              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-238

                                 Filed: 16 May 2017

Cabarrus County, No. 12 CRS 051930

STATE OF NORTH CAROLINA,

             v.

DEVRIE LERAN BURRIS, Defendant.


      Appeal by defendant from judgment entered on or about 7 October 2015 by

Judge Martin B. McGee in Superior Court, Cabarrus County. Heard in the Court of

Appeals 22 August 2016.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
      Hathcock, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine
      Whitney Dickinson-Schultz, for defendant-appellant.


      STROUD, Judge.


      Defendant Devrie Leran Burris (“defendant”) appeals from the trial court’s

judgment finding him guilty of impaired driving. On appeal, defendant raises several

issues, including that the trial court erred in denying his motion to suppress self-

incriminating statements made after his driver’s license was retained and without

Miranda warnings. Because we find that defendant was not in custody at the time

his license was retained, we affirm the trial court’s denial of his motion to suppress

the statements. We also hold that the trial court properly denied defendant’s motion
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to suppress the results of the warrantless blood draw due to exigent circumstances

and that the court did not err in denying his motion to dismiss at the close of all the

evidence.

                                          Facts

      On 13 April 2012, Christopher Hill of the Kannapolis Police Department

(“Detective Hill”) responded to a suspicious person call at a Fairfield Inn in Cabarrus

County. After pulling in to the hotel parking lot, Detective Hill observed a red Ford

Explorer “parked in front of the hotel kind of in the unloading area under the

overhang.” A woman was standing outside of the Explorer and defendant was sitting

in the driver’s seat. Detective Hill spoke to the woman standing outside of the car

and to defendant through the passenger side window, which was rolled down. The

vehicle’s engine was not running.

      Detective Hill asked “what they were doing there” and “for their

identifications.” Defendant and the woman responded that they were trying to get a

room, and defendant got out of the driver’s seat to walk around the car to Detective

Hill to hand him his identification. Detective Hill noticed a “strong odor of alcohol

beverage” from defendant when he handed over his driver’s license.            He told

defendant and the woman to “hang tight there in the parking lot area” while he went

inside to talk to the hotel clerk. He learned that the clerk had called because of a




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concern that the actions of defendant and the woman were similar to “a robbery that

happened in a neighboring hotel a night or two before.” 1

        Based on his conversation with the hotel clerk, Detective Hill went back

outside to ask defendant if he was the one driving the vehicle, to which he responded

“yes.” He then began asking defendant questions about where he was traveling and

the route he had taken to the hotel. At some point, Detective Hill checked the

registration on the vehicle and determined that it was registered in defendant’s

name. Detective Hill asked defendant whether he had anything to drink that night,

and defendant responded that he had “a couple drinks.” Defendant told Detective

Hill that he had not had anything to drink since arriving at the hotel. Detective Hill

did not observe any open or unopened containers in or around the red Ford Explorer.

        Detective Hill asked defendant “to submit to field sobriety testing,” and

performed those tests in the parking lot.                  Defendant “showed some signs of

impairment on them.” Detective Hill then asked defendant to submit to a portable

breath sample test, and he obliged, resulting in a reading of .10. At that point,

Detective Hill placed defendant under arrest for driving while impaired and

transported him to the Kannapolis Police Department.




        1 Detective Hill did not say what the clerk told him, if anything, regarding the specifics of any
“actions” of defendant or the woman which aroused his suspicions of a potential robbery. As relevant
to the issues in this case, there is no evidence that the hotel clerk reported anything about when the
Explorer arrived at the hotel or who had been driving it.

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      After arriving at the police station, Detective Hill attempted to perform a

breath test on defendant, but he refused. Since defendant refused a breath test,

Detective Hill took defendant to the hospital to request a blood draw for analysis.

Detective Hill did not seek a warrant for the blood draw. After arriving at the

hospital, Detective Hill informed defendant of his implied consent rights. Defendant

exercised his right to contact a witness, but 30 minutes later, the witness still had

not arrived.    After defendant refused to submit to a blood draw, Detective Hill

directed a nurse to draw blood samples from defendant’s arm. After the blood draw,

Detective Hill transported defendant to the magistrate’s office, where he was

processed and placed in jail.

      Defendant was charged with impaired driving.           He was convicted and

sentenced in district court on 15 April 2014. Defendant appealed to the superior

court. Defendant filed a motion to dismiss on 23 July 2015, and in the motion asked

for suppression of

               any statements made by Defendant as the officer engaged
               in a custodial interrogation of the Defendant without
               advising the Defendant of his right to refrain from
               answering any questions or advising the Defendant of his
               constitutional right to counsel during questioning or any
               other federal, state or statutory rights of an accused in
               police custody regarding the effect of any statement on
               future proceedings.

On 17 August 2015, a hearing was held on defendant’s motion and the trial court

orally denied the motion to suppress statements in open court.


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      Following the 17 August 2015 hearing, the trial court entered an order and a

subsequent amended order denying defendant’s motion. In the amended order, the

court concluded in relevant part:

              2.   Miranda warnings and a waiver of those rights
                   apply only before officers begin a custodial
                   interrogation. Miranda v. Arizona, 384 U.S. 436.
                   Without facts showing both “custody” and
                   “interrogation,” the Miranda rule is inapplicable.

              3.   The U.S. Supreme Court has ruled that a person is
                   in custody under the Miranda rule when officer [sic]
                   have formally arrested the person or have restrained
                   a person’s movement to a degree associated with a
                   formal arrest. Berkemer v. McCarty, 468 U.S. 420.

              4.   The North Carolina Supreme Court has made clear
                   that it follows the U.S. Supreme Court on the
                   meaning of custody. State v. Buchanan, 353 [N.C.]
                   332.

              5.   In the present case, the Defendant falls short of the
                   test for custody, therefore the statements made
                   before arrest should not be suppressed.

              6.   Under the totality of the above-referenced
                   circumstances, the Defendant’s Motion to Suppress
                   should be denied.

An additional order denying defendant’s motion to suppress was entered regarding

the warrantless blood draw, finding “exigent circumstances to support a warrantless

blood draw.” A jury trial was held from 5 October to 7 October 2015, with the jury

finding defendant guilty of driving while impaired. Defendant timely appealed to

this Court.


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                                       Discussion

      On appeal, defendant argues (1) that his motion to suppress self-incriminating

statements should have been granted because he was seized and in custody at the

time the statements were made yet he received no Miranda warnings; (2) that his

motion to suppress the blood draw should have been granted because the warrantless

blood draw was completed outside of any exigent circumstances; and (3) that the trial

court erred in denying his motion to dismiss the charges because there was

insufficient evidence to support a conviction.

      I.     Motion to Suppress Self-Incriminating Statements

      Defendant first argues on appeal that the trial court erred in denying his

motion to suppress self-incriminating statements made without Miranda warnings.

Specifically, defendant argues that he was seized and in custody when Detective Hill

engaged in a “custodial interrogation” and that he was “entitled to Miranda warnings

before [Detective] Hill’s ensuing questions.”

                    The standard of review in evaluating the denial of a
             motion to suppress is whether competent evidence
             supports the trial court’s findings of fact and whether the
             findings of fact support the conclusions of law. However,
             when . . . the trial court’s findings of fact are not challenged
             on appeal, they are deemed to be supported by competent
             evidence and are binding on appeal. Conclusions of law are
             reviewed de novo and are subject to full review. Under a
             de novo review, the court considers the matter anew and
             freely substitutes its own judgment for that of the lower
             tribunal.



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State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and

quotation marks omitted).

      Defendant does not frame his argument as a challenge to any particular

findings of fact but rather simply argues that he should have received Miranda

warnings after his license was retained and before Detective Hill asked questions,

because he was seized and under custodial interrogation at that time. Defendant’s

argument does, however, direct us to a portion of the findings of fact as unsupported

by the evidence, so we will briefly address those relevant findings.

      The trial court found in part that:

             4.     Detective Hill asked the Defendant and the female
                    for identification. The Defendant got out of the
                    vehicle and gave identification to Detective Hill.

             5.     During this interaction, Detective Hill noticed that
                    the Defendant had a strong odor of alcohol about his
                    person and the Defendant admitted to driving.

             6.     Detective Hill directed both subjects to remain
                    where they were while he went into the hotel to
                    speak with the desk clerk. Detective Hill could not
                    specifically recall, but believes he retained
                    possession of the Defendant’s identification (driver’s
                    license) when he left to enter the hotel.

(Emphasis added). Although the timing of events is not entirely clear from the

wording of Finding No. 5, it could be understood to mean that defendant admitted to

driving the vehicle before Detective Hill went inside the hotel to speak to the clerk.

If that was the intended meaning -- and it may not have been -- it is not supported by


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the evidence. Detective Hill’s testimony at the suppression hearing sets forth the

correct order of events. At the hearing, Detective Hill testified on direct examination

by the State:

                       Q     And what did you observe once you arrived on
                the scene?

                       A.   When I pulled into the parking lot, I observed
                a red Ford Explorer. . . .

                      Q      What did you do at that point?

                       A      At that point I exited my patrol vehicle. I
                walked over to where the female was standing. I made
                contact with her, and the window was down in the
                passenger side so I was speaking to both her and the male
                and just asked what they were doing there and asked for
                their identifications.

                      Q     What was the nature of the conversation with
                the defendant?

                      A     At that point it was just when I asked what
                they were doing there, they said they were trying to get a
                room.

                      Q      And what happened next?

                      A     When I asked for the identifications . . .
                [defendant] got out of the driver seat of the vehicle and
                walked around to me and handed me his identification as
                well.

                      ....

                       Q     Did you make any observations about him at
                that time?



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                   A     At that time when he walked around to me
             and while we were just engaging in some short
             conversation, I detected a strong odor of alcoholic beverage
             coming from him.

                    ....

                    Q      What did you do at that point?

                    A     At that point I just asked him to kind of hang
             tight there in the parking lot area while I went inside to
             speak with the hotel clerk. I went inside, spoke with her.

                   Q     And what did you do based on that
             conversation?

                   A      Based on that conversation, I went back
             outside to speak to [defendant] and I asked him if he was
             the one who was driving the vehicle, and he responded to
             me yes.

(Emphasis added). Detective Hill testified that it was not until after he went inside

to speak to the hotel clerk and came back out that he asked defendant whether he

had been driving. There is no evidence of any other order of events. Accordingly, we

find that to the extent that Finding No. 5 could be understood as finding that

Detective Hill asked defendant about driving before he took his driver’s license and

told him to “hang tight,” the trial court’s order contains findings that are not

supported by competent evidence.

      Nevertheless, the crux of defendant’s argument on appeal deals with the trial

court’s conclusion that defendant “falls short of the test for custody[.]” In Miranda v.

Arizona, the United States Supreme Court held that statements stemming from a


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custodial interrogation of the defendant may not be used unless the prosecution

“demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.” 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602,

1612 (1966). Our Supreme Court has since clarified that “[t]he rule of Miranda

requiring that suspects be informed of their constitutional rights before being

questioned by police only applies to custodial interrogation.” State v. Brooks, 337

N.C. 132, 143, 446 S.E.2d 579, 586 (1994). Additionally, “our Supreme Court has held

the definitive inquiry in determining whether an individual is in custody for purposes

of Miranda is, based on the totality of the circumstances, whether there was a formal

arrest or restraint on freedom of movement of the degree associated with a formal

arrest.” State v. Portillo, __ N.C. App. __, __, 787 S.E.2d 822, 828, appeal dismissed,

__ N.C. __, 792 S.E.2d 785 (2016) (citation, quotation marks, and brackets omitted).

      Defendant argues that when Detective Hill retained his driver’s license, he

“was seized under the Fourth Amendment” and “was not ‘free to leave[.]’ ” As such,

defendant claims that “since [defendant] was seized, [Detective] Hill’s ensuing

questions constituted a custodial interrogation.” Defendant’s argument, however,

erroneously conflates the Miranda standard for custody with seizure. Our Supreme

Court clarified in State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001),

that these two standards “are not synonymous[.]”




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      In Buchanan, the defendant argued “that the concept of ‘restraint on freedom

of movement of the degree associated with a formal arrest’ merely clarifies what is

meant by a determination of whether a suspect was ‘free to leave.’ ” Id. Our Supreme

Court disagreed, explaining:

            The two standards are not synonymous, however, as is
            evidenced by the fact that the “free to leave” test has long
            been used for determining, under the Fourth Amendment,
            whether a person has been seized. Conversely, the indicia
            of formal arrest test has been consistently applied to Fifth
            Amendment        custodial    inquiries     and     requires
            circumstances which go beyond those supporting a finding
            of temporary seizure and create an objectively reasonable
            belief that one is actually or ostensibly “in custody.”
            Circumstances supporting an objective showing that one is
            “in custody” might include a police officer standing guard
            at the door, locked doors or application of handcuffs.

                   The trial court in the instant case mistakenly
            applied the broader “free to leave” test in determining
            whether defendant was “in custody” for the purposes of
            Miranda. We therefore remand the case to the trial court
            for a redetermination of whether a reasonable person in
            defendant’s position, under the totality of the
            circumstances, would have believed that he was under
            arrest or was restrained in his movement to the degree
            associated with a formal arrest.

                   The State contends this Court has been inconsistent
            in its application of the “ultimate inquiry” test versus the
            “free to leave” test. To the extent that [the cases cited] or
            other opinions of this Court or the Court of Appeals have
            stated or implied that the determination of whether a
            defendant is “in custody” for Miranda purposes is based on
            a standard other than the “ultimate inquiry” of whether
            there is a “formal arrest or restraint on freedom of
            movement of the degree associated with formal arrest,”


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             that language is disavowed.

Id. at 339-40, 543 S.E.2d at 828 (citations omitted). See also Portillo, __ N.C. App. at

__, 787 S.E.2d at 828 (“This objective inquiry [for determining whether an individual

is ‘in custody’ for Miranda purposes], labeled the ‘indicia of formal arrest test,’ is not

synonymous with the ‘free to leave test,’ which courts use to determine whether a

person has been seized for Fourth Amendment purposes. Instead, the indicia of

formal arrest test has been consistently applied to Fifth Amendment custodial

inquiries and requires circumstances which go beyond those supporting a finding of

temporary seizure and create an objectively reasonable belief that one is actually or

ostensibly ‘in custody.’ ” (Citations and quotation marks omitted)); State v. Little, 203

N.C. App. 684, 688, 692 S.E.2d 451, 456 (2010) (“[O]ur Supreme Court has rejected

the ‘free to leave’ test for Miranda purposes and specifically overruled [prior cases] to

the extent they appear to endorse that test.          Instead, the ultimate inquiry on

appellate review is whether there were indicia of formal arrest.” (Citations omitted)).

      In Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 336, 104 S. Ct.

3138, 3151-52 (1984), the U.S. Supreme Court ruled that the defendant was not taken

into custody for Miranda purposes until the police officer formally arrested him and

transported him in his patrol car to the county jail, so Miranda warnings were not

required until his arrest. The U.S. Supreme Court concluded:

             [W]e find nothing in the record that indicates that
             respondent should have been given Miranda warnings at


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             any point prior to the time Trooper Williams placed him
             under arrest. For the reasons indicated above, we reject
             the contention that the initial stop of respondent’s car, by
             itself, rendered him “in custody.” And respondent has
             failed to demonstrate that, at any time between the initial
             stop and the arrest, he was subjected to restraints
             comparable to those associated with formal arrest. Only a
             short period of time elapsed between the stop and the
             arrest. At no point during that interval was respondent
             informed that his detention would not be temporary.
             Although Trooper Williams apparently decided as soon as
             respondent stepped out of his car that respondent would be
             taken into custody and charged with a traffic offense,
             Williams never communicated his intention to respondent.
             A policeman’s unarticulated plan has no bearing on the
             question whether a suspect was “in custody” at a particular
             time; the only relevant inquiry is how a reasonable man in
             the subject’s position would have understood his situation.
             Nor do other aspects of the interaction of Williams and
             respondent support the contention that respondent was
             exposed to “custodial interrogation” at the scene of the stop.
             From aught that appears in the stipulation of facts, a single
             police officer asked respondent a modest number of
             questions and requested him to perform a simple balancing
             test at a location visible to passing motorists. Treatment
             of this sort cannot fairly be characterized as the functional
             equivalent of formal arrest.

Id. at 441-42, 82 L. Ed. 2d. at 335-36, 104 S. Ct. at 3151. See also State v. Rooks, 196

N.C. App. 147, 153, 674 S.E.2d 738, 742 (2009) (“The fact that defendant held his

head down, was not talkative, and was acting like he was in trouble might suggest

he did not feel free to leave. However, the defendant’s subjective belief has no bearing

here. To hold otherwise would defeat the objective reasonable person standard.

These facts and circumstances do not support a conclusion that defendant was



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subjected to custodial interrogation.” (Citations and quotation marks omitted)); State

v. Benjamin, 124 N.C. App. 734, 738, 478 S.E.2d 651, 653 (1996) (“[T]he fact that a

defendant is not free to leave does not necessarily constitute custody for purposes of

Miranda.” (Citations and quotation marks omitted)).

      As defendant was not under formal arrest at the time Detective Hill questioned

him, we must determine whether, under the totality of the circumstances, defendant’s

movement was restrained to the degree associated with formal arrest. Portillo, __

N.C. App. at __, 787 S.E.2d at 828. “For purposes of Miranda, custody analysis must

be holistic and contextual in nature: it is based on the totality of the circumstances

and is necessarily dependent upon the unique facts surrounding each incriminating

statement. No one factor is determinative.” Id. at __, 787 S.E.2d at 828 (citations

and quotation marks omitted). See also State v. Crudup, 157 N.C. App. 657, 660-61,

580 S.E.2d 21, 24-25 (2003) (“Miranda warnings are not required during normal

investigative activities conducted prior to arrest, detention, or charge.            In

determining whether specific questions constitute custodial interrogation or general

on-the-scene questioning, this Court has found the following factors to be relevant:

(1) the nature of the interrogator; (2) the time and place of the interrogation; (3) the

degree to which suspicion had been focused on the defendant, (4) the nature of the

interrogation and (5) the extent to which defendant was restrained or free to leave.




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While none of the factors standing alone is determinative, each factor is relevant.”

(Citations omitted)).

      Decided on a case-by-case basis, prior decisions of this Court indicate that the

“functional equivalent” standard is quite onerous and not easily met, though it very

much depends on the facts of a particular situation. See, e.g., State v. Barnes, __ N.C.

App. __, __, 789 S.E.2d 488, 491, appeal dismissed, __ N.C. __, 794 S.E.2d 525 (2016)

(“Based on the totality of the circumstances, including the fact that Defendant was

on probation during the search of Mr. Lewis’ residence, we conclude that Defendant

was not subjected to a formal arrest or a restraint on his freedom of movement of the

degree associated with formal arrest [even though handcuffed during search of the

residence]. Therefore, we agree with the trial court that Defendant was not ‘in

custody’ for purposes of Miranda.”); Portillo, __ N.C. App. at __, 787 S.E.2d at 830

(“Whatever degree of suspicion the detectives may have conveyed through their

questioning [of defendant in hospital after surgery for gunshot wounds], a reasonable

person in defendant’s position would not have been justified in believing he was the

subject of a formal arrest or was restrained in his movement by police action.”). Cf.

State v. Johnston, 154 N.C. App. 500, 503, 572 S.E.2d 438, 441 (2002) (“After a careful

review of the record, we conclude, as a matter of law, that defendant was in ‘custody.’

The record reveals that defendant was ordered out of his vehicle at gun point,

handcuffed, placed in the back of a patrol car, and questioned by detectives. Although



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the officers informed defendant that he was in ‘secure custody’ rather than under

arrest, we conclude that defendant’s freedom of movement was restrained to the

degree associated with a formal arrest.           A reasonable person under these

circumstances would believe that he was under arrest.”).

      Under the totality of the circumstances in this case, we agree with the trial

court’s conclusion that defendant “falls short of the test for custody,” as he was not

formally arrested and an objectively reasonable person in his position would not have

felt that his movement was restrained to the degree associated with a formal arrest.

Portillo, __ N.C. App. at __, 787 S.E.2d at 828. While defendant may not have felt

free to leave -- and in fact may not have been free to leave -- the test for custody in

relation to Miranda is not subjective. See, e.g., State v. Clark, 211 N.C. App. 60, 68,

714 S.E.2d 754, 760 (2011) (“The extent to which Defendant was in custody for

Miranda purposes depends on the objective circumstances surrounding his

interactions with law enforcement officers, not on the subjective views harbored by

Defendant.”   (Citation, quotation marks, ellipses, and brackets omitted)).      Here,

defendant was standing outside of his own vehicle while speaking with Detective Hill;

he was not told he was under arrest or handcuffed, and other than his license being

retained, his movement was not stopped or limited further while standing outside of

the hotel by his vehicle.    No mention of any possible suspicion of defendant’s

involvement in criminal activity -- driving while intoxicated or otherwise -- had yet



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been made, and an objectively reasonable person in these circumstances would not

have believed he was under arrest or a functional equivalent at that time. Thus,

although one of the trial court’s findings was in error and not supported by the

evidence, there were still sufficient findings to support the trial court’s conclusion of

law that defendant was not “in custody” and subject to Miranda warnings at the time

of his admission. Accordingly, we find no error.

      II.    Motion to Suppress Blood Test Evidence

      Next, defendant argues that the trial court erred in denying his motion to

suppress the blood test evidence because Detective Hill obtained a warrantless blood

draw outside of exigent circumstances. As stated above, our review of a denial of a

motion to suppress is based on “whether competent evidence supports the trial court’s

findings of fact and whether the findings of fact support the conclusions of law.”

Biber, 365 N.C. at 167-68, 712 S.E.2d at 878.

      Under N.C. Gen. Stat. § 20-139.1(d1) (2015):

             If a person refuses to submit to any test or tests pursuant
             to this section, any law enforcement officer with probable
             cause may, without a court order, compel the person to
             provide blood or urine samples for analysis if the officer
             reasonably believes that the delay necessary to obtain a
             court order, under the circumstances, would result in the
             dissipation of the percentage of alcohol in the person’s
             blood or urine.

“A reasonable belief generally must be based on specific and articulable facts which,

taken together with the rational inferences from those facts, reasonably warrant the


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officer in believing the point at issue.” State v. Fletcher, 202 N.C. App. 107, 110, 688

S.E.2d 94, 96 (2010) (citation and quotation marks omitted).

      In relation to the blood draw in this case, the trial court made the following

relevant findings:

             3.      Detective Hill testified that when he arrived, the
                     defendant was located in the driver’s seat of his
                     vehicle, the defendant had a strong odor of alcohol
                     about his person, and the defendant admitted to
                     driving.

             4.      Detective Hill testified that defendant “showed some
                     signs of impairment” on the SFSTs and submitted a
                     .10 reading on the roadside PBT.

             5.      Detective Hill testified that defendant admitted to
                     having a couple of drinks, stated he had not drank
                     since arriving at the hotel, and stated that he had
                     driven from Salisbury.

             6.      The defendant was arrested at 2:48 a.m.

             7.      Detective Hill arrived at the Kannapolis Police
                     Department at 3:06 a.m. The defendant refused the
                     intox within 2 to 3 minutes after arriving at the
                     police department.

             8.      Detective Hill decided to get a blood test after the
                     defendant refused the intox. CMC Kannapolis is
                     approximately 4 miles away and is the closest place
                     from Kannapolis Police Department for a blood
                     draw.

             9.      At CMC Kannapolis, Detective Hill read the
                     defendant his rights regarding the blood draw at
                     3:24 a.m. The defendant made a phone call.
                     Detective Hill waited 30 minutes before starting the


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      blood draw. The defendant refused the blood draw
      at 3:55 a.m. The defendant was compelled to submit
      shortly thereafter.

10.   CMC Kannapolis is approximately 8 miles from the
      Magistrate’s Office.

11.   Detective Hill testified that based on the totality of
      the information he had at the time, he thought the
      defendant was close to a .08.

12.   Detective Hill testified that it takes approximately
      15 minutes to perform a blood draw.

13.   Detective Hill testified that he believed it would
      have taken [an] additional hour to an hour and a half
      to get a search warrant, which would include driving
      to and from the Magistrate’s Office, filling out the
      search warrant, presenting the information to the
      magistrate, and waiting for the warrant to be issued.
      Detective Hill further indicated that his best
      estimate of delay would have been an hour and 20
      minutes, but it could be longer if there were other
      officers ahead of him.

14.   Detective Hill testified there typically would be one
      magistrate at that time. There was no information
      offered if there would have been other officers
      available to assist in holding the defendant if
      Detective Hill went to get a search warrant.

15.   Based on the information before the court, Detective
      Hill was the only officer on the scene that night.

16.   Detective Hill did not contact the Magistrate’s Office
      to determine if there would have been a wait if he
      applied for a search warrant.

17.   The Court finds Detective Hill’s testimony credible.



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The trial court concluded in relevant part:

      8.     There were exigent circumstances to support a
             warrantless blood draw.

      9.     In the present case, without getting a warrant, the
             process for getting the defendant’s blood took
             approximately one hour and 22 minutes from the
             time the officer made contact with the defendant,
             2:33 a.m., until the blood draw began, shortly after
             3:55 a.m. There was no evidence before the court
             that the time this took was anything but routine and
             was within the officer’s expectations.

      10.    The officer testified that it would take an additional
             hour to an hour and a half to obtain a search warrant
             under the circumstances of this case. His testimony
             was credible. When added to the reasonable and
             predictable time it took to draw the blood without a
             warrant, an hour and 22 minutes, the time it would
             have taken with a warrant increases to two hours
             and 22 minutes to two hours and 52 minutes.

      11.    The officer in this case had a .10 roadside reading
             and alcohol “decreases by approximately 0.015
             percent to 0.02 percent per hour once the alcohol has
             been fully absorbed.” McNeely. After considering
             these facts as well as the other factors outlined
             above, the court finds that the officer had exigent
             circumstances to have the blood drawn without a
             warrant. This is also consistent with the two to
             three hour window found in State v. Fletcher to
             dispense with the need for a warrant as this case
             falls in the two hour and 22 minutes to two hours
             and 52 minutes range with the facts listed above.

      12.    Under the totality of the above referenced
             circumstances, the defendant’s motion to suppress
             should be denied.



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      As defendant does not challenge any particular findings on appeal, the trial

court’s findings are considered binding on appeal. Biber, 365 N.C. at 168, 712 S.E.2d

at 878 (“[W]hen, as here, the trial court’s findings of fact are not challenged on appeal,

they are deemed to be supported by competent evidence and are binding on appeal.”).

Rather, defendant argues that the trial court erred in denying his suppression motion

because Detective Hill compelled that his blood be drawn without sufficient exigent

circumstances to support the warrantless blood draw.

      The United States Supreme Court held in Schmerber v. California, 384 U.S.

757, 768, 16 L. Ed. 2d 908, 918, 86 S. Ct. 1826, 1834 (1966) that the Fourth

Amendment prohibits the warrantless seizure of a blood sample where such intrusion

is “not justified in the circumstances” or is made in an “improper manner.” More

recently, in Missouri v. McNeely, __ U.S. __, __ 185 L. Ed. 2d 696, 715, 133 S. Ct. 1552,

1568 (2013), the Supreme Court held, in the context of a blood draw performed over

a defendant’s objection in impaired driving cases, that the dissipation of alcohol in a

person’s blood stream standing alone “does not constitute an exigency in every case

sufficient to justify conducting a blood test without a warrant.”

      This Court addressed McNeely in State v. Dahlquist, 231 N.C. App. 100, 103,

752 S.E.2d 665, 667 (2013), appeal dismissed and disc. review denied, 367 N.C. 331,

755 S.E.2d 614 (2014), noting that “after the Supreme Court’s decision in McNeely,

the question for this Court remains whether, considering the totality of the



                                          - 21 -
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                                   Opinion of the Court



circumstances, the facts of this case gave rise to an exigency sufficient to justify a

warrantless search.” In Dahlquist, the trial court found that: (1) the defendant pulled

up to a checkpoint and an officer noticed an odor of alcohol; (2) the defendant admitted

to drinking five beers; (3) field sobriety tests indicated that the defendant was

impaired; and (4) the officer went to the hospital directly because he knew that it was

10 to 15 minutes away and typically not too busy on Saturday mornings, but that on

a weekend night “it would take between four and five hours to obtain a blood sample

if he first had to travel to the Intake Center at the jail to obtain a warrant.” Id. at

103, 752 S.E.2d at 665. This Court evaluated the totality of the circumstances and

held that “the facts of this case gave rise to an exigency sufficient to justify a

warrantless search.” Id. at 104, 752 S.E.2d at 668.

      In Fletcher, decided prior to McNeely and Dahlquist, this Court held “that

competent evidence supports the findings of fact that Officer Powers reasonably

believed that a delay would result in the dissipation of the alcohol in defendant’s blood

and that exigent circumstances existed that allowed a warrantless blood draw.”

Fletcher, 202 N.C. App. at 113, 688 S.E.2d at 98. This Court explained in Fletcher

that the defendant

             [did] not question whether he had refused to submit to a
             test or whether probable cause existed in order to compel a
             blood test. Therefore, the only issue is whether Officer
             Powers’s belief was reasonable under the circumstances.
             Defendant contends that Officer Powers’s belief -- that the
             delay caused by obtaining a court order would result in the


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                                   Opinion of the Court



             dissipation of defendant’s percentage of blood alcohol -- was
             unreasonable and not grounded in fact or knowledge.
             However, competent evidence exists to suggest that her
             belief was reasonable. Officer Powers testified that the
             magistrate’s office in Carthage was twelve miles away. She
             also testified that she had been to the magistrate’s office on
             approximately twenty to thirty occasions late on Saturday
             night or early Sunday morning. She testified that the
             weekends are often very busy at the magistrate’s office and
             that, of the twenty to thirty weekend nights she had
             traveled there, she had had to stand in line several of those
             times. Officer Powers further testified that she frequently
             had been to the emergency room at the hospital on
             weekend nights and that most of the time it was busy then.
             Based upon her four years’ experience as a police officer,
             Officer Powers opined that the entire process of driving to
             the magistrate’s office, standing in line, filling out the
             required forms, returning to the hospital, and having
             defendant’s blood drawn would have taken anywhere from
             two to three hours. Although other evidence exists that
             could have supported a contrary finding, we hold that the
             trial court’s finding of fact as to Officer Powers’s reasonable
             belief is supported by competent evidence.

Id. at 110-11, 688 S.E.2d at 96 (quotation marks and brackets omitted). In addition,

this Court held that “the trial court had before it competent evidence to support its

finding that exigent circumstances existed” where the defendant “had failed multiple

field sobriety tests and was unsuccessful at producing a valid breath sample[,]” and

the officer “testified as to the distance between the police station and the magistrate’s

office, her belief that the magistrate’s office would be busy late on a Saturday night,

and her previous experience with both the magistrate’s office and the hospital on

weekend nights.” Id. at 111, 688 S.E.2d at 97.



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      More recently, in State v. Granger, 235 N.C. App. 157, 165, 761 S.E.2d 923, 928

(2014), this Court affirmed the trial court’s denial of a motion to suppress where “the

totality of the circumstances showed that exigent circumstances justified the

warrantless blood draw.” (Emphasis omitted).

             Specifically, the trial court found that Officer Lippert had
             concerns regarding the dissipation of alcohol from
             Defendant’s blood, as it had been over an hour since the
             accident when Officer Lippert established sufficient
             probable cause to make his request for Defendant’s blood.
             Those findings also state Officer Lippert’s concerns due to
             delays from the warrant application process. Its findings
             show that Officer Lippert did not have the opportunity to
             investigate the matter adequately until he arrived at the
             hospital because of Defendant’s injuries and need for
             medical care. Even if he had the opportunity to investigate
             the matter at the accident scene sufficiently to establish
             probable cause, unlike [the situation in McNeely], Officer
             Lippert was investigating the matter by himself and would
             have had to call and wait for another officer to arrive before
             he could travel to the magistrate to obtain a search
             warrant.      Its findings show that Officer Lippert’s
             knowledge of the approximate probable wait time and time
             needed to travel, as being over a 40 minute round trip to
             the magistrate at the county jail. Additionally, Officer
             Lippert had the added concern of the administration of
             pain medication to Defendant. Defendant had been in an
             accident severe enough that he was placed on a backboard
             for transportation to the hospital and complained of pain
             in several parts of his body. There was a reasonable chance
             if Officer Lippert left him unattended to get a search
             warrant or waited any longer for the blood draw,
             Defendant would have been administered pain medication
             by hospital staff as part of his treatment, contaminating
             his blood sample.




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                                   Opinion of the Court



Id. (citations, quotation marks, brackets, and footnote omitted). Cf. State v. Romano,

__ N.C. App. __, __, 785 S.E.2d 168, 174, temp. stay allowed, __ N.C. __, 789 S.E.2d

438, disc. review allowed, __ N.C. __, 794 S.E.2d 315, and __ N.C. __, 794 S.E.2d 317

(2016) (“Under the totality of the circumstances, considering the alleged exigencies of

the situation [where the defendant was unconscious and unable to receive and

consider his blood test rights and magistrate’s office was a couple miles away from

the hospital], the warrantless blood draw was not objectively reasonable.”)2.

      The United States Supreme Court addressed warrantless breath tests and

blood draws even more recently in Birchfield v. North Dakota, __ U.S. __, 195 L. Ed.

2d 560, 136 S. Ct. 2160 (2016).       In Birchfield, the Supreme Court held that a

warrantless breath test of an impaired-driving suspect is permissible under the

Fourth Amendment as a search incident to arrest, but a warrantless blood draw is

not permissible as a search incident to arrest due to its nature of being a greater

intrusion of privacy. Id. at __, 195 L. Ed. 2d. at 588, 136 S. Ct. at 2185 (“Because

breath tests are significantly less intrusive than blood tests and in most cases amply

serve law enforcement interests, we conclude that a breath test, but not a blood test,

may be administered as a search incident to a lawful arrest for drunk driving.”).

      Here, however, defendant’s only argument on appeal in relation to the blood

draw is that it was “outside of exigent circumstances[,]” so Birchfield does not change


      2 Our Supreme Court granted a temporary stay in this matter on 24 May 2016, State v.
Romano, __ N.C. __, 789 S.E.2d 438 (2016), and recently heard arguments on 20 March 2017.

                                          - 25 -
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                                   Opinion of the Court



the analysis. See id. at __, 195 L. Ed. 2d. at 587, 136 S. Ct. at 2184 (“Nothing prevents

the police from seeking a warrant for a blood test when there is sufficient time to do

so in the particular circumstances or from relying on the exigent circumstances

exception to the warrant requirement when there is not.”). Furthermore, under the

totality of the circumstances in this case, “the evidence supports the trial court’s

findings and conclusions regarding the existence of exigent circumstances[.]”

Dahlquist, 231 N.C. App. at 104, 752 S.E.2d at 668.

      Defendant submitted a .10 reading on a roadside PBT and was subsequently

arrested at 2:48 a.m. before being transported to the Kannapolis Police Department,

where he arrived 18 minutes later. Defendant “refused the intox within 2 to 3

minutes after arriving at the police department[,]” so Detective Hill made the decision

to compel a blood test. The closest hospital was approximately four miles away from

the police department and eight miles away from the Magistrate’s Office. Detective

Hill read defendant his rights as related to the blood draw at the hospital at 3:24 a.m.

and waited for defendant to finish making a phone call before starting the blood draw

at 3:55 a.m. The trial court also found that “Detective Hill testified that based on the

totality of the information he had at the time, he thought the defendant was close to

a .08.” Additionally, Detective Hill indicated that it was his belief that it would have

taken an additional hour to an hour and a half to get a search warrant and he was

the only officer on the scene, as in Granger, where the officer “was investigating the



                                          - 26 -
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                                   Opinion of the Court



matter by himself and would have had to call and wait for another officer to arrive

before he could travel to the magistrate to obtain a search warrant.” Granger, 235

N.C. App. at 165, 761 S.E.2d at 928.

      As in Fletcher, “[a]lthough other evidence exists that could have supported a

contrary finding,” 202 N.C. App. at 111, 688 S.E.2d at 96, we conclude that the trial

court’s findings -- as to Detective Hill’s reasonable belief that a delay would result in

the dissipation of the alcohol in defendant’s blood -- are supported by competent

evidence. As the findings are supported by competent evidence, and the findings

support the trial court’s ultimate conclusion that the blood draw was constitutional,

we hold that the trial court did not err in denying defendant’s motion to suppress the

blood draw.

      III.    Motion to Dismiss

      Finally, defendant argues that the trial court erred in denying his motion to

dismiss the impaired driving charge at the close of the State’s evidence and at the

close of all evidence because the State failed to present substantial independent

circumstantial or direct evidence -- other than defendant’s statement -- to establish

that defendant was operating a motor vehicle at any relevant time.

                      This Court reviews the trial court’s denial of a
              motion to dismiss de novo. Upon defendant’s motion for
              dismissal, the question for the Court is whether there is
              substantial evidence (1) of each essential element of the
              offense charged, or of a lesser offense included therein, and
              (2) of defendant’s being the perpetrator of such offense. If


                                          - 27 -
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                                   Opinion of the Court



             so, the motion is properly denied. Substantial evidence is
             such relevant evidence as a reasonable mind might accept
             as adequate to support a conclusion. In making its
             determination, the trial court must consider all evidence
             admitted, whether competent or incompetent, in the light
             most favorable to the State, giving the State the benefit of
             every    reasonable inference       and    resolving   any
             contradictions in its favor.

State v. Marley, 227 N.C. App. 613, 614-15, 742 S.E.2d 634, 635-36 (2013) (citations

and quotation marks omitted). See also State v. Scott, 356 N.C. 591, 597, 573 S.E.2d

866, 869 (2002) (“Substantial evidence is that amount of relevant evidence necessary

to persuade a rational juror to accept a conclusion.”); State v. Franklin, 327 N.C. 162,

171-72, 393 S.E.2d 781, 787 (1990) (“The trial court need only satisfy itself that the

evidence is sufficient to take the case to the jury; it need not be concerned with the

weight of that evidence. If there is any evidence tending to prove guilt or which

reasonably leads to this conclusion as a fairly logical and legitimate deduction, it is

for the jury to say whether it is convinced beyond a reasonable doubt of defendant’s

guilt.” (Citations omitted)).

       Under N.C. Gen. Stat. § 20-138.1 (2015), a person commits the crime of driving

while impaired

             if he drives any vehicle upon any highway, any street, or
             any public vehicular area within the State:

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

             (2) After having consumed sufficient alcohol that he has, at
             any relevant time after the driving, an alcohol


                                          - 28 -
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                                   Opinion of the Court



             concentration of 0.08 or more. The results of a chemical
             analysis shall be deemed sufficient evidence to prove a
             person’s alcohol concentration; or

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

N.C. Gen. Stat. Ann. § 20-138.1(a). Here, defendant argues that “the [S]tate has

failed to present evidence of the substantial elements of ‘driving’ and ‘on a highway,

street, or public vehicular area’ for the charged offense of driving while impaired.”

      This Court has previously found that “one ‘drives’ within the meaning of [N.C.

Gen. Stat. § 20-138.1] if he is in actual physical control of a vehicle which is in motion

or which has the engine running.” State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d

69, 70 (1985). In this case, defendant admitted to Detective Hill that he had been

driving the vehicle, and as discussed above, his statement was admissible evidence.

He also described in detail the route he took to get to the hotel. Defendant told

Detective Hill that he had driven from Salisbury on Interstate 85. Specifically,

Detective Hill explained:

                    Then I asked if he got off the exit on the Interstate
             at Highway 29. We were close to Exit 58 off 85. I asked if
             he got off at that Exit, and he said yes. And then he pointed
             to the IHOP, which is at the intersection of 29 and
             Cloverleaf Plaza. When I asked him where he turned, he
             pointed there. And then I pointed to Cloverleaf Parkway,
             which is the road/street running right in front of the hotel,
             asked if he drove down that portion of the road and he said
             yes.



                                          - 29 -
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                                   Opinion of the Court



Although Detective Hill testified that the vehicle’s engine was not running at the time

he approached the vehicle, it was parked under the overhang area by the front door

of the hotel, where guests typically stop to check in to the hotel, not in a parking spot.

He also observed defendant sitting in the driver’s seat, and defendant got out of the

driver’s seat to give Detective Hill his driver’s license. The vehicle was registered to

defendant.    The circumstantial evidence, along with defendant’s admissions to

driving the vehicle and the route he took, was sufficient evidence for the jury to decide

whether defendant drove the vehicle and whether he drove it on a highway, street, or

public vehicular area at a relevant time. Thus, “[u]nder the proper standard of

review, substantial evidence existed for each essential element of DWI. Viewing the

evidence in a light most favorable to the State, we conclude that a reasonable

inference of defendant’s guilt may be drawn from the direct and circumstantial

evidence presented by the State. Such evidence was sufficient to support the jury’s

verdict of guilty.” Scott, 356 N.C. at 598, 573 S.E.2d at 870.

                                       Conclusion

      Accordingly, we hold that the trial court did not err by denying defendant’s

motions to suppress his statement, by denying his motion to suppress the results of

the warrantless blood test, or by denying his motion to dismiss for insufficient

evidence.

      NO ERROR.



                                          - 30 -
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                       Opinion of the Court



Chief Judge McGEE and Judge INMAN concur.




                              - 31 -
