                                  NO. COA14-390

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 4 November 2014


STATE OF NORTH CAROLINA


    v.                                       Buncombe County
                                             No. 11 CRS 63608
MATTHEW SMITH SHEPLEY



    Appeal by defendant from judgment entered 9 September 2013

by Judge James U. Downs in Buncombe County Superior Court. Heard

in the Court of Appeals 11 September 2014.


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

    Wait Law,      P.L.L.C.,       by    John    L.   Wait,       for   defendant-
    appellant.


    STEELMAN, Judge.


    The     law   enforcement       officer’s      stop    of     defendant     was

justified by reasonable suspicion. Where the officer obtained a

blood    sample   from    defendant      pursuant     to    a     warrant,    after

defendant   refused      to   submit    to   a   breath    test    of   his   blood

alcohol level, the results were admissible under N.C. Gen. Stat.

§ 20-139.1(a). The procedures for obtaining the blood sample did

not have to comply with the requirements of N.C. Gen. Stat. §
                                         -2-
20-16.2, and defendant did not have a right to have a witness

present. Because defendant pled guilty, he did not have a right

to appeal the denial of his motions to dismiss the charges.

                       I. Factual and Procedural Background

       Just   before    midnight    on    22    November     2011,      Deputy    Dean

Hannah was on patrol in Buncombe County, North Carolina, and saw

Matthew Shepley (defendant) driving his moped on Smokey Park

Highway. Defendant was wearing a bicycle helmet instead of a DOT

approved helmet, and his moped did not have a taillight. After

observing the helmet and the absence of a taillight, Officer

Hannah illuminated his blue lights to initiate a traffic stop.

Defendant initially sped up but stopped after traveling about

220    yards.    When     Officer    Hannah       approached       defendant,      he

“immediately smelled a strong odor of alcoholic beverage on his

breath.”

       Based on his observations during the stop, Officer Hannah

arrested defendant for driving while impaired and failing to

wear a DOT approved helmet, and took him to the Buncombe County

Detention Center. Defendant requested that a witness be present

to    observe   the    breath   testing        procedures.    When      the   witness

arrived, defendant        refused to give a breath sample. The law

enforcement     officer    escorted      the     witness     out   of    the     room,

obtained a search warrant, and a blood sample was drawn from
                                         -3-
defendant outside the presence of the witness. The blood sample

was sent to the State Bureau of Investigation where, after a

substantial delay, it was determined that defendant had a .14

blood alcohol level.

    On 14 May 2013 defendant was convicted in district court of

driving while impaired and appealed to superior court. On 6 June

2013, defendant filed a motion to suppress the evidence against

him, asserting that Deputy Hannah’s stop of defendant violated

his rights under the 4th Amendment because the stop was not

supported    by    reasonable       suspicion        of    criminal      activity.

Defendant also filed a motion to dismiss the charge based upon

an alleged deprivation of his U.S. constitutional right to a

speedy   trial.    On    8   July   2013       defendant   filed    a   motion   to

suppress the results of the blood test and dismiss the charge

against him because his witness had not been allowed to observe

the drawing of his blood pursuant to the search warrant. The

trial court denied defendant’s motions in orders entered 12 July

2013. On 5 August 2013 defendant filed a motion asking the trial

court to reconsider its ruling on the issue of whether Deputy

Hannah’s    stop    of       defendant     was     supported       by   reasonable

suspicion. The motion was based upon the assertion that at the

original hearing on defendant’s suppression motion Deputy Hannah

testified that he had taken defendant’s helmet into evidence,
                                       -4-
but after the hearing Deputy Hannah determined that he had not

confiscated the helmet. Following a hearing, the trial court

orally denied defendant’s motion. After defendant’s motions were

denied, he filed written notice of his intent to appeal the

denial of his motions to suppress and dismiss.

    On 9 September 2013 defendant pled guilty to driving while

impaired, and reserved his right to appeal the denial of his

suppression     motions.      The     trial         court       imposed     level       two

punishment,    sentenced     defendant         to   a    term      of   twelve   months,

suspended    the   sentence,    and       placed     him      on   probation      for    18

months.

    Defendant appeals.

                                II. Legal Analysis

                                A. Scope of Review

    On appeal defendant argues that the trial court erred by

denying his suppression motion and his motions to dismiss the

charge against him. “‘In North Carolina, a defendant’s right to

appeal in a criminal proceeding is purely a creation of state

statute.’ A defendant who pleads guilty has a right of appeal

limited   to    the     following:    .    .    .       Whether     the   trial     court

improperly     denied    defendant’s       motion        to   suppress.     N.C.    Gen.

Stat. §§ 15A-979(b)[(2013)], 15A-1444(e) [(2013)][.]” State v.

Jamerson, 161 N.C. App. 527, 528-29, 588 S.E.2d 545, 546-47
                                    -5-
(2003) (quoting State v. Pimental, 153 N.C. App. 69, 72, 568

S.E.2d 867, 869 (2002)). “Here, upon defendant’s guilty plea,

defendant has a right to appeal only the trial court’s denial of

his motion to suppress. . . . Defendant does not have a right to

appeal the trial court’s denial of his motion to dismiss[.]”

State v. Smith, 193 N.C. App. 739, 742, 668 S.E.2d 612, 614

(2008).    Therefore,   we   do   not    address   defendant’s   arguments

pertaining to the denial of his motions to dismiss.

                             B. Suppression Motion

                   1. Right to Witness at Blood Drawing

    In his first argument, defendant contends that the trial

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

blood     test   because     he   “was    denied    his   statutory    and

constitutional right to have a witness present for the blood

draw.” We disagree.

    N.C. Gen. Stat. § 20-16.2 provides in relevant part that:

            (a) Any person who drives a vehicle on a
            highway or public vehicular area thereby
            gives consent to a chemical analysis if
            charged with an implied-consent offense. .
            . . Before any type of chemical analysis is
            administered the person charged shall be
            taken before a chemical analyst . . . or a
            law enforcement officer . . . who shall
            inform the person orally and also give the
            person a notice in writing that:

                                  . . .
                                         -6-
             (6) You may call an attorney for advice and
             select a witness to view the testing
             procedures remaining after the witness
             arrives[.]. . .

             (a1) Under this section, an “implied-
             consent offense” is an offense involving
             impaired driving, a violation of G.S. 20-
             141.4(a2), or an alcohol-related offense[.]
             . . .

                                      . . .

             (c) A law enforcement officer or chemical
             analyst shall designate the type of test or
             tests to be given and may request the
             person charged to submit to the type of
             chemical analysis designated. If the person
             charged willfully refuses to submit to that
             chemical analysis, none may be given under
             the provisions of this section, but the
             refusal does not preclude testing under
             other applicable procedures of law.

       “During   the    administration         of   a     breathalyzer    test,    the

person   being   tested      has   the   right      to    ‘call   an   attorney    and

select a witness to view for him the testing procedures.’ This

statutory    right     may    be   waived   by      the    defendant,    but    absent

waiver, denial of this right requires suppression of the results

of the breathalyzer test.” State v. Myers 118 N.C. App. 452,

454,   455   S.E.2d    492,    493   (1995)      (quoting     N.C.     Gen.    Stat.   §

N.C.G.S. § 20-16.2(a)(6), and citing McDaniel v. Division of

Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d 73, 75 (1989),

and State v. Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57

(1973) (other citation omitted). However, as stated above, if a
                                      -7-
defendant refuses to submit to the test designated by the law

enforcement officer, no blood alcohol tests “may be given under

the   provisions      of   this   section,   but    the   refusal     does   not

preclude testing under other applicable procedures of law.” The

plain     language    of   the    statute    limits   its     application     to

situations in which a defendant consents to take a breathalyzer

or other test designated by the officer.

      N.C. Gen. Stat. § 20-139.1(a) addresses the admissibility

of chemical analyses of blood alcohol other than those performed

pursuant to N.C. Gen. Stat. § 20-16.2, and provides in relevant

part that “[i]n any implied-consent offense under G.S. 20-16.2,

a person’s alcohol concentration . . . as shown by a chemical

analysis is admissible in evidence. This section does not limit

the introduction of other competent evidence as to a person’s

alcohol    concentration     or   results    of   other   tests   showing    the

presence    of   an   impairing   substance,      including   other    chemical

tests.”

      The relationship between N.C. Gen. Stat. § 20-16.2 and N.C.

Gen. Stat. § 20-139.1 has been addressed in several cases. In

State v. Drdak, 101 N.C. App. 659, 400 S.E.2d 773 (1991), the

defendant was injured in a motor vehicle accident and taken to

the hospital, where his blood was tested for alcohol without

first informing him of his right to consent or refuse the blood
                                     -8-
test or of his rights under N.C. Gen. Stat. § 20-16.2. On appeal

we held that the results of the blood test were inadmissible,

because the blood test was not performed in accordance with N.C.

Gen. Stat. § 20-16.2. The North Carolina Supreme Court reversed:

            The Court of Appeals held that the trial
            judge erred in denying defendant’s motion
            to suppress because the blood test was not
            performed   according   to   the   procedure
            authorized under N.C.G.S. §§ 20-16.2 and
            20-139.1. This contention of the defendant
            flies squarely in the face of the plain
            reading of the statute, N.C.G.S. § 20-
            139.1(a), which states: “This section does
            not   limit   the  introduction   of   other
            competent evidence as to a defendant’s
            alcohol   concentration,   including   other
            chemical tests.” This statute allows other
            competent evidence of a defendant’s blood
            alcohol level in addition to that obtained
            from chemical analysis pursuant to N.C.G.S.
            §§ 20-16.2 and 20-139.1. . . . [I]t is the
            holding of this Court that the obtaining of
            the blood alcohol test results in this case
            was not controlled by N.C.G.S. § 20-16.2(a)
            and did not have to comply with that
            statute because the test in question is
            “other competent evidence” as allowed by
            N.C.G.S. § 20-139.1.

State v. Drdak, 330 N.C. 587, 592-93, 411 S.E.2d 604, 607-08

(1992) (emphasis added). We hold that the argument advanced by

defendant in the instant case has been rejected by our Supreme

Court.    Similarly,   in   State   v.   Davis,     142    N.C.   App.   81,   542

S.E.2d 236 (2001), after the defendant refused to consent to a

breath test    of his blood alcohol level,                the law enforcement

officer    obtained    a   search   warrant   and    took    urine   and   blood
                                            -9-
samples from the defendant. On appeal, we upheld the admission

of the results of these tests, citing Drdak:

               Here   the    defendant   was    given    the
               opportunity to voluntarily submit to the
               testing.   He  refused,   and   the  officer
               obtained a search warrant based on probable
               cause. We hold that testing pursuant to a
               search   warrant   is   a  type   of   “other
               competent evidence” referred to in N.C.G.S.
               § 20-139.1. In a similar case our Supreme
               Court . . . [held that] “it is not
               necessary for the admission of such ‘other
               competent evidence’ that it be obtained in
               accordance with N.C.G.S. § 20-16.2.”

Davis, 142 N.C. App. at 86, 542 S.E.2d at 239 (quoting Drdak).

Based on the language of N.C. Gen. Stat. § § 20-16.2 and 20-

139.1, as well as the Drdak and Davis opinions, we conclude that

after    defendant    refused      a    breath      test    of     his    blood    alcohol

level, he was not entitled to have a witness present at the

blood test performed pursuant to a search warrant.

       In arguing for a contrary result, defendant asserts that

Davis is not controlling precedent because, although it held

that evidence introduced under N.C. Gen. Stat. § 20-139.1(a) did

not have to comply with the strictures of N.C. Gen. Stat. § 20-

16.2,    it    did   not   enumerate        the    specific       provisions       of   the

statute. We disagree, given that its quote from Drdak, stating

that    when    evidence   is   admitted          under    N.C.    Gen.    Stat.    §   20-

139.1(a) “‘it is not necessary for the admission of such ‘other

competent      evidence’    that       it   be    obtained        in   accordance       with
                                     -10-
N.C.G.S. § 20-16.2’” would necessarily include the right to have

a   witness   present.   Moreover,     defendant    does    not   acknowledge

Drdak,   in   which    our   Supreme   Court    expressly    held   that   the

provisions of N.C. Gen. Stat. § 20-16.2 need not be followed if

evidence of a defendant’s blood alcohol is admitted under N.C.

Gen. Stat. § 20-139.1(a) as “other competent evidence.” We hold

that, because defendant’s blood was drawn pursuant to a search

warrant obtained after he refused a breath test of his blood

alcohol level, he did not have a right under N.C. Gen. Stat. §

20-16.2 to have a witness present.

                2. Constitutionality of Stop of Defendant

      In his second argument, defendant contends that the trial

court erred by denying his motion to suppress because Deputy

Hannah “did not have legal grounds to initiate” a traffic stop

of defendant. We do not agree.

      “The    Fourth     Amendment     protects     individuals      ‘against

unreasonable    searches     and   seizures.’     U.S.   Const.   amend.   IV.

Traffic stops are permitted under the Fourth Amendment if the

officer has ‘reasonable suspicion’ to believe that a traffic law

has been broken.’” State v. Hopper, 205 N.C. App. 175, 177, 695

S.E.2d 801, 803 (2010) (quoting State v. Styles, 362 N.C. 412,

415, 665 S.E.2d 438, 440 (2008) (internal quotation omitted).

Reasonable suspicion exists if “[t]he stop . . . [is] based on
                                              -11-
specific        and     articulable        facts,        as        well       as    the     rational

inferences from those facts, as viewed through the eyes of a

reasonable,           cautious       officer,          guided          by      [the        officer’s]

experience and training.” State v. Watkins, 337 N.C. 437, 441,

446       S.E.2d      67,     70     (1994)    (citation               omitted).           Reasonable

suspicion requires a “minimal level of objective justification,

something more than an ‘unparticularized suspicion or hunch[.]’”

State      v.   Steen,       352   N.C.    227,        239,    536      S.E.2d        1,    8   (2000)

(quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct.

1581, 104 L. Ed. 2d 1, 10 (1989).

          N.C. Gen. Stat. § 20-140.4(a)(2) provides in relevant part

that “[n]o person shall operate a . . . moped upon a highway . .

. [u]nless the operator and all passengers thereon wear on their

heads, with a retention strap properly secured, safety helmets

of    a    type    that      [comply]      with        Federal         Motor       Vehicle      Safety

Standard        (FMVSS)       218.”       Violation           of       this     statute         is    an

infraction.           N.C.    Gen.     Stat.       §     20-140.4(c).              Deputy       Hannah

testified that he observed defendant operating his moped without

wearing a proper helmet. This observation clearly provided the

officer with a reasonable suspicion that defendant had committed

an    infraction.        Under     N.C.     Gen.       Stat.       §    15A-1113(b),            a    “law

enforcement officer who has probable cause to believe a person

has       committed     an     infraction       may       detain          the      person       for    a
                                         -12-
reasonable period in order to issue and serve him a citation.”

Deputy Hannah’s stop of defendant was supported by reasonable

suspicion,     and    the        trial   court     did    not     err    by   denying

defendant’s motion to suppress evidence.

      Defendant concedes that Deputy Hannah testified to seeing

defendant     operating      his    moped   with    an    improper       helmet,   but

argues that because the officer could not confirm “whether or

not   the   helmet    was    DOT    approved      until    after   he    approached”

defendant,     the   officer’s       belief      that    defendant’s      helmet   was

improper “cannot support reasonable suspicion[.]” However, our

Supreme     Court    has    held     that     “reasonable       suspicion     is   the

necessary standard for traffic stops, regardless of whether the

traffic     violation      was    readily   observed      or    merely   suspected.”

Styles, 362 N.C. at 415, 665 S.E.2d at 440. As a result, we are

not persuaded by defendant’s argument.

      For the reasons discussed above, we conclude that the trial

court did not err in denying defendant’s motion to suppress and

that its order should be

      AFFIRMED.

      Judges GEER and DIETZ concur.
