An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-745
                          NORTH CAROLINA COURT OF APPEALS

                              Filed: 4 February 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 09 CRS 218285
VELI LIMANI



      Appeal by defendant from order entered 10 October 2012 by

Judge Eric L. Levinson in Mecklenburg County Superior Court and

from judgment          entered 10 December 2012 by Judge Christopher W.

Bragg.     Heard in the Court of Appeals 10 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Oliver G. Wheeler, IV, for the State.

      Don Willey for defendant.

      ELMORE, Judge.

      Veli      Limani    (defendant)    appeals    from    the   trial    court’s

order denying his pretrial motion to dismiss a charge of driving

while impaired (DWI).          On appeal, defendant argues that pursuant

to State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), he was

irreparably prejudiced in the preparation of his defense by the

denial     of    his     statutory   right   to    timely    pretrial     release.
                                      -2-
Because defendant failed to show any violation of a statutory

right, we find no error.

                             I.     Factual Background

      On 15 April 2009, defendant was operating a motor vehicle

when he was stopped by Officer Eric Jonasse of the Charlotte

Mecklenburg Police Department and then arrested and charged with

DWI in violation of N.C. Gen. Stat. § 20–138.1.               Officer Jonasse

transported defendant to the Mecklenburg County Intake Center to

administer an intoxilyzer test.             Pursuant to N.C. Gen. Stat. §

20-16.2, Officer Jonasse advised defendant of his intoxilyzer

rights, including his right to call an attorney and select a

witness to view the testing procedure, provided the test could

be    performed    within    30     minutes.         Defendant   waived       his

intoxilyzer      rights.     The     results    of     the   analysis     showed

defendant to have an alcohol concentration of 0.11.

      After reviewing defendant’s paperwork, which consisted of

his   criminal     record,   Officer     Jonasse’s      affidavit,      and   the

intoxilyzer test result, magistrate Ilona Kevorkian (magistrate

Kevorkian) completed defendant’s Conditions of Release form at

approximately 4:40 a.m.           She imposed a $1,000 secured bond for

the charge of DWI and a $200 secured bond for the offense of

operating a vehicle without a license.               At 4:50 a.m. magistrate
                                         -3-
Kevorkian     conducted      a   hearing     with    defendant     to    explain     the

pretrial     release    conditions.          Thereafter,        defendant      met   with

Immigration and Customs Enforcement (ICE) from 5:25 a.m. to 5:45

a.m. and     participated in a pretrial interview from 5:46 a.m. to

6:11 a.m.     Defendant was released from jail at 10:40 a.m., after

having spent 1-2 hours trying to reach a third party to post

bond.

    On 10 December 2012, defendant pled not guilty to DWI and

was convicted following a jury                 trial.      Judge Christopher W.

Bragg sentenced defendant to a Level 5 DWI with a term of 60

days,   suspended      for   12    months.         Defendant     gave    timely      oral

notice of appeal at sentencing.

                                 II.   Standard of Review

    “[T]here      are    three     statutes        that   are   applicable      to   the

issue   of     whether       there     was     a    substantial         violation     of

defendant's statutory right of access to counsel and friends.”

State v. Knoll, 322 N.C. 535, 546, 369 S.E.2d 558, 564 (1988).

First, N.C. Gen. Stat. § 15A–511(b) obligates the magistrate to

inform defendant of the charges against him, of his right to

communicate     with     counsel       and   friends,      and     of    the    general

circumstances under which he may secure his release.                        N.C. Gen.
                                    -4-
Stat.   §   15A–511(b)   (2013).   Additionally,    the    magistrate   must

impose one of the following pretrial release 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 of the full amount    of the bond, by a
            mortgage pursuant to G.S.     58-74-5, or by at
            least one solvent surety.

            (5) House arrest with electronic monitoring.

N.C. Gen. Stat. § 15A-534(a) (2013).


     In doing so, N.C. Gen. Stat. § 15A-534(c) provides that the

magistrate shall consider

             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.
                                           -5-



N.C. Gen. Stat. § 15A-534(c) (2013).

       When    a    defendant     alleges        that     a    substantial         statutory

violation has occurred due to the magistrate’s failure to comply

with    a     statutory     pretrial      release       provision,          he    must       also

demonstrate        “irreparable        prejudice       directly         resulting       from    a

lost opportunity to gather[] evidence in his behalf by having

friends     and    family      observe    him    and    form        opinions      as    to   his

condition following arrest . . . and to prepare a case in his

own defense” before a DWI charge will be dismissed.                                    State v.

Labinski, 188 N.C. App. 120, 124-26, 654 S.E.2d 740, 744, writ

denied,     review    denied,      362    N.C.     367,       661       S.E.2d    889    (2008)

(quotation and citation omitted) (alteration in original).                                     In

cases arising under N.C. Gen. Stat. § 20–138.1(a)(2), “prejudice

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.”                             Knoll, 322 N.C. at

545,   369     S.E.2d     at    564.      Dismissal       of        a    charge    due    to    a

statutory violation “is a drastic remedy which should be granted

sparingly.”         State v. Rasmussen, 158 N.C. App. 544, 549, 582

S.E.2d 44, 50 (2003).
                                      -6-
      “When a defendant alleges he has been denied his right to

communicate with counsel, family, and friends, the trial court

must conduct a hearing on defendant’s motion to dismiss and make

findings and conclusions.          On appeal, the standard of review is

whether there is competent evidence to support the findings and

the conclusions.”       State v. Lewis, 147 N.C. App. 274, 277, 555

S.E.2d    348,    351   (2001)     (citation      omitted).      Unchallenged

findings are presumed to be correct and are binding on appeal.

State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d 702, 703

(1990).      As    such,    we   limit      our   review    to   whether   the

unchallenged facts support the trial court’s conclusions of law.

Id.

                        III. Pretrial Motion to Dismiss

      Defendant    argues   that    he   suffered    irreparable    prejudice

warranting the dismissal of his DWI charge when his release from

jail was delayed due to magistrate Kevorkian’s violation of N.C.

Gen. Stat. § 15A-534(c), which denied him prompt communication

with counsel, family, and friends.           We disagree.

      On appeal, defendant assigns error to the trial court’s

findings of fact 12, 13, and 14 but fails to argue that findings

12 and 13 are unsupported by competent evidence.                 Accordingly,
                                    -7-
we presume that all findings of fact other than finding 14 are

supported by competent evidence.          Finding 14 provides:

            Magistrate E. Kevorkian, in her discretion,
            understood that she retained the authority
            and
            discretion to modify the conditions of
            release set forth on the printed release
            order for
            Defendant during and/or following her face-
            to-face interview of the Defendant. No
            modifications of the bond occurred in this
            matter, however, and the bond amount(s) set
            forth in the Conditions of Release form
            prior to the face-to-face interview with
            Defendant
            remained intact. Kevorkian has, on previous
            occasions, altered the conditions of release
            that   may  have   been   reflected  on   the
            Conditions of Release forms during/following
            the face-to-face interview of an accused.


    Defendant     also   challenges       conclusion     of   law   2,     which

provides:

            The magistrate did not violate §15A-534
            Procedures for determining conditions of
            pretrial release, which requires conditions
            of release to be imposed, as there was no
            showing that the secured bond set was either
            arbitrary or involved magistrate misconduct.

    Defendant    specifically      argues    that    magistrate     Kevorkian

violated N.C. Gen. Stat. § 15A-534(c) when she completed the

Conditions of    Release form “prior to considering all of the

mandatory   statutory    factors   and     prior    to   meeting    with    the

accused[.]”    Relying on State v. Knoll, supra, defendant further
                                         -8-
contends    that       the     appropriate        remedy    for       this    statutory

violation is to vacate the DWI conviction.

      On   appeal,          defendant   does      not     argue   that       magistrate

Kevorkian neglected to interview him pursuant to N.C. Gen. Stat.

§   15A-534(c);       he    merely   takes    issue      with   the    timing    of   the

questioning.       During the pretrial hearing, magistrate Kevorkian

testified that in 2009 it was common practice for her, and all

magistrates    in      Mecklenburg      County,     to    complete     a     defendant’s

Conditions of Release form before interviewing a defendant:

           [I]n DWI cases, we would process [the
           Conditions of Release form].       And then
           things would come after the interview with
           the defendant, like how long have you lived
           in the community and do you work.     And if
           the defendant is able to [] satisfactorily
           answer these questions to determine that
           they’re not a flight risk, then I would
           definitely consider that into a factor. And
           I can modify bond then.


      Further,     she      testified   to     amending     “[m]aybe       five[]     [or]

[s]ix” of every 100 completed Conditions of Release forms after

interviewing      a        defendant.        As   such,     the   record        contains

competent evidence to support finding of fact 14 – magistrate

Kevorkian understood that she retained authority to modify a

Conditions of Release form and had done so.
                                              -9-
       The record also supports the trial court’s conclusion of

law 2.        First, there is no evidence in the record to suggest

that magistrate Kevorkian engaged in misconduct or set arbitrary

pretrial conditions of release.                     Second, N.C. Gen. Stat. § 15A-

534    does    not   mandate      that    a    magistrate       conduct     his    or    her

pretrial interview of a defendant prior to setting the pretrial

release conditions.            Because magistrate Kevorkian considered the

conditions of pretrial release and understood that they could be

modified, the trial court did not err in concluding that she did

not violate N.C. Gen. Stat. § 15A-534.                       Defendant has failed to

convince us that his statutory rights were violated.

                                         IV.    Prejudice

       Assuming arguendo          that defendant’s            statutory     rights were

violated, he has failed to demonstrate irreparable prejudice in

the    preparation        of    his      defense.            Defendant     argues       that

magistrate Kevorkian’s statutory violation caused “unnecessary

delay in [his] release and irreparably prejudiced him” because

he was denied prompt access to family, friends, and counsel.

This    argument     is    without       merit.         In    the   case   sub    judice,

defendant      failed     to   exercise        his    own    rights   to   acquire       the

attendance      of   a    sober    and     responsible         witness     to    view    the

intoxilyxer testing procedure, making him responsible for any
                                           -10-
lost opportunity to gather evidence. See State v. Gilbert, 85

N.C. App. 594, 597, 355 S.E.2d 261, 263-64 (1987) (concluding

that defendant failed to show                prejudice when record did not

contain    evidence      that    he    was    denied      access    to   family    and

friends).     Further,      defendant        spent   1-2    hours    calling   third

parties to secure his release from jail.                        Any delay in his

release or lost opportunity to gather evidence stemmed directly

from his conduct – defendant has failed to show that he was

prejudiced in order to gain relief.

                                      V.     Conclusion


      Defendant has       failed to make a             sufficient showing of a

substantial    statutory        violation     and    of   the   prejudice   arising

therefrom to warrant relief.                Accordingly, we find no error in

the   order   of   the    trial    court      denying     defendant’s     motion   to

dismiss.

      No error.

      Judges McGEE and HUNTER, Robert C. concur.

      Report per Rule 30(e).
