                             NO. COA14-129

                  NORTH CAROLINA COURT OF APPEALS

                     Filed: 16 September 2014


STATE OF NORTH CAROLINA


    v.                              Mecklenburg County
                                    No. 10 CRS 250836
BRUCE ALLEN TOWNSEND, JR.,
     Defendant.


    Appeal by defendant from judgment entered 1 August 2013 by

Judge Susan E. Bray in Mecklenburg County Superior Court.       Heard

in the Court of Appeals 4 June 2014.


    Attorney General Roy Cooper, by Special         Deputy   Attorney
    General Lars F. Nance, for the State.

    Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
    appellant.


    BRYANT, Judge.


    Defendant’s Knoll motion was properly dismissed where the

magistrate followed N.C. Gen. Stat. § 15A-511(b) in informing

defendant of his rights and in setting an option bond such that

any technical statutory violation committed by the magistrate

was not prejudicial to defendant.      Where the State presented

sufficient evidence such that a reasonable person could believe

defendant committed the offense of driving while impaired, the
                                         -2-
trial court properly denied defendant’s motion to suppress for

lack    of   probable        cause.      A     technical       statutory      violation

committed by the trial court during a pre-trial hearing but not

at trial did not result in error that would entitle defendant to

a new trial.           Where the trial court determined that a driving

while    impaired       checkpoint     was    established       for    a    legitimate

primary purpose and that the Brown factors were met, defendant’s

motion    to    suppress      evidence   of     the    checkpoint       was    properly

denied.

       On 21 October 2010, defendant Bruce Allen Townsend, Jr.,

was arrested for driving while impaired.                       On 24 August 2011,

defendant was convicted in Mecklenburg County District Court of

driving        while     impaired      and     sentenced        to     thirty        days

imprisonment.          The District Court suspended defendant’s sentence

and    placed    him    on    unsupervised     probation       for    twelve       months.

Defendant       was    further    ordered     to   obtain      a     substance       abuse

assessment, comply with recommended treatment, complete twenty-

four hours of community service, and pay courts costs, a $100.00

fine, and a $250.00 community service fee.

       Defendant       appealed   to   Superior       Court,    and    on     30    August

2012, was tried before a jury during the criminal session of

Mecklenburg County Superior Court, the Honorable Susan E. Bray,
                                        -3-
Judge presiding.      At trial, the State’s evidence tended to show

the following.

      On   the   evening    of   21    October    2010,    a   checkpoint      was

established in the 7200 block of Providence Road in Charlotte by

the   Charlotte-Mecklenburg           Police   Department      to     check    for

impaired    drivers    and       other    vehicular       infractions.          At

approximately 11:28 p.m., defendant drove up to the checkpoint

where he encountered Officer Todd Davis.              Officer Davis engaged

defendant in conversation and noticed that defendant emitted an

odor of alcohol and had red, bloodshot eyes.                   When asked by

Officer Davis whether he had had anything to drink that evening,

defendant responded that he had consumed several beers earlier.

Officer Davis administered two alco-sensor tests to defendant;

both tests were positive for alcohol.

      Officer Davis then asked defendant to perform several field

sobriety    tests.         Officer     Davis     testified     that     when    he

administered a horizontal gaze nystagmus test to defendant, he

noticed three signs of intoxication.             On a “walk and turn” test,

defendant exhibited two signs of intoxication, and on a “one leg

stand” test, defendant showed one sign of intoxication.                  Officer

Davis also requested that defendant recite the alphabet from J
                                             -4-
to    V,   which    defendant        did    without    incident.       Officer       Davis

subsequently arrested defendant for driving while impaired.

       Defendant was taken to a Breath Alcohol Testing vehicle

located at the checkpoint where he blew a 0.10 on his first test

and    a   0.09    on    his    second      test.      Officer      Davis   then     drove

defendant     to    the        Mecklenburg     County     jail.        Defendant       was

admitted     to    the     jail      at    12:56    a.m.,     appeared      before     the

magistrate at 2:54 a.m., and was released to his wife’s custody

at 4:45 a.m.

       Defendant was convicted by a jury of driving while impaired

and sentenced by the trial court to sixty days imprisonment.

Defendant’s        sentence       was      suspended    and    he     was   placed      on

unsupervised probation for twenty-four months.                          Defendant was

also ordered to pay court costs, a $100.00 fine, and a $250.00

community service fee; perform twenty-four hours of community

service;     surrender         his   driver’s       license    to    the    clerk;     not

operate a motor vehicle until his license is restored; and to

complete all treatments recommended by his alcohol assessment.

Defendant appeals.

                           _______________________________

       On appeal, defendant raises four issues as to whether the

trial court: (I) erred in denying defendant’s motion to dismiss
                                             -5-
pursuant    to   defendant’s         Knoll     motion;         (II)    erred           in   denying

defendant’s motion to suppress for lack of probable cause; (III)

abused its discretion in denying defendant’s motion to redact

evidence of the alco-sensor test; and (IV) erred in denying

defendant’s      motion       to    suppress       evidence          resulting           from    the

checkpoint.

                                                   I.

                                           Knoll Motion

    Defendant         first    argues       that        the    trial        court        erred   in

denying his Knoll motion to dismiss.                     We disagree.

    A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369

S.E.2d    558    (1988),      alleges       that    a    magistrate          has       failed    to

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

communicate      with    counsel,          family,       and    friends,           and      of   the

general    circumstances           under    which       he    may    secure        his      release

pursuant to N.C. Gen. Stat. § 15A-511.                              See N.C.G.S. § 15A-

511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (“Upon

a defendant's arrest for DWI, the magistrate is obligated to

inform     him   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.” (citation

omitted)).       If a defendant is denied these rights, the charges
                                       -6-
are subject to being dismissed.              Knoll, 322 N.C. at 544—45, 369

S.E.2d at 564.       “[I]n those cases arising under N.C.G.S. § 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.”     Id.    at   545,   369    S.E.2d      at   564.      On   appeal,     the

standard of review is whether there is competent evidence to

support the trial court’s findings of fact and its conclusions

of law.     State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d

540, 548 (1982) (citation omitted).                 “If there is a conflict

between    the     state's   evidence        and    defendant's        evidence    on

material facts, it is the duty of the trial court to resolve the

conflict and such resolution will not be disturbed on appeal.”

Id. (citation omitted).

    Defendant       raised   his   Knoll      motion     during     his   pre-trial

hearing, contending he was denied his right to communicate with

counsel and friends, and that this denial to have others observe

him resulted in substantial prejudice.

    In its order denying defendant’s motion to dismiss pursuant

to Knoll, the trial court made the following findings of fact:

           1. Officer Davis stopped [defendant] at a
           checkpoint    on    Providence  Road    at
           approximately 11:28pm on Thursday, October
           21, 2010.
                     -7-


2. Defendant submitted to portable breath
tests and had a positive reading for
alcohol.

3. Officer Davis took Defendant to [the
Blood Alcohol Testing] mobile unit for [an]
intoxilyzer   test.  Defendant   signed [a]
rights [form] at 11:55pm, acknowledging his
right to call an attorney or witness.

4. Defendant blew 0.09 on Intox EC/IR-II.

5. Defendant did not at any     time   call   a
witness or ask for a witness.

6. Defendant did call his wife . . . to let
her know he had been arrested, [and] told
her he or someone would call her later to
come pick him up.

7. Officer Davis transported Defendant to
[the] Mecklenburg County Jail, where he was
received   at  approximately  12:56  am  on
October 22, 2010.

8. At the jail, Defendant had his property
checked, was booked, saw the nurse, [and]
was fingerprinted [and] photographed.

9. Officer Davis submitted his arrest paper
work   and   charging   affidavit  to   the
magistrate.

10. Defendant signed [an] implied consent
offense notice (AOC-CR-271) in front of
[the] magistrate at 2:34am, giving his
[wife’s] name and phone number as a contact
person.

11. [The] [m]agistrate had [Officer Davis’s]
information about the charge, BAC results,
information from Defendant about address,
length   of   employment,   etc.   and   set
                          -8-
    conditions of release.     Those conditions
    were a $1000 secured bond or a $1000
    unsecured release to a sober responsible
    adult with ID or any terms or conditions of
    pretrial  services  if   accepted  by   the
    program.

    12. Some official from the jail called
    [defendant’s wife] to inform her that she
    could come pick up Defendant. She left her
    home around 3am and arrived at the jail
    around 3:15 or 3:20am to pick up Defendant.

    13. [Defendant’s wife] waited for about 20
    minutes in the wrong area of the jail, then
    went to another area, spoke with appropriate
    personnel   around   3:52am,  [and]   signed
    Defendant out at 4:21am (after jailers
    verified he had no outstanding criminal
    warrants, was medically cleared, retrieved
    his property, etc.).

The trial court then made the following conclusions of law:

    In   accordance  with   NCGS  15A-534(a),  a
    judicial official, in determining conditions
    of pretrial release, must impose [at least]
    one of the following 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 in the full
                               -9-
         amount of the bond, by a mortgage pursuant
         to NCGS 58-     74-5, or by at least one
         solvent surety.

         Further, in accordance with NCGS 15A[-
         ]534(b), the judicial official, in granting
         pretrial release, must impose condition (1),
         (2) or (3) in subsection (a) above unless he
         determines    that    such   release   will   not
         reasonably assure the appearance of the
         defendant as required; will pose a danger of
         injury to any person; or is likely to result
         in destruction of evidence, subornation of
         perjury,    or   intimidation     of    potential
         witnesses. Upon making the determination,
         the judicial official must then impose
         condition    (4)   in    subsection   (a)   above
         instead of condition (1), (2), or (3) and
         must record the reasons for doing so in
         writing to the extent provided in the
         policies or requirements issued by the
         senior    resident     superior    court    judge
         pursuant to NCGS 15A-535(a).

         In this matter, the magistrate’s terms and
         conditions   of   release   for   [defendant]
         included a combination of conditions (2) and
         (3), an unsecured bond and release to a
         sober responsible adult with ID, that person
         being [defendant’s wife]. Defendant never
         asked for witnesses; in fact [defendant]
         only asked his wife to come pick him up.

     North Carolina General Statutes, section 15A-534, provides

that:

              In determining which conditions of
         release to impose, the judicial official
         must, on the basis of available information,
         take    into   account   the    nature   and
         circumstances of the offense charged; the
         weight    of  the   evidence   against   the
         defendant; the defendant's family ties,
                                       -10-
             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.

N.C. Gen. Stat. § 15A-534(c) (2013).                   “If the provisions of the

. . . pretrial release statutes are not complied with by the

magistrate,     and   the    defendant     can    show    irreparable       prejudice

directly     resulting      from   [this   noncompliance], the         DWI    charge

must be dismissed.”          State v. Labinski, 188 N.C. App. 120, 126,

654 S.E.2d 740, 744 (2008) (citation omitted).

      In its findings of fact and conclusions of law, the trial

court   noted      that   defendant    had       the    opportunity    to    contact

counsel and friends to observe him.                     A review of the record

shows that defendant had several opportunities to call counsel

and friends to observe him and help him obtain an independent

chemical analysis, but that defendant failed to do so.                      In fact,

the record shows that defendant asked that his wife be called,

but   only   for    the   purpose     of   telling       her   that   he    had   been

arrested.     As such, defendant was not denied his rights pursuant

to Knoll.
                                           -11-
       Defendant further contends his rights were violated because

the magistrate ordered defendant held under a $1,000.00 secured

bond    without       justification    and        prior   to   meeting     with   him.

Defendant cites State v. Labinski in support of his argument.

       In Labinski, the defendant was arrested for driving while

impaired.       Id. at 122, 654 S.E.2d at 741.             The defendant did not

request that she be observed by witnesses, nor did she seek to

have an independent chemical analysis conducted, even though her

friends were at the detention center to help her.                        Id. at 122,

654    S.E.2d    at    741—42.   The       magistrate     gave   the     defendant    a

$500.00 secured bond without making any findings of fact as to

why a secured bond was required.                  Id. at 122—23, 654 S.E.2d at

742.      On appeal, this Court determined that the magistrate’s

failure to make findings as to why a secured bond was necessary

amounted to a statutory violation.                 Id. at 126—27, 654 S.E.2d at

744—45.     However, this Court affirmed the trial court, finding

that    despite       the   magistrate’s          commission     of    a     statutory

violation, the defendant failed to show how that violation was

prejudicial to her.         Id. at 127—28, 654 S.E.2d at 745.

       Here,    the    conditions     of    the    release     order   did    not,   as

defendant contends, strictly impose a $1,000.00 secured bond on

him.     Rather, as noted by the trial court in its findings of
                                   -12-
fact, the magistrate set an option bond that gave defendant a

choice between paying a $1,000.00 secured bond or a $1,000.00

unsecured bond and being released to a sober, responsible adult;

defendant was eventually released to his wife.                 Defendant now

challenges the secured bond option, arguing that the magistrate

was required to make written findings of fact as to the terms of

defendant’s option bond.

      Pursuant to N.C. Gen. Stat. § 15A-534(a), a magistrate is

not   required   to   make   written   findings   of   fact    when    setting

conditions of release unless the terms of defendant’s release

require a secured bond.       N.C.G.S. § 15A-534(a) (2013).           As such,

although the magistrate was not required to make any written

findings of facts in the option bond when imposing the condition

of allowing defendant to pay an unsecured bond and be released

to a sober, responsible adult, the magistrate was required to

make written findings as to the option bond’s other potential

condition for release — a secured bond.

      However, even though the magistrate may have committed a

technical    statutory       violation,   defendant      has     failed     to

demonstrate how he was prejudiced as a result.                 Defendant was

not released on a secured bond — he was instead released on an

unsecured bond to the custody of his wife.             Therefore, even had
                                     -13-
the magistrate been required to make findings of fact as to the

secured bond option, no secured bond was imposed, and defendant

cannot show prejudice.        See Labinski, 188 N.C. App. at 127—28,

654   S.E.2d   at   745   (holding   that     even   though   the   magistrate

committed a technical statutory violation by failing to make

findings of fact regarding a secured bond, the defendant was

unable to show how such a violation prejudiced her).                 Moreover,

here, defendant was afforded his statutory right to pretrial

release and his right to communicate with counsel and friends.

Accordingly, defendant’s argument is overruled.

                                        II.

                                Probable Cause

      Next, defendant contends the trial court erred in denying

defendant’s motion to suppress for lack of probable cause.                 We

disagree.

      We note at the outset that defendant has not assigned error

to the trial court's findings of fact, and those findings are

therefore binding on appeal.          In re S.N.H. & L.J.H., 177 N.C.

App. 82, 83, 627 S.E.2d 510, 512 (2006) (citation omitted).               Our

review is thus limited to considering whether the trial court

erred by concluding, as a matter of law, that there was probable

cause to arrest defendant for driving while impaired.                     This
                                        -14-
Court reviews conclusions of law de novo.                     State v. Ripley, 360

N.C. 333, 339, 626 S.E.2d 289, 293 (2006) (citations omitted).

                  Probable cause for an arrest is a
             reasonable ground of suspicion, supported by
             circumstances    sufficiently   strong    in
             themselves to warrant a cautious man in
             believing   the   accused   to  be   guilty.
             To justify a warrantless arrest, 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. The existence of such grounds is
             determined by the practical and factual
             considerations of everyday life on which
             reasonable and prudent people act. If there
             is no probable cause to arrest, evidence
             obtained as a result of that arrest and any
             evidence resulting from the defendant's
             having been placed in custody, should be
             suppressed.

State v. Tappe, 139 N.C. App. 33, 36—37, 533 S.E.2d 262, 264

(2000) (citations and quotation omitted).

       Defendant    argues     the    trial     court    erred       in   denying    his

motion to suppress for lack of probable cause because “there was

no    set   of   facts   in    the     case    at    hand     that    would   lead    a

reasonable,      cautious     person    to    believe       that     [defendant]     was

driving while impaired.”             Defendant’s argument lacks merit, as

the    evidence    supports     the     trial       court’s    determination        that

Officer Davis had probable cause to arrest defendant.

       In its order denying defendant’s motion to suppress for

lack of probable cause, the trial court noted that when Officer
                                     -15-
Davis   stopped   defendant     at    the    checkpoint,       he   immediately

noticed that defendant had “bloodshot eyes and a moderate odor

of alcohol about his breath.”         Defendant admitted to “drinking a

couple of beers earlier” and had “stopped drinking about an

hour” prior to being stopped at the checkpoint.                Two alco-sensor

tests administered to defendant yielded positive results, and

defendant exhibited clues indicating impairment on three field

sobriety tests.         Officer Davis determined that defendant was

“under the influence of some impairing substance,” regardless of

the positive alco-sensor test results.            The trial court further

acknowledged Officer Davis’ twenty-two years’ experience as a

police officer.

      Defendant argues that because he did not exhibit signs of

intoxication such as slurred speech, glassy eyes, or physical

instability, there was insufficient probable cause for Officer

Davis to arrest defendant for driving while impaired.                   We are

not persuaded; as this Court has held, the odor of alcohol on a

defendant’s breath, coupled with a positive alco-sensor result,

is   sufficient   for    probable    cause   to   arrest   a    defendant   for

driving while impaired.       See State v. Rogers, 124 N.C. App. 364,

369—70, 477 S.E.2d 221, 224 (1996); see also State v. Fuller,

176 N.C. App. 104, 109, 626 S.E.2d 655, 658 (2006) (“The results
                                       -16-
of   an   alcohol    screening     test    may   be    used     by   an    officer    to

determine if there are reasonable grounds to believe that a

driver has committed an implied-consent offense[.]” (citations

and quotation omitted)).              Here,      Officer        Davis     noted     that

defendant    had     bloodshot     eyes,     emitted       an   odor      of   alcohol,

exhibited    clues    as    to    intoxication        on   three     field     sobriety

tests, and gave positive results on two alco-sensor tests.                            As

such, there was sufficient probable cause for Officer Davis to

arrest defendant for driving while impaired.

                                       III.

      Defendant      next   argues    that    the     trial     court      abused    its

discretion in denying            his request     to redact         evidence of the

alco-sensor test.           Specifically, defendant contends the trial

court’s admission of the alco-sensor test’s numerical results

was an abuse of discretion, thus entitling him to a new trial.

We disagree.

      On appellate review, “[a] trial court may be reversed for

abuse of discretion only upon a showing that its actions are

manifestly unsupported by reason.”               State v. Rasmussen, 158 N.C.

App. 544, 555, 582 S.E.2d 44, 53 (2003) (citation omitted).

      Although the results of a defendant’s alco-sensor test are

not admissible as substantive evidence, State v. Bartlett, 130
                                          -17-
N.C. App. 79, 82, 502 S.E.2d 53, 55 (1998), an officer who

arrests a defendant for driving while impaired may testify that

a   defendant’s     alco-sensor       test        indicated    the       presence    of

alcohol.      Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658.

     Defendant contends the trial court abused its discretion

during   the    pre-trial       hearing    by     allowing    into       evidence   the

numerical results of defendant’s alco-sensor test.                         During the

pre-trial      hearing,   the    results     of    the   alco-sensor        test    were

offered to the trial court as part of Officer Davis’s paperwork

which    was    submitted      to   the     magistrate;       the    paperwork      was

proffered by the State to show that Officer Davis had probable

cause    to     arrest    defendant         for     driving     while       impaired.

Specifically, Officer Davis’ arrest affidavit described how he

encountered       defendant,        his      observations           of     defendant,

defendant’s performance on the field sobriety tests, and the

numerical      results    of     defendant’s       alco-sensor       test.          This

admission of the actual numerical results of defendant’s alco-

sensor test was error, as only “a positive or negative result on

an alcohol screen test” may be admissible in court. See N.C.

Gen. Stat. § 20-16.3 (2013) (“The fact that a driver showed a

positive or negative result on an alcohol screening test, but
                                           -18-
not the actual alcohol concentration result . . . is admissible

in a court[.]”).

       However,    while      we   note    the    technical      violation      of    the

statute, we do not agree with defendant                        that this violation

entitles him to a new trial. “A mistrial is appropriate only

when    there    are   such    serious      improprieties       as    would    make    it

impossible to attain a fair and impartial verdict under the

law.” State v. Blackstock, 314 N.C. 232, 243—44, 333 S.E.2d 245,

252 (1985) (citation omitted).

       Here, the numerical results of defendant’s alco-sensor test

were admitted into evidence only during the trial court’s pre-

trial hearing on defendant’s motions to suppress and dismiss;

the results were never introduced into evidence before the jury.

Moreover, even without the results of the alco-sensor test, the

State     presented    sufficient         evidence,      via    the     testimony      of

Officer Davis, to survive defendant’s motion to dismiss for lack

of   probable     cause.      As   such,    despite      committing      a    technical

statutory       violation     by   admitting       the    numerical       results      of

defendant’s alco-sensor test, the trial court did not err in

denying    defendant’s        motion   to     dismiss     for    lack    of   probable

cause.
                                            -19-
       Further, when Officer Davis testified at trial before the

jury as to the circumstances under which he encountered and

eventually       arrested      defendant          for    driving     while    impaired,

Officer Davis did not discuss defendant’s alco-sensor test other

than    to   state     that    defendant      was       administered     a   preliminary

breath test along with field sobriety tests as part of Officer

Davis’ investigation.           When asked at trial about how he came to

form an opinion as to defendant’s state of being on the evening

of 21 October 2010, Officer Davis did not mention the alco-

sensor test at all:

               Based on my conversation with [defendant],
               with    the    physical    observations    of
               [defendant] when I was talking to him at the
               car, based on [defendant’s] standardized
               field sobriety tests, I did form the
               conclusion or the opinion that [defendant]
               had consumed a sufficient amount of some
               impairing substance so as to appreciably
               impair his mental and/or physical faculties.

Indeed,      despite    defendant’s       contentions        to    the   contrary,     the

actual    numerical      results     of     his    alco-sensor      test     were    never

admitted into evidence at trial before the jury.                              Therefore,

because this evidence was never admitted before the jury, it

could    not    and    did    not   cause    defendant       to    receive    an    unfair

verdict that would entitle him to a new trial.                               Defendant’s

argument is therefore overruled.
                                        -20-
                                         IV.

       Finally,     defendant      contends     the    trial       court    erred    in

denying    his    motion    to    suppress     evidence      resulting      from    the

checkpoint.       We disagree.

                 When considering a challenge to a
            checkpoint,   the   reviewing  court   must
            undertake a two-part inquiry to determine
            whether the checkpoint meets constitutional
            requirements.   First,   the   court   must
            determine the primary programmatic purpose
            of the checkpoint. . . .

                 Second, if a court finds that police
            had   a   legitimate   primary   programmatic
            purpose for conducting a checkpoint . . .
            [the court] must judge its reasonableness,
            hence, its constitutionality, on the basis
            of the individual circumstances.

State v. Veazey, 191 N.C. App. 181, 185—86, 662 S.E.2d 683, 686—

87 (2008) (citations and quotations omitted).

       Defendant    argues       the   trial   court    erred      in     denying   his

motion    to     suppress    evidence     resulting         from    the    checkpoint

because the checkpoint lacked an acceptable primary purpose and

was,     therefore,    unconstitutional.               In    its    order     denying

defendant’s       motion    to    suppress,     the    trial       court    made    the

following findings of fact:

            The Court considered all evidence presented,
            as well as the arguments and contentions of
            counsel, and makes the following findings of
            fact by a preponderance of the evidence:
                                       -21-
              1.   The      Charlotte    Mecklenburg   Police
              Department,    under supervision of Sgt. David
              Sloan, set    up a DWI check point near [the]
              7200 block    of Providence Road between 11pm
              October 21,   2010 and 3am October 22, 2010.

              2. Sgt. Sloan chose the location because
              over 30 traffic fatalities had occurred in
              the vicinity since 2006, with about half of
              those involving impaired driving.

              3. The area is near the Arboretum Shopping
              Center, which houses several restaurants and
              other   businesses  which   serve  or   sell
              alcohol.

              4. The check point was set up in compliance
              with NCGS 20-16.3A: there was a written
              plan; Sgt. Sloan briefed the 25 officers
              from 6 different agencies who were operating
              the checkpoint; every vehicle was to be
              stopped and was stopped; signs notifying
              approaching motorists of a DWI check point
              ahead were placed approximately 200 yards
              from [the] check point; [and] non-impaired
              drivers were only delayed about 15 seconds
              each.

The trial court then concluded that the checkpoint was proper

and denied defendant’s motion to suppress.

       Defendant contends the trial court erred in denying his

motion to suppress because the State failed to meet its burden

of demonstrating the checkpoint was set-up for anything other

than    the     improper     purpose     of     general   crime      detection.

Defendant’s      argument    lacks     merit,    as   during   the    pre-trial

hearing on defendant’s motion to suppress, the State presented
                                            -22-
testimony by Sergeant Sloan regarding the checkpoint.                          Sergeant

Sloan testified that the checkpoint was administered according

to a written plan, and that the date for the checkpoint had been

selected almost a year prior to that date based on when the

Blood Alcohol Testing mobile lab would be available.                           Sergeant

Sloan further testified that the location of the checkpoint, in

the 7200 block of Providence Road, was chosen because of the

statistically       high    number      of    impaired       driving    offenses     and

fatalities that had occurred in the Providence Road and Highway

55   corridor.       Further,     Sergeant         Sloan    stated     that    the   main

purpose of the checkpoint was to check for DWIs.

      We    agree    with     the     trial        court’s     findings       that   the

checkpoint was conducted for a legitimate primary purpose, as

the record indicates the checkpoint was established, pursuant to

N.C. Gen. Stat. § 20-16.3, to check all passing drivers for DWI

violations.         See    N.C.G.S.     §    20-16.3       (2013)    (permitting     law

enforcement      agencies    to     set-up     DWI   checkpoints        provided     such

checkpoints are administered according to established, written

plans,     are   well-marked      for    drivers,      and     detain    all    passing

drivers only to the extent necessary to determine if reasonable

suspicion exists that a driver has committed a DWI violation).

      Defendant further contends the trial court erred in denying
                                      -23-
his motion to suppress because the checkpoint was unreasonable

and   therefore     unconstitutional.           After      finding       a   legitimate

programmatic purpose, the trial court must determine whether the

roadblock    was     reasonable     and,       thus,    constitutional.                  “To

determine    whether    a   seizure     at      a   checkpoint       is      reasonable

requires     a    balancing    of     the       public's      interest             and   an

individual's privacy interest.”                State v. Rose, 170 N.C. App.

284, 293, 612 S.E.2d 336, 342 (2005) (citation omitted).                                 “In

order   to   make    this   determination,          this    Court    has       required

application of the three-prong test set out by the United States

Supreme Court in Brown v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d

357, 361, 99 S. Ct. 2637, 2640 (1979).”                    State v. Jarrett, 203

N.C. App. 675, 679, 692 S.E.2d 420, 424—25 (2010) (citation

omitted).    “Under Brown, the trial court must consider [1] the

gravity of the public concerns served by the seizure[;] [2] the

degree to which the seizure advances the public interest[;] and

[3] the severity of the interference with individual liberty.”

Id. at 679, 692 S.E.2d at 425 (citation and quotation omitted).

      “The   first     Brown   factor      —    the    gravity      of       the    public

concerns served by the seizure — analyzes the importance of the

purpose of the checkpoint.            This factor is addressed by first

identifying the primary programmatic purpose . . . and then
                                         -24-
assessing the importance of the particular stop to the public.”

Rose,   170    N.C.   App.      at    294,    612    S.E.2d     at    342    (citation

omitted).

      Here, the State presented evidence that the checkpoint was

intended to screen all passing drivers for DWI violations.                        When

Officer Davis stopped defendant at the checkpoint, Officer Davis

noticed      defendant    had     red,       bloodshot    eyes       and    emitted     a

“moderate odor of alcohol.”              When Officer Davis asked defendant

if defendant had been drinking that evening, defendant responded

that he had consumed several beers.                   Officer Davis then asked

defendant to take an alco-sensor test and perform several field

sobriety tests.       As such, the first Brown factor was met.                        See

State v. Kostick, ___ N.C. App. ___, ___, 755 S.E.2d 411, 420

(2014) (finding the first Brown factor was met where an officer

stopped the defendant at a checkpoint and noticed the defendant

had   red,    bloodshot      eyes,     emitted      an   odor    of    alcohol,       and

admitted to drinking that evening); Veazey, 191 N.C. App. at

191, 662 S.E.2d at 690 (“Both the United States Supreme Court as

well as our Courts have suggested that license and registration

checkpoints     advance      an      important      purpose[.]”       (citation       and

quotation omitted)).

      The second Brown prong examines “the degree to which the
                                            -25-
seizure advance[s] the public interest,” and requires the trial

court to determine whether “[t]he police appropriately tailored

their checkpoint stops to fit their primary purpose.”                         Veazey,

191   N.C.    App.      at    191,    662     S.E.2d       at   690   (citations    and

quotations omitted).

             Our Court has previously identified a number
             of non-exclusive factors that courts should
             consider   when    determining   whether    a
             checkpoint    is   appropriately    tailored,
             including:   whether   police   spontaneously
             decided to set up the checkpoint on a whim;
             whether police offered any reason why a
             particular road or stretch of road was
             chosen for the checkpoint; whether the
             checkpoint had a predetermined starting or
             ending time; and whether police offered any
             reason why that particular time span was
             selected.

Id. (citation omitted).

      In its findings of fact, the trial court found that the

checkpoint had fixed starting and ending times; the checkpoint

was   located    in     the    7200    block       of    Providence   Road,   an   area

located within a mile of a major shopping area where there are

businesses      which        serve    or    sell        alcohol;   the   checkpoint’s

location was selected based on impaired driving statistics; and

the checkpoint was conducted according to a written plan, was

properly marked, and was intended to stop all passing drivers to

check for impaired driving violations.                      These findings of fact
                                   -26-
are supported by the evidence and “indicate that the trial court

considered     appropriate    factors      to    determine      whether   the

checkpoint was sufficiently tailored to fit its primary purpose,

satisfying the second Brown prong.”             Jarrett, 203 N.C. App. at

680—81, 692 S.E.2d at 425.

     “The final Brown factor to be considered is the severity of

the interference with individual liberty.”                Id.   at 681, 692

S.E.2d   at     425.        “[C]ourts     have     consistently     required

restrictions on the discretion of the officers conducting the

checkpoint to ensure that the intrusion on individual liberty is

no   greater   than    is   necessary     to    achieve   the   checkpoint's

objectives.”     Veazey, 191 N.C. App. at 192—93, 662 S.E.2d at

690—91 (citations omitted).

          Courts have previously identified a number
          of non-exclusive factors relevant to officer
          discretion    and     individual      privacy,
          including:   the    checkpoint's     potential
          interference   with   legitimate    traffic[];
          whether police took steps to put drivers on
          notice   of  an   approaching    checkpoint[];
          whether the location of the checkpoint was
          selected by a supervising official, rather
          than by officers in the field[]; whether
          police stopped every vehicle that passed
          through the checkpoint, or stopped vehicles
          pursuant to a set pattern[]; whether drivers
          could see visible signs of the officers'
          authority[]; whether police operated the
          checkpoint pursuant to any oral or written
          guidelines[]; whether the officers were
          subject to any form of supervision[]; and
                               -27-
          whether the officers received permission
          from their supervising officer to conduct
          the checkpoint[.]

Id. at 193, 662 S.E.2d at 691 (citations omitted).       “Our Court

has held that these and other factors are not 'lynchpin[s],’ but

instead [are] circumstance[s] to be considered as part of the

totality of the circumstances in examining the reasonableness of

a checkpoint.”   Id. (citation and quotation omitted).

    As previously discussed, in its findings of fact the trial

court noted the following:

          4. The check point was set up in compliance
          with NCGS 20-16.3A: there was a written
          plan; Sgt. Sloan briefed the 25 officers
          from 6 different agencies who were operating
          the checkpoint; every vehicle was to be
          stopped and was stopped; signs notifying
          approaching motorists of a DWI check point
          ahead were placed approximately 200 yards
          from [the] check point; [and] non-impaired
          drivers were only delayed about 15 seconds
          each.

Such findings meet the third factor of Brown, as “the totality

of the circumstances in examining the reasonableness of [the]

checkpoint” was examined and set forth by the trial court in its

order.   See Kostick, ___ N.C. App. at ___, 755 S.E.2d at 421

(citation omitted) (holding that where the record showed the

trial court heard and weighed the evidence regarding whether a

DWI checkpoint was established for a legitimate primary purpose
                                     -28-
and the checkpoint stops were reasonable, advanced an important

public interest, and were conducted pursuant to a written plan,

the trial court’s denial of the defendant’s motion to suppress

evidence of the checkpoint was affirmed).               Therefore, as the

trial court determined the checkpoint had a legitimate primary

purpose   and   that   the   Brown     factors   were   met,   defendant’s

argument is accordingly overruled.

    No error.

    Judges CALABRIA and GEER concur.
