                            NO. COA13-1221

                  NORTH CAROLINA COURT OF APPEALS

                          Filed: 17 June 2014


STATE OF NORTH CAROLINA


    v.                               Hyde County
                                     Nos. 11 CRS 50118, 12 CRS 22
SAMUEL EUGENE WILLIAMS, JR.,
     Defendant.


    Appeal by the State from order entered 23 July 2013 by

Judge Wayland J. Sermons, Jr., in Hyde County Superior Court.

Heard in the Court of Appeals 5 March 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    John W. Congleton, for the State.

    The Robinson Law Firm, P.A., by Leslie S. Robinson, for
    defendant-appellee.


    BRYANT, Judge.


    Pursuant to N.C. Gen. Stat. § 15A-979(c), where the State

intends to appeal from a trial court’s ruling on a motion, the

State must file a certificate with the trial court indicating

that the State’s appeal is not taken for purposes of delay and

the evidence sought is necessary to the State’s case.    Where the

State seeks to administer multiple chemical analysis tests to a

defendant suspected of driving while impaired, the State must
                                           -2-
advise the defendant of his implied consent rights prior to the

administration of each new test pursuant to N.C. Gen. Stat. §

20-16.2(a).      Where defendant fails to file a notice of appeal

pursuant    to   N.C.    R.   App.    P.    3,     defendant’s     appeal    must    be

dismissed.

    On 21 June 2011 at approximately 8:41 p.m., Hyde County

Sheriff’s Deputy Scott Wilkerson was dispatched to an accident

scene on Ocracoke Island involving a fatality and a golf cart.

Upon arriving at the scene, Deputy Wilkerson observed a body

lying in front of a golf cart and a man, later identified as

defendant Samuel Eugene Williams, Jr., standing next to the golf

cart.    Defendant    admitted       to    driving    the   golf    cart.         Deputy

Wilkerson testified that defendant had red, glassy eyes, was

very talkative, and smelled strongly of alcohol.                    Defendant told

Deputy Wilkerson that he had consumed six beers that afternoon.

Deputy    Wilkerson     administered        a    portable   breath    test        (alco-

sensor) to defendant which yielded a positive result.                       Defendant

was arrested and charged with driving while impaired.

    Defendant was transported to the Ocracoke Island Sheriff’s

Office     intoxilyzer    room.           Deputy     Wilkerson     read     and    gave

defendant a copy of his implied consent rights; defendant signed

the implied consent rights form acknowledging that he understood
                                       -3-
his rights.        After waiting thirty minutes, Deputy Wilkerson, a

certified      chemical    analyst,    asked    defendant     to   submit     to   a

chemical analysis of his breath, but defendant refused.

    Deputy Wilkerson then requested that a blood testing kit be

brought to the office for defendant.              Although Deputy Wilkerson

did not re-advise defendant of his implied consent rights for

the blood test, he gave defendant a consent form for the testing

which defendant signed.         Defendant’s blood was then drawn using

the blood testing kit by a paramedic on site.

    On 23 May 2012, defendant filed motions to suppress the

following: the results of the alco-sensor; evidence obtained as

a result of the arrest of defendant based on lack of probable

cause; defendant’s statement that he consumed “3 Jaeger bombs”;

and statements made by defendant prior to being advised of his

Miranda rights.         On 13 June 2012, defendant filed an additional

motion to suppress evidence obtained as a result of the chemical

analysis of his blood.

    On 23 July 2013, the trial court entered a written order

denying     the    following:    defendant’s      motion     to    suppress    the

results   of      the   alco-sensor;   the     motion   to   suppress   evidence

obtained as a result of defendant’s arrest based on lack of

probable cause; and the motion to suppress defendant’s statement
                                             -4-
that he had consumed “3 Jaeger bombs.”                        The trial court granted

defendant’s       motions       to   suppress      the    results         of    the     chemical

blood   test       and    defendant’s        statements            made    prior      to      being

advised     of    his    Miranda     rights.        The       State       appeals      from     the

portion of the order granting defendant’s motion to suppress the

results of the chemical blood test.

                                _____________________

      Defendant attempts to bring forth issues in his brief on

appeal challenging the trial court’s order denying his motions

to suppress the results of the alco-sensor and evidence obtained

as a result of his arrest based on lack of probable cause.

However, defendant has not filed a notice of appeal from the

trial   court’s         order   as   required      by     Rule       3    of    our    Rules    of

Appellate        Procedure,          N.C.    R.    App.       P.    3     (2013),       nor    has

defendant filed a writ of certiorari for review of the issues he

attempts to raise.              As such, we dismiss defendant’s arguments

challenging the trial court’s denial of his motions.                                  See State

v.   May,   207     N.C.    App.      260,   262,       700    S.E.2d          42,    44   (2010)

(dismissing        appeal       where   "defendant         failed          to    give      timely

written notice of appeal").

                                ___________________________
                                      -5-
    On 10 January 2014, defendant filed a motion to dismiss the

State’s   appeal,    arguing   that    the   State    failed    to     meet   the

certification requirements of N.C.G.S. § 15A-979(c) because the

State addressed its certificate to “the court” rather than to

the trial court judge.       We disagree.

    North Carolina General Statutes, section 15A-979(c) states

that:

           An order by the superior court granting a
           motion to suppress prior to trial           is
           appealable to the appellate division . . .
           upon certificate by the prosecutor to the
           judge who granted the motion that the appeal
           is not taken for the purpose of delay and
           that the evidence is essential to the case.

N.C.G.S. § 15A-979(c) (2013).

    The    State     noted     the    following      in   its       certificate,

“Certification Under N.C.G.S. § 15A-979(c)”:

           THE   STATE   OF    NORTH CAROLINA,    by   the
           undersigned assistant district attorney and
           pursuant to N.C.G.S. §§ [sic] 15A-979(c),
           having given notice of appeal to the Court
           of Appeals from the pretrial order of the
           trial   court    granting  defendant=s    [sic]
           motion to suppress evidence in this case,
           certifies to the court that the appeal is
           not taken for the purpose of delay and that
           the evidence suppressed is essential to the
           prosecution of the case.

    Defendant       contends   that    because    N.C.G.S.      §    15A-979(c)

requires that the certificate be presented to the                     judge who
                                        -6-
granted the motion, any deviation from this statutory language

as presented in the certificate renders the State’s certificate

void. Defendant’s argument lacks merit, as the word “judge” can

be, and is, synonymous with “the court.”

                 When construing statutes, this Court
           first    determines whether   the  statutory
           language is clear and unambiguous.    If the
           statute is clear and unambiguous, we will
           apply the plain meaning of the words, with
           no need to resort to judicial construction.
           However, when the language of a statute is
           ambiguous, this Court will determine the
           purpose of the statute and the intent of the
           legislature in its enactment.

Wiggs v. Edgecombe Cnty., 361 N.C. 318, 322, 643 S.E.2d 904, 907

(2007) (citations and quotation omitted).                   We agree with the

State that the term “judge” is ambiguous, as “judge” can also

mean   “court.”         See    BLACK’S LAW    DICTIONARY   405   (9th   ed.   2009)

(defining “court” as “[a] governmental body consisting of one or

more   judges     who    sit    to   adjudicate     disputes     and    administer

justice[,]” or as “[t]he judge or judges who sit on such a

governmental body”).            Moreover, in looking at the purpose of

N.C.G.S. § 15A-979(c), it is clear that this statute is intended

to be a procedural safeguard for defendants against the State,

rather than an insurmountable burden for the State.                     Our Courts

have held that the certification requirement under N.C.G.S. §

15A-979(c) is paramount in that by failing to file a certificate
                                             -7-
pursuant to N.C.G.S. § 15A-979(c), the State may not pursue its

appeal.     See State v. Judd, 128 N.C. App. 328, 329—30, 494

S.E.2d 605, 606 (1998) (holding this Court lacked jurisdiction

where the State failed to file a certificate as required by

N.C.G.S. § 15A-979(c)); State v. Blandin, 60 N.C. App. 271, 272—

73, 298 S.E.2d 759, 759—60 (1983) (dismissing the State’s appeal

for failure to timely file a certificate pursuant to N.C.G.S. §

15A-979(c),     as     “[t]o    give     the    State     the    right   to    file    the

certificate after the case has already been docketed in the

appellate      court    would     be    to     reduce    the     requirement      of   the

certificate to a nullity. If G.S. § 15A-979(c) means anything at

all, it means that the Court is bound to dismiss this appeal.”).

    The     language      of    such     a     certification,        however,     is   not

similarly      critical.          Rather,          the   certificate      must     merely

acknowledge      that    the    State’s        “appeal     is    not   taken     for   the

purpose   of    delay     and   that     the       evidence     is   essential    to   the

case.”         Provided     the        certificate       contains      this      required

statement and is timely filed with the trial court, the actual

wording of the certificate in its addressing of the trial court

is flexible.      See State v. Turner, 305 N.C. 356, 359, 289 S.E.2d

368, 370 (1982) (holding that the “two obvious purposes of the

certificate [pursuant to N.C.G.S. § 15A-979(c)] are to require
                                                -8-
the   prosecutor          to    certify       that    the   appeal    is       not   taken   for

purpose of delay, and that the suppressed evidence is essential

to the case”).                 As it should be clear from the context of

N.C.G.S. § 15A-979(c) that in filing a certificate the State is

addressing the judge who granted the motion upon which the State

wishes to appeal, we find it permissible for the State to use

terms     such       as     “judge,”       “the       court,”    “this          court,”      etc.

Accordingly, we deny defendant’s motion to dismiss the State’s

appeal.

                                _________________________

      On appeal, the State argues that the trial court erred in

granting     defendant’s             motion     to    suppress      the       results   of    the

chemical blood test.             We disagree.

      “The     standard         of     review    in    evaluating         a    trial    court's

ruling    on     a   motion       to    suppress       is    that    the       trial    court's

findings     of      fact      are    conclusive       on    appeal       if    supported      by

competent evidence, even if the evidence is conflicting.”                                 State

v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003)

(citation      and        quotation       omitted).          Where        a    trial    court's

conclusions of law are supported by findings of fact we will not

disturb those conclusions on appeal.                        State v. Logner, 148 N.C.

App. 135, 137—38, 557 S.E.2d 191, 193—94 (2001).
                                      -9-
      Specifically, the State argues that evidence of the results

of   the   chemical    blood   test   was       admissible    because     although

Deputy     Wilkerson   did   not   re-advise      defendant    of   his   implied

consent rights, defendant signed a consent form for the testing.

      North Carolina General Statutes, section 20-16.2, Basis for

Officer to Require Chemical Analysis; Notification of Rights,

holds that:

                  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. Any
             law enforcement officer who has reasonable
             grounds to believe that the person charged
             has committed the implied-consent offense
             may obtain a chemical analysis of the
             person.

                  Before any type of chemical analysis is
             administered the person charged shall be
             taken before a chemical analyst authorized
             to administer a test of a person's breath or
             a law enforcement officer who is authorized
             to administer chemical analysis of the
             breath, who shall inform the person orally
             and also give the person a notice in writing
             that:

                  (1) You have been charged with an
                  implied-consent offense.      Under the
                  implied-consent law, you can refuse any
                  test, but your driver[‘]s license will
             be   revoked for one year and could be
             revoked   for a longer period of time under
             certain   circumstances, and an officer can
             compel    you to be tested under other laws.

                  .                         .                       .
                                  -10-


               (3) The test results, or the fact of
          your      refusal, will be admissible in
          evidence at trial.


N.C. Gen. Stat. § 20-16.2(a)(1, 3) (2013) (emphasis added).

    Deputy Wilkerson read and gave to defendant a copy of his

implied   consent    rights,   and       defendant    signed   the   form

acknowledging   he   understood   these     rights.      Defendant   then

refused to take a breath test.           Where a defendant refuses to

take a breath test, such as here, the State may then seek to

administer a different type of chemical analysis such as a blood

test pursuant to North Caroline General Statutes, Section 20-

139.1(b5), Subsequent Tests Allowed:

          A person may be requested, pursuant to G.S.
          20-16.2, to submit to a chemical analysis of
          the person's blood or other bodily fluid or
          substance in addition to or in lieu of a
          chemical analysis of the breath, in the
          discretion of a law enforcement officer . .
          . .    If a subsequent chemical analysis is
          requested pursuant to this subsection, the
          person shall again be advised of the implied
          consent rights in accordance with G.S. 20-
          16.2(a). A person's willful refusal to
          submit to a chemical analysis of the blood
          or other bodily fluid or substance is a
          willful refusal under G.S. 20-16.2. If a
          person willfully refuses to provide a blood
          sample under this subsection, . . . then a
          law enforcement officer with probable cause
          to   believe  that   the   offense  involved
          impaired driving or was an alcohol-related
          offense made subject to the procedures of
                                             -11-
               G.S. 20-16.2 shall seek a warrant to obtain
               a blood sample.

N.C. Gen. Stat. §20-139.1(b5) (2013) (emphasis added).                                   N.C.G.S.

§§    20-16.2    and    20-139.1      must        be     read    in    pari        materia      “to

determine the procedures governing the administering of chemical

analyses.” Nicholson v. Killens, 116 N.C. App. 473, 478, 448

S.E.2d 542, 544 (1994).               “However, we conclude that G.S. 20-

16.2,    and     that    statute        alone,          sets    forth       the        procedures

governing       notification       of        rights       pursuant          to     a     chemical

analysis.”       Id. at 478, 448 S.E.2d at 544—45.                      As such, although

the    State    is     correct   in     asserting            that     it    could       seek    to

administer a blood test to defendant after defendant refused to

take a breath test1, the State was required, pursuant to the

mandates of N.C.G.S. § 20-16.2(a) and as reiterated by N.C.G.S.

§ 20-139.1(b5), to re-advise defendant of his implied consent

rights    before       requesting       he       take    a     blood       test.         This   is

particularly important when, as here, defendant had refused a

breath test after being advised of his rights and acknowledging

them.       "Statutes      imposing          a     penalty       are       to     be     strictly

construed[.]"        Id. at 477, 448 S.E.2d at 544 (citation omitted);



1
  The statute clearly provides that upon a defendant’s refusal to
provide a blood sample as requested, law enforcement may seek a
warrant to obtain the blood sample for testing. N.C.G.S. § 20-
139.1(b5).
                                  -12-
see also State v. Gray, 28 N.C. App. 506, 506—07, 221 S.E.2d

765, 765—66 (1976) (holding that failure of the State to show a

breathalzyer   test     was   properly     administered          required     the

suppression of all evidence stemming from that test); State v.

Shadding, 17 N.C. App. 279, 283, 194 S.E.2d 55, 57 (1973) (“The

failure [of the State] to establish that defendant was accorded

his statutory rights rendered the results of the breathalyzer

test inadmissible in evidence, and its admission over objection

constituted prejudicial error.”); State v. Warf, 16 N.C. App.

431, 431—32, 192 S.E.2d 37, 38 (1972) (holding that where the

State fails to carry its burden of showing that a breathalyzer

test was properly administered, evidence of that test must be

suppressed).       Accordingly,   the    trial   court     did    not   err   in

granting defendant’s motion to suppress as to the chemical blood

test.

     The   State   further    argues    that   even   if   N.C.G.S.      §    20-

139.1(b)(5) is applicable, the trial court erred in granting

defendant’s motion to suppress because any statutory violation

was “technical and not substantial and the defendant has shown

no prejudice” because defendant had been advised of his implied

consent rights as to the breath test “less than an hour before

the blood test.”      The State cites State v. Green, 27 N.C. App.
                                          -13-
491, 219 S.E.2d 529 (1975), and State v. Buckner, 34 N.C. App.

447, 238 S.E.2d 635 (1977), in support of its argument.

      In    Green,     the    defendant          alleged        that    the    arresting

officer’s “garbled” reading of the defendant’s implied consent

rights     violated    N.C.G.S.      §    20-16.2.         This       Court    disagreed,

finding that the arresting officer’s reading of the defendant’s

implied consent rights, coupled with the defendant receiving a

printed copy of those rights and signing a consent form prior to

taking a breath test, was sufficient.                    Green, 27 N.C. App. at

494—95, 219 S.E.2d at 531—32.

      In Buckner, the defendant was properly read and given a

copy of his implied consent rights but did not sign a form

acknowledging his understanding of these rights before he took a

breath     test.   This      Court       found    that     the     breath      test    was

admissible into evidence as it was clear from the record that

the   defendant      was   properly       instructed       as    to    his    rights   and

failed to exercise those rights.                 Buckner, 34 N.C. App. at 451,

238 S.E.2d at 638.

      Both Green and Buckner are distinguishable from the instant

case.      In Green and Buckner, each defendant was advised of his

implied     consent    rights   before       being    asked       to    take    a   single

chemical analysis – a breath test.                 In each case, the technical
                                         -14-
deficiencies raised by the defendants did not override the facts

showing each defendant was advised of and given copies of his

implied consent rights prior to testing.                   Here, defendant was

advised of his implied consent rights and thereafter refused to

take the initial chemical breath test.                    When the State then

sought to administer a second chemical analysis, a blood test,

defendant was not advised of his implied consent rights as to

that    test.       A    failure    to   advise   cannot    be    deemed    a    mere

technical and insubstantial violation.                The State was required

to re-advise defendant of his implied consent rights prior to

the    second   chemical        analysis   test   –   a   blood     test.       Since

“[s]tatutes imposing a penalty are to be strictly construed[,]"

the State’s failure to adhere to the requirements of N.C.G.S. §§

20-16.2 and 20-139.1 must result in suppression of the results

of    the   blood       test.      Accordingly,   the     State’s    argument     is

overruled.

       Affirmed.

       Judges STEPHENS and DILLON concur.
