person, which I believe [Defendant] is an
             average person, a person's blood-alcohol concentration
             after reaching a peak value, which his peak value was
             around 16 when he quit drinking, will drop by about 0.015
             an hour. For example, if he was to reach a maximum blood-
             alcohol level of a 15 which he blew a 16, it would take about
             10 hours to completely eliminate that alcohol from his
             bloodstream.

             ....

             Due to the positive reading, we formed the opinion that he
             still had plenty of alcohol still in his bloodstream.


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                                  Opinion of the Court



      At the conclusion of the hearing, the trial court stated, “Upon presentation of

evidence, review of the cases and contentions of counsel, it appears a basis hasn't

been established to allow the Court in its discretion to grant the motion in its

entirety.”

      However, the trial court filed a written order on June 8, 2017 granting the

motion to suppress. The trial court made findings of fact that Defendant had a blood

alcohol concentration of 0.16 one hour and forty minutes prior to the second encounter

with Officer Hall, and that Officer Hall issued an affidavit and revocation report

which stated he observed that “Defendant was unsteady on his feet, had a moderate

odor of alcohol coming from his person, had red glassy eyes, and had slurred speech.”

      In granting the motion to suppress, the trial court concluded that “the facts

and circumstances known to Officer [Hall] as a result of his observations . . . are

insufficient, under the totality of [the] circumstances, to form an opinion in the mind

of a reasonable, objective, and prudent officer that there was probable cause to arrest

the Defendant for the offense of driving while impaired.”

      The State entered timely notice of appeal, and argues the trial court erred in

granting Defendant’s motion to suppress. We agree.

                                 Standard of Review

      In determining whether the trial court properly granted a defendant’s motion

to suppress, our review “is strictly limited to determining whether the trial judge's



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                                    Opinion of the Court



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. Cathcart, 227 N.C. App.

347, 349, 742 S.E.2d 321, 323 (2013) (citation omitted). “Conclusions of law are

reviewed de novo.” State v. Gerard, ___ N.C. App. ___, ___, 790 S.E.2d 592, 594 (2016)

(citation omitted).

                                        Analysis

I. Trial Court’s Findings of Fact

      First, the State challenges the trial court’s findings of fact in the written order.

Specifically, the State argues that the following findings of fact are not supported by

competent evidence:

             10.     Officer [Hall] encountered the Defendant at the
             Wilco-Hess      gas    station  public  vehicular  area
             approximately one hour and 40 minutes after the
             Defendant had blown a 0.16 breath alcohol concentration
             on the Intoximeter EC/IR-II, and approximately 40
             minutes after the Defendant had been released on the
             initial DWI charge.

             ....

             12.    Officer [Hall] noted in an affidavit to support his
             traffic report items that were not included in his traffic
             report – which were that he observed the Defendant was
             unsteady on his feet, had a moderate odor of alcohol coming
             from his person, had red glassy eyes, and had slurred
             speech.




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                                 Opinion of the Court



            13.    Officer [Hall] did not administer any field sobriety
            tests to the Defendant. Officer [Hall] did not administer a
            portable breath test to the Defendant. Officer Hall
            observed that Defendant was unsteady during the 10-15
            minutes of the encounter. Officer Hall did not inquire
            whether Defendant had any mobility problems although
            Defendant had a leg brace; whether he had consumed any
            food, beverage or medication in the interim; what he had
            done nor where he had been.

            ....

            16.   Except as noted herein, Officer [Hall] did not observe
            any other signs of impairment during the second encounter
            with the Defendant.

      The State contends finding of fact 10 is inaccurate because it states that

Defendant encountered Officer Hall on the second occasion “approximately 40

minutes after the Defendant had been released on the initial DWI charge.” We agree.

The uncontroverted evidence was that Defendant had been released from the jail at

11:35 p.m. and Officer Hall approached Defendant in the gas station parking lot at

12:05 a.m. Finding of fact 10 is not supported by competent evidence, and is not

binding on this Court.

      The State next challenges finding of fact 12 “out of an abundance of caution.”

The trial court’s finding of fact that Officer Hall included his observations that

Defendant “was unsteady on his feet, had a moderate odor of alcohol coming from his

person, had red glassy eyes, and had slurred speech” in an affidavit and revocation

report was supported by competent and uncontroverted evidence. The trial court



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                                   Opinion of the Court



noted the observations were not in Officer Hall’s incident report, but the trial court

found they were included in an affidavit and revocation report. This Court is bound

by the trial court’s finding that Officer Hall issued an affidavit and revocation report

which included his observations that Defendant “was unsteady on his feet, had a

moderate odor of alcohol coming from his person, had red glassy eyes, and had slurred

speech.”

      The State next argues finding of fact 13 is not supported by competent

evidence. We agree. There was no evidence presented that Defendant wore a leg

brace or had mobility issues related thereto on September 5-6, 2015. The trial court

found as fact that “Defendant had a leg brace” without any evidence to support that

finding. On cross examination, Officer Hall testified:

             [Defense Counsel:] Now, [he’s] unsteady on his feet, we've
             had a prior hearing and you know his brace, can you see
             his brace?

             [Officer Hall:] I cannot see his brace.

             [Defense Counsel:] May he stand up? Sir, just come right
             here so you can see his brace. You never seen his brace?

             [Officer Hall:] I never seen his brace.

             [Defense Counsel:] Did you ask him before, when he was
             unsteady on his feet, if he had any mobility problems?

             [Officer Hall:] I do not recall.




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                                   Opinion of the Court



      The trial court’s finding that Defendant wore a leg brace at any time relevant

to Defendant’s arrest for impaired driving is not supported by competent evidence.

That Defendant wore a leg brace to a court proceeding seventeen months after his

arrest, without more, is irrelevant at best. By his testimony, Officer Hall did not

observe any medical device worn by Defendant during their encounters on September

5-6, 2015. Finding of fact 13, as it relates to Defendant’s leg brace, is not supported

by competent evidence and is not binding on this Court.

      The State also argues finding of fact 16 is not supported by competent evidence

because there was additional evidence of Defendant’s impairment during the second

encounter that was known and available to Officer Hall when he arrested Defendant

for the second driving while impaired charge. We agree.

      Officer Hall’s knowledge of Defendant’s prior blood alcohol concentration and

his observation of the time that had elapsed since the administration of the EC/IR II

breath test were signs that Defendant was still impaired during the second

encounter. Officer Hall testified that because of Defendant’s positive reading less

than two hours prior to the second encounter, he believed Defendant “still had plenty

of alcohol still in his bloodstream.” Officer Hall’s opinion was based upon the training

he received that the average person eliminates alcohol from the body at a rate of 0.015

per hour from the peak blood alcohol concentration result. Officer Hall observed that

Defendant was an average-sized person. Based on his observations of Defendant, his



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                                  Opinion of the Court



personal knowledge of the time that had passed since Defendant’s breath analysis,

and his training on alcohol elimination rates, Officer Hall concluded Defendant would

still be impaired. Since it should take approximately ten hours for the alcohol in

Defendant’s blood to be removed from his system, this was a red flag to Officer Hall

and a sign that Defendant was probably impaired at the time of the second encounter.

The trial court’s finding that Officer Hall did not observe any other signs of

impairment is not supported by competent evidence, and is therefore not binding on

this Court.

      Moreover, the uncontroverted evidence presented by the State does not support

the trial court’s conclusion of law that “the facts and circumstances known to Officer

[Hall] as a result of his observations on September 6, 2015, of the Defendant are

insufficient, under the totality of [the] circumstances” to establish probable cause.

II. Probable Cause

      An officer may arrest an individual if the officer has probable cause to believe

that individual has committed a criminal offense.           N.C. Gen. Stat. § 15A-

401(b) (2017). Our Supreme Court has stated that

              [p]robable cause is defined as those facts and
              circumstances within an officer's knowledge and of which
              he had reasonably trustworthy information which are
              sufficient to warrant a prudent man in believing that the
              suspect had committed or was committing an offense.




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                                     Opinion of the Court



State v. Biber, 365 N.C. 162, 168-69, 712 S.E.2d 874, 879 (2011) (citations and

quotation marks omitted). To establish probable cause, “it is not necessary to show

that the offense was actually committed, only that the officer had a reasonable ground

to believe it was committed.” State v. Tappe, 139 N.C. App. 33, 36, 533 S.E.2d 262,

264 (2000) (citation omitted).         “Probable cause is a flexible, common-sense

standard[,]” State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984), that

“deals with probabilities and depends on the totality of the circumstances.” State v.

Overocker, 236 N.C. App. 423, 433, 762 S.E.2d 921, 927, writ denied, disc. review

denied, 367 N.C. 802, 766 S.E.2d 686 (2014) (citation and quotation marks omitted).

      The offense of driving while impaired for which Defendant was arrested is

committed when an individual

             drives any vehicle upon any highway, any street, or any
             public vehicular area within this State:

             (1) While under the influence of an impairing substance; or

             (2) After having consumed sufficient alcohol that he has, at
                 any relevant time after the driving, an alcohol
                 concentration of 0.08 or more. The results of a chemical
                 analysis shall be deemed sufficient evidence to prove a
                 person's alcohol concentration; or

             (3) With any amount of a Schedule I controlled substance,
                 as listed in G.S. 90-89, or its metabolites in his blood or
                 urine.

N.C. Gen. Stat. § 20-138.1 (2017).




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                                    Opinion of the Court



         Here, the State presented sufficient and uncontroverted evidence establishing

probable cause to arrest Defendant for driving while impaired. Defendant admitted

to Officer Hall that he had driven his BMW between their two encounters. During

the second encounter, Officer Hall observed that Defendant had red-glassy eyes, a

moderate odor of alcohol, slurred speech, and that Defendant was unsteady on his

feet to the extent that it was not safe to conduct standard field sobriety tests. While

Officer Hall did not observe Defendant’s driving behavior, he did have personal

knowledge that Defendant had a blood alcohol concentration of 0.16 one hour and

forty minutes prior to the second encounter. Officer Hall testified that based upon

the standard elimination rate of alcohol for an average individual, Defendant would

probably still be impaired. Thus, there was a reasonable basis for Officer Hall to

believe that Defendant had driven his BMW while under the influence of alcohol.

         The information available to Officer Hall, along with his personal observations

of Defendant, when taken as a whole, provided Officer Hall with probable cause to

believe Defendant had probably committed the offense of driving while impaired.

                                       Conclusion

         Based upon the totality of the circumstances, probable cause existed to justify

Defendant’s second arrest for impaired driving. The trial court erred in granting

Defendant’s motion to suppress. Accordingly, we reverse and remand to the trial

court.



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                      Opinion of the Court



REVERSED AND REMANDED.

Chief Judge MCGEE and Judge STROUD concur.




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