                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-286

                             Filed: 20 November 2018

Buncombe County, No. 15 CRS 82431

STATE OF NORTH CAROLINA

             v.

GREGORY GARRISON COLE


      Appeal by defendant from judgment entered 31 August 2017 by Judge Alan Z.

Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 1

October 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General J. Rick
      Brown, for the State.

      Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant.


      ELMORE, Judge.


      Defendant Gregory Cole appeals a judgment entered after a jury convicted him

of driving while impaired (“DWI”). He argues the superior court erred by (1) denying

his motion to dismiss the indictment for lack of jurisdiction because the same charge

against him remained pending and valid in district court; (2) denying his motion to

suppress the results of roadside sobriety tests and a later intoxilyzer test because

those tests were administered during an unlawful detention that arose as a direct

consequence of an illegal roadside breath test and thus constituted tainted fruit of
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                                   Opinion of the Court



that poisonous tree; (3) denying his motion to suppress the intoxilyzer results on the

additional ground that the superior court improperly concluded the administrating

officer’s request he submit a breath sample on a second intoxilyzer machine after the

first one failed to produce a valid result did not constitute a request for a “subsequent

chemical analysis” under N.C. Gen. Stat. § 20-139.1(b5) and thus did not trigger that

statute’s requirement that the officer re-advise him of his implied-consent rights

before administering the test on the second machine; and (4) enhancing his sentence

because the superior court’s finding of the existence of an aggravating factor was

based on his prior DWI conviction that was pending on appeal and thus was not

“final” so it failed to qualify as a “prior conviction” for enhanced sentencing purposes

under N.C. Gen. Stat. § 20-179(c)(1).

      We hold the superior court properly (1) denied the motion to dismiss the

indictment for lack of jurisdiction because the district court charge was no longer

pending or valid; (2) denied the motion to suppress the evidence discovered after the

roadside breath test because, before that test, objective reasonable suspicion existed

that defendant may be driving while impaired, thereby justifying the officer to

prolong the initial traffic stop to investigate defendant’s potential impairment; (3)

denied the motion to suppress the intoxilyzer results because the officer’s request

that defendant submit another breath sample to administer the same chemical

analysis of the breath on a second intoxilyzer machine did not trigger N.C. Gen. Stat.



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§ 20-139.1(b5)’s re-advisement requirement; and (4) enhanced defendant’s sentence

because his prior DWI conviction, despite its status being pending on appeal,

supporting a finding of the existence of the grossly aggravating factor of a “prior

conviction” under N.C. Gen. Stat. § 20-179(c).             Accordingly, we hold defendant

received a fair trial and sentence, free of error.

                                    I. Background

      The State’s evidence tended to show the following facts. Around 12:30 a.m. on

8 March 2015, Officer Jonathan Ray of the Weaverville Police Department was

conducting a business security check at Twisted Laurel, a bar and grill in

Weaverville, when he observed defendant exit through the back door of the business

and walk toward the parking lot. After completing the business check a few minutes

later, Officer Ray started working traffic control and observed a burgundy van leave

Twisted Laurel’s parking lot with no rear lamps illuminating its license plate in

violation of N.C. Gen. Stat. § 20-129(d). Officer Ray followed the van for about two

miles, observing it “weaving slightly within its lane” and “travel[ ] over onto the white

fog line on the right-hand side of the road” a few times, before activating his blue

lights and stopping the van.

      When Officer Ray approached, he discovered defendant, whom he recognized

as the person he had just seen leaving Twisted Laurel, was driving the van. When

Officer Ray requested his driver’s license, defendant initially presented his debit card.



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Officer Ray returned the debit card and defendant correctly furnished his license.

Officer Ray “smell[ed] an odor of alcohol on [defendant]” and “noticed that he had red

glassy eyes as well.” When Officer Ray asked if he had been drinking, defendant

replied that he had not, but had been “working at the bar” and “may have spilled

some alcohol on himself.” Defendant “denied drinking about three times before he

finally admitted . . . that he had been drinking.”

      Officer Ray asked defendant to submit to a roadside breath test using an Alco

Sensor SFST. Defendant replied “[t]he preliminary breath test on the roadside was

illegal to use in the State of North Carolina.” After Officer Ray informed defendant

that if he did not submit to the test, he would be taken into custody and transported

to the station for a breath sample, defendant agreed to submit to the roadside breath

test, which produced a positive result. Officer Ray then directed defendant out of his

vehicle and administered roadside sobriety tests. According to Officer Ray, defendant

exhibited “six out of the six clues” on the horizontal gaze nystagmus (“HGN”) test;

“[f]ive out of eight” clues on the walk-and-turn test; “two” out of “four” clues on the

one-leg stand test; and exhibited clues of impairment, including swaying back and

forth and inaccurately counting seconds, on the Romberg balance test. After a second

breath test also produced a positive result, Officer Ray arrested defendant for DWI

and transported him to the Buncombe County Detention Facility.




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      About ten minutes after arriving at the jail, Officer Ray brought defendant to

a room containing three Intox ECIR-II machines, read him his implied-consent rights

and furnished him a written copy of those rights pursuant to N.C. Gen. Stat. § 20-

16.2. Defendant acknowledged his rights and agreed to submit to a chemical analysis

of his breath. After waiting the required 15-minute observation period, Officer Ray

attempted to administer the test on one of the three intoxilyzer machines. But after

defendant’s breath sample produced a “mouth alcohol” reading, Officer Ray

transferred defendant to one of the adjacent machines for another test. After waiting

another 15-minute observation period and without re-advising defendant of his

implied-consent rights, Officer Ray administered the breath test on that second

machine, which produced a valid result.

      That same night, on 8 March 2015, Officer Ray cited defendant for

misdemeanor DWI and for unlawful failure to burn rear vehicle lamps. See N.C. Gen.

Stat. §§ 20-138.1, -129(d) (2017). On 6 June 2016, a grand jury issued a presentment

requesting the district attorney investigate both offenses. On 11 July 2016, a grand

jury indicted defendant of both charges.

      Before trial in superior court, defendant moved to quash or dismiss the

indictment for lack of jurisdiction. He argued that because the State never dismissed

the citation in district court, that charge remained valid and pending, and thus the

superior court lacked authority to exercise its jurisdiction over the same offense and



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must dismiss the indictment. See N.C. Gen. Stat. § 15A-954(a)(6) (2017) (requiring a

court to “dismiss the charges stated in a criminal pleading if it determines that[ ] . . .

[t]he defendant has previously been charged with the same offense in another North

Carolina court of competent jurisdiction, and the criminal pleading charging the

offense is still pending and valid”). The State argued it need not have dismissed the

citation in the district court because the indictment superseded that charge and,

further, that its records indicate there was no longer any charge against defendant

pending in district court. The superior court denied the motion.

      Defendant also filed three pretrial motions to suppress evidence. First, he

moved to suppress all evidence on the grounds that Officer Ray lacked reasonable

suspicion for the traffic stop. The superior court concluded in relevant part that

reasonable suspicion existed based on Officer Ray observing the van without rear

lamps illuminating the license plate in violation of N.C. Gen. Stat. § 20-129 and

denied the motion. Defendant does not challenge this ruling.

      Second, defendant moved to suppress all evidence based on the illegality of the

roadside breath test. He argued Officer Ray (1) unlawfully compelled defendant to

submit to the roadside breath test and thus the subsequent field sobriety tests results

and later intoxilyzer test results constituted tainted fruit of the poisonous tree of that

illegal roadside breath test search; (2) unlawfully prolonged the traffic stop because

his “demand [for] a preliminary breath test constitute[d] a seizure beyond the scop[e]



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of the initial stop and without reasonable suspicion of criminal activity”; and (3)

improperly relied upon the numerical results of the roadside breath test in forming

probable cause to arrest defendant for DWI and, therefore, that “the State [was]

unable to meet its burden to demonstrate [Officer Ray] possessed objectively

reasonable probable cause to arrest the defendant.” The superior court concluded the

roadside breath tests were unlawfully compelled and thus suppressed the positive-

results evidence from those tests. However, it further concluded, even without that

illegally obtained evidence, Officer Ray had probable cause to arrest defendant for

DWI and thus declined to suppress any other evidence.

      Third, defendant moved to suppress the intoxilyzer results on the grounds that

Officer Ray failed to re-advise him of his implied-consent rights in violation of N.C.

Gen. Stat. § 20-139.1(b5). Defendant acknowledged that Officer Ray duly advised

him of his implied-consent rights under N.C. Gen. Stat. § 20-16.2 and that he agreed

to submit to a chemical analysis of his breath prior to Officer Ray administering that

test on the first intoxilyzer machine. He argued that because the first machine failed

to produce a valid result, the administration of that test was a “nullity.” Thus,

defendant asserted, Officer Ray’s subsequent request that he provide another sample

to administer the test on a second machine was a request for a “subsequent chemical

analysis” under N.C. Gen. Stat. § 20-139.1(b5), triggering his right under that statute

to be re-advised of his implied-consent rights. Therefore, defendant continued, the



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results of the intoxilyzer test should be suppressed because Officer Ray failed to re-

advise him of his implied-consent rights before administering the breath test on the

second machine. The superior court concluded Officer Ray’s request did not trigger

N.C. Gen. Stat. § 20-139.1(b5)’s re-advisement requirement because it was merely a

request to submit to the same chemical analysis and therefore refused to suppress

the intoxilyzer results on that basis.

      At trial, defendant failed to object to the introduction of the field-sobriety-tests-

results evidence or the intoxilyzer-results evidence, the superior court dismissed the

failure to burn rear lamps infraction due to insufficiency of the indictment, and the

jury found defendant guilty of DWI.

      At sentencing, defendant objected to the use of a prior DWI conviction obtained

against him in superior court on 15 September 2016 to support a finding of the

existence of a grossly aggravating factor for the purpose of enhancing his sentence.

He argued that because the prior conviction was currently pending on appeal, it was

not “final” and thus did not qualify as a “prior conviction” under N.C. Gen. Stat. § 20-

179(c). The superior court concluded the prior DWI conviction, despite it being

pending on appeal, supported a finding of the existence of a grossly aggravating factor

but noted its willingness to resentence defendant if that conviction was later

reversed. Accordingly, the superior court entered a judgment finding the grossly

aggravating factor of a prior DWI conviction and sentencing defendant as a Level Two



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offender to twelve months’ incarceration, suspended for eighteen months of

supervised probation with special conditions that he surrender his driver’s license to

the Division of Motor Vehicles and serve an active term of thirty days. Defendant

appeals.

                                II. Issues Presented

      On appeal, defendant presents four issues. First, he argues the superior court

erred by denying his motion to dismiss the indictment for lack of jurisdiction because

the same charge against him was still valid and pending in district court. Second,

that the superior court erred by denying his motion to suppress all evidence arising

from the traffic stop because it was obtained during an unlawful detention that

occurred as a direct consequence of an illegal roadside breath test and thus was

tainted fruit of that poisonous tree. Third, that the superior court erred by denying

his motion to suppress the intoxilyzer results because it improperly concluded Officer

Ray’s request he provide another breath sample on a different intoxilyzer machine

was not a request for a “subsequent chemical analysis” under N.C. Gen. Stat. § 20-

139.1(b5). And fourth, that the superior court erred by enhancing his sentence on the

grounds that his prior DWI conviction, since it was currently pending on appeal, did

not qualify as a “prior conviction” under N.C. Gen. Stat. § 20-179(c) and thus could

not be used to support a finding of the existence of a grossly aggravating factor.

           III. Motion to Dismiss Indictment for Lack of Jurisdiction



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      Defendant first asserts the superior court erred by denying his motion to

dismiss the DWI indictment for lack of jurisdiction. He argues that because the State

failed to dismiss the citation charging the same offense in district court, that charge

remained valid and pending in district court, and thus the superior court was

required to dismiss the indictment under N.C. Gen. Stat. § 15A-954(a)(6).           We

disagree.

A. Review Standard

      We review subject-matter jurisdiction challenges de novo. State v. Rogers, ___

N.C. App. ___, ___, 808 S.E.2d 156, 162 (2017) (citing Harris v. Matthews, 361 N.C.

265, 271, 643 S.E.2d 566, 570 (2007)).             We also review issues of statutory

interpretation de novo. State v. Davis, 368 N.C. 794, 797, 785 S.E.2d 312, 315 (2016).

B. Discussion

      N.C. Gen. Stat. § 7A-272(a) provides that “[e]xcept as provided in . . . Article

[22], the district court has exclusive, original jurisdiction for the trial of . . .

misdemeanors.” N.C. Gen. Stat. § 7A-272(a) (2017); see also State v. Felmet, 302 N.C.

173, 174, 273 S.E.2d 708, 710 (1981) (“Exclusive original jurisdiction of all

misdemeanors is in the district courts of North Carolina.” (citing N.C. Gen. Stat. §

7A-272)). Section 7A-271 of Article 22 provides in relevant part that “the superior

court has jurisdiction to try a misdemeanor[ ] . . . [w]hen the charge is initiated by

presentment[.]” N.C. Gen. Stat. § 7A-271(a)(2) (2017). “ ‘[I]nitiated’ refers to how the



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criminal process in superior court began, not to what the first criminal process of any

kind in any court was.” State v. Gunter, 111 N.C. App. 621, 625, 433 S.E.2d 191, 193

(1993) (interpreting these statutes and rejecting the defendant’s argument that the

superior court lacked jurisdiction over a charge initiated by presentment because the

district court first acquired jurisdiction over the same charge by citation).

      Here, the 8 March 2015 misdemeanor DWI citation granted the district court

authority to exercise its original jurisdiction over the charge. See N.C. Gen. Stat. §

7A-272(a). However, after the 6 June 2016 presentment and later indictment, the

superior court had authority to exercise its jurisdiction over the charge. See N.C.

Gen. Stat. § 7A-271(a)(2); see also Gunter, 111 N.C. App. at 625, 433 S.E.2d at 193–

94 (holding that although a citation invoked the district court’s jurisdiction, a later

presentment and indictment charging the same offense vested the superior court with

jurisdiction). Because the charge in superior court was initiated by presentment, the

superior court acquired jurisdiction over the offense when the indictment issued, and

it thus properly denied the motion to dismiss the indictment for lack of jurisdiction.

      Nonetheless, defendant argues that because the State never dismissed the

citation in district court, that charge remained pending and active, and thus the

superior court was required to dismiss the indictment. See N.C. Gen. Stat. § 15A-

954(a)(6) (requiring a superior court to “dismiss the charges stated in a criminal

pleading if it determines that[ ] . . . the defendant has previously been charged with



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the same offense in another North Carolina court of competent jurisdiction, and the

criminal pleading charging the offense is still pending and valid.” (emphasis added)).

We disagree.

      Here, in response to defendant’s motion to dismiss the indictment in superior

court, the State replied as follows:

               [STATE]: . . . [T]he matter that was left in District Court is
               simply superceded by this indictment. A simple search of
               our coding and our records indicates that the only pending
               matters in Buncombe County against [defendant] are the
               Superior Court matters. The District Court case -- the
               matter that originated in District Court is simply no longer
               pending. This particular indictment super[s]eded that. . . .

               As a result of the fact that there’s still no pending matter
               in District Court . . . this sort of eliminates any idea of a
               competing claim, that the State is attempting to find him
               guilty or prosecute him in two separate courtrooms. The
               matter in District Court just simply isn’t there any more.
               It’s here now based on that indictment.

      As reflected, although the State never filed a formal dismissal of the citation

in district court, it made clear that it had abandoned its prosecution in district court

to the exclusion of its superior court prosecution, which effectively served as the

functional equivalent of a dismissal of the district court charge, rendering it no longer

valid and pending. See State v. Cole, No. 17-732, slip op. at 5–9 (N.C. App. Aug. 21,

2018) (unpublished) (rejecting this same argument, reasoning in relevant part that it

was “evident from the transcript that defendant was only prosecuted through the

Superior Court action and that the District Court action was effectively dismissed—


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even if no formal dismissal occurred”). Further, as a result of the State’s announced

election to only prosecute the charge in superior court, once jeopardy attached to the

indictment, the State would be barred under double jeopardy principles from later

prosecuting that charge in district court. Cf. State v. Courtney, ___ N.C. App. ___,

____, 817 S.E.2d 412, 420 (explaining the binding effect of the “State’s election” rule

in the context of a district attorney’s announced election to dismiss and not to exercise

the State’s right to retry a hung charge after jeopardy had already attached to the

indictment), disc. rev. allowed, ___ N.C. ___, 818 S.E.2d 109 (2018). Accordingly, we

overrule this argument.

      Defendant also relies on State v. Karbas, 28 N.C. App. 372, 221 S.E.2d 98

(1976), to support his argument that the State’s failure to dismiss the citation in

district court precluded the superior court from exercising its jurisdiction over the

same offense.    In Karbas, we stated that “[w]here two courts have concurrent

jurisdiction of certain offenses, the court first exercising jurisdiction in a particular

prosecution obtains jurisdiction to the exclusion of the other. But when it enters a

nolle prosequi it loses jurisdiction and the other court may proceed.” Id. at 374, 221

S.E.2d at 100 (citation omitted). Defendant’s reliance on Karbas is misguided.

      To the extent that the district and superior courts here shared concurrent

jurisdiction over the misdemeanor DWI charge, that concurrent jurisdiction did not

exist until the superior court indictment issued on 11 July 2016. Defendant points to



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no evidence suggesting that, after that time, the district court exercised jurisdiction

over the offense. Indeed, in his 8 September 2016 motion to dismiss the indictment

for lack of jurisdiction, defendant stated “[t]he citation issued in this mat[t]er remains

active, although the case is not currently calendared in district court.” (Emphasis

added.) As there is no record evidence suggesting the district court exercised its

jurisdiction over the offense after the existence of concurrent jurisdiction with the

superior court, Karbas’s language that the first court exercising jurisdiction over a

shared offense is exclusive of the other court absent a dismissal terminating the first

court’s jurisdiction provides no support here. Accordingly, we overrule this argument.

      In sum, because the charge was initiated by presentment, the superior court

acquired jurisdiction over the offense after the indictment issued. Despite the State’s

failure to dismiss the citation in district court, it made clear it had abandoned its

prosecution in district court, which served as the functional equivalent of a dismissal,

rendering it no longer valid and pending, and once jeopardy attached to the

indictment, the State would be precluded from later prosecuting the charge in district

court under double jeopardy principles. Further, no evidence suggests the district

court exercised its jurisdiction over the offense once concurrent jurisdiction with the

superior court existed. Therefore, we affirm the superior court’s denial of defendant’s

motion to dismiss the indictment for lack of jurisdiction.

                         IV. Motions to Suppress Evidence



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      Defendant next argues the superior court erred by denying his motions to

suppress the evidence discovered as a result of the traffic stop. First, he argues the

results of the roadside sobriety tests and later intoxilyzer test should have been

suppressed as tainted fruit of the poisonous tree of the illegal search and seizure

arising from the unlawfully compelled roadside breath test. Second, he argues the

intoxilyzer results should have been suppressed on the additional basis that the test

was administered in violation of his implied-consent rights under N.C. Gen. Stat. §§

20-16.2 and 20-139.1(b5). We disagree.

A. Preservation

      Defendant acknowledges that, although he filed pretrial motions to suppress

this evidence on these grounds, he failed to object to the admission of that evidence

at trial. Therefore, he argues that the superior court’s admission of this evidence

constituted plain error. N.C. R. App. P. 10(a)(4). Accordingly, we review these issues

only for plain error. See, e.g., State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 632

(2010) (“[T]o the extent defendant failed to preserve issues relating to the motion to

suppress, we review for plain error.”).

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty.




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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,

quotation marks, and brackets omitted). “The first step under plain error review is[ ]

. . . to determine whether any error occurred at all.” State v. Lenoir, ___ N.C. App.

___, ___, 816 S.E.2d 880, 883 (2018) (quoting State v. Oxendine, 246 N.C. App. 502,

510, 783 S.E.2d 286, 292, disc. rev. denied, ___ N.C. ___, 787 S.E.2d 24 (2016)).

B. Review Standard

      Our review of a suppression ruling is “strictly limited to determining whether

the trial judge’s underlying findings of fact are supported by competent evidence, in

which event they are conclusively binding on appeal, and whether those factual

findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). Legal conclusions “are

fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631

(2000).

C. Tainted Fruit

      Defendant asserts the results of the roadside sobriety tests and intoxilyzer test

should have been suppressed as tainted fruit of the poisonous tree of the illegal search

and seizure caused by the unlawfully compelled roadside breath test. We disagree.

      Initially, we note that although defendant in his written suppression motion

and at the suppression hearing argued that, inter alia, all evidence discovered after

the illegal roadside breath test should have been suppressed as tainted fruit of that



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poisonous tree, the superior court here did not directly address whether that evidence

may have been acquired as a direct consequence of the illegal breath test, or whether

Officer Ray was justified in prolonging the initial traffic stop to investigate

defendant’s potential impairment.       Rather, the superior court concluded that

reasonable suspicion existed to justify the initial traffic stop based primarily on

defendant’s license plate not being illuminated in violation of N.C. Gen. Stat. § 20-

129 and that, notwithstanding the results of the illegal roadside breath test, the facts

known to Officer Ray, including the later acquired results of the roadside sobriety

tests, established probable cause to arrest defendant for DWI. Nonetheless, “[t]he

question for review is whether the ruling of the trial court was correct and not

whether the reason given . . . is sound or tenable. The crucial inquiry for this Court

is admissibility and whether the ultimate ruling was supported by the evidence.”

State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 486 (2001) (quoting State v. Austin, 320

N.C. 276, 290, 357 S.E.2d 641, 650 (1987)).

      “The ‘fruit of the poisonous tree doctrine,’ a specific application of the

exclusionary rule, provides that ‘[w]hen evidence is obtained as the result of illegal

police conduct, not only should that evidence be suppressed, but all evidence that is

the “fruit” of that unlawful conduct should be suppressed.’ ” State v. McKinney, 361

N.C. 53, 58, 637 S.E.2d 868, 872 (2006) (quoting State v. Pope, 333 N.C. 106, 113–14,

423 S.E.2d 740, 744 (1992)).       But “[o]nly evidence discovered as a result of



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unconstitutional conduct constitutes ‘fruit of the poisonous tree.’ ” McKinney, 361

N.C. at 58, 637 S.E.2d at 872 (emphasis added) (citing Murray v. United States, 487

U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)). “Once the original purpose

of the stop has been addressed, in order to justify further delay, there must be

grounds which provide the detaining officer with additional reasonable and

articulable suspicion . . . .” State v. Jackson, 199 N.C. App. 236, 241–42, 681 S.E.2d

492, 496 (2009) (citation omitted).     It follows that if facts independent of those

acquired from unlawful police conduct established legal justification for a seizure,

evidence discovered during that lawful detention would not be tainted as a direct

consequence of unconstitutional conduct. Cf. McKinney, 361 N.C. at 59, 637 S.E.2d

at 873 (applying this principle in the context of assessing tainted evidence in a search

warrant affidavit); see also id. at 62, 637 S.E.2d at 874 (“[T]he admissibility of the

evidence defendant sought to suppress turns on whether the untainted evidence in

the supporting affidavit established probable cause to search his residence.”).

      “To determine whether reasonable suspicion exists, courts must look at ‘the

totality of the circumstances’ as ‘viewed from the standpoint of an objectively

reasonable police officer.’ ” State v. Johnson, 370 N.C. 32, 34–35, 803 S.E.2d 137, 139

(2017) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed.

2d 621(1981), and then Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,

134 L. Ed. 2d 911 (1996)). As defendant has not challenged the evidentiary sufficiency



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of the superior court’s findings, they are binding on appeal. State v. Campbell, 359

N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (citations omitted).

      Here, the superior court rendered the following unchallenged findings to

support its conclusion that Officer Ray had reasonable suspicion to justify the initial

traffic stop: “[(1)] Defendant was coming out of a bar [(2)] after midnight and [(3)] . .

. weave[d] within his lane. He did not cross over the fog line but did several times . .

. swerve onto the fog line[.]” Additionally, the superior court rendered the following

unchallenged findings to support its conclusion that, notwithstanding the roadside

breath test results, Officer Ray had probable cause to arrest defendant for DWI:

             [(4)] the driving of the Defendant, [(5)] the strong odor of
             alcohol, [(6)] the fact that the Defendant presented his
             debit card rather than his [driver’s license], . . . [(7)]
             [defendant] did admit to drinking alcohol, and
             [defendant’s] performance on [(8)] the walk and turn test,
             [(9)] the HGN test, and [(10)] the Romberg balance test.

      We conclude the superior court’s findings that Officer Ray observed defendant

(1) exit a bar (2) after midnight (3) and swerve several times within his driving lane,

combined with its findings that after the initial traffic stop, the legality of which

defendant does not challenge on appeal, (4) Officer Ray smelled a “strong odor of

alcohol,” (5) defendant present his debit card when asked for his driver’s license, and

(6) defendant initially denied but later admitted to drinking alcohol, were sufficient

to establish reasonable suspicion to justify prolonging the initial traffic stop to

investigate defendant’s potential impairment, including administering the roadside


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sobriety tests.   Those findings in conjunction with the findings on defendant’s

performance on the roadside sobriety tests in turn supported a conclusion that Officer

Ray had probable cause to arrest defendant for DWI, which justified the later

intoxilyzer test. Therefore, the superior court properly refused to suppress the results

of the roadside sobriety tests and the intoxilyzer test. Accordingly, we hold the

superior court did not commit plain error by admitting this evidence at trial.

      Defendant also argues that Officer Ray’s testimony that “[i]f [defendant] tested

low enough, [he] would [have] give[n defendant] a ride home” and “for the sake of the

.08 standard, [he] was going to give [defendant] a ride home if he fell below that[,]”

establishes that Officer Ray “lacked sufficient information to believe that . . .

defendant was appreciably impaired at the point where the alco-sensor test was

administered.” This argument fails because Officer Ray’s

             subjective opinion is not material. Nor are the courts
             bound by an officer’s mistaken legal conclusion as to the
             existence or non-existence of probable cause or reasonable
             grounds for his actions. The search or seizure is valid when
             the objective facts known to the officer meet the standard
             required.

Bone, 354 N.C. at 10, 550 S.E.2d at 488 (emphasis omitted) (quoting State v. Peck,

305 N.C. 734, 741, 291 S.E.2d 637, 641–42 (1982); other citation omitted); see also id.

(holding an officer’s suppression hearing testimony that he did not believe he had

probable cause to arrest was irrelevant in determining whether, objectively, the facts

known to that officer created probable cause to justify a search-incident-to-arrest


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seizure of evidence). Having concluded above that the objective facts known to Officer

Ray before the administration of the roadside breath test established reasonable

suspicion to justify prolonging the initial traffic stop to investigate defendant’s

potential impairment, we overrule this argument.

D. Statutory Implied-Consent Rights

      Defendant next asserts the superior court erred by denying his motion to

suppress the intoxilyzer results because it improperly concluded that Officer Ray was

not required under N.C. Gen. Stat. § 20-139.1(b5) to re-advise him of his implied-

consent rights before administering the breath test on a second machine. Defendant

does not dispute that Officer Ray duly advised him of his implied-consent rights

before he agreed to submit to a chemical analysis of his breath; rather, he argues that

because the test administered on the first intoxilyzer machine failed to produce a

valid result, it was a “nullity,” and thus Officer Ray’s subsequent request that

defendant provide another sample to administer the test on a different intoxilyzer

machine constituted a request for a “subsequent chemical analysis” under N.C. Gen.

Stat. § 20-139.1(b5). Therefore, defendant argues, Officer Ray violated his right

under that statute to be re-advised of his implied-consent rights before administering

the test on the second machine. We disagree.




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      We review the superior court’s legal conclusions de novo. Hughes, 353 N.C. at

208, 539 S.E.2d at 631. We also review issues of statutory interpretation de novo.

Davis, 368 N.C. at 797, 785 S.E.2d at 315.

      An officer must advise a person charged with DWI of his or her implied-consent

rights before requesting that person to submit to a chemical analysis of the breath.

N.C. Gen. Stat. § 20-16.2(a) (2017). An officer may then request that person “submit

to a chemical analysis of [his or her] blood or other bodily fluid or substance in

addition to or in lieu of a chemical analysis of the breath” and, “[i]f a subsequent

chemical analysis is requested pursuant to this subsection, the person shall again be

advised of the implied consent rights in accordance with G.S. 20-16.2(a).” N.C. Gen.

Stat. § 20-139.1(b5) (2017) (emphasis added).

      The plain and unambiguous language of N.C. Gen. Stat. § 20-139.1(b5)

provides that the re-advisement right triggers only when an officer requests a person

to submit to a chemical analysis of “the person’s blood or other bodily fluid or

substance in addition to or in lieu of a chemical analysis of the breath[.]”      Id.

(emphasis added). Officer Ray’s request that defendant provide another sample for

the same chemical analysis of the breath on a second intoxilyzer machine was not one

for a “subsequent chemical analysis” under the statute. Accordingly, N.C. Gen. Stat.

§ 20-139.1(b5)’s re-advisement requirement never triggered, and the superior court

properly refused to suppress the intoxilyzer results on this basis.



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      Nonetheless, defendant relies on State v. Williams, 234 N.C. App 445, 450, 759

S.E.2d 350, 353 (2014), to support his position. He argues that “Williams stands for

the unqualified proposition that when a subsequent test is requested, the defendant

must be re-advised of the implied consent rights.” We disagree. In Williams, we held

that when a person refuses to submit to a breath test, an officer must re-advise that

person of his implied-consent rights before requesting he or she submit to a blood test

instead of a breath test pursuant to N.C. Gen. Stat. § 20-139.1(b5). Id. at 452, 759

S.E.2d at 354. Defendant’s reliance on Williams is misguided because the officer

there requested the defendant to submit to a different chemical analysis—a blood

test—in lieu of the breath test. Here, Officer Ray only requested that defendant

submit to one chemical analysis—the breath test—which was not in addition to or in

lieu of the original breath test. Accordingly, we overrule this argument.

                 V. “Prior Conviction” for Enhanced Sentence

      Last, defendant asserts the superior court erred by sentencing him as a Level

Two offender after finding the existence of a grossly aggravating factor based on upon

his prior DWI conviction. Defendant was convicted in superior court of DWI on 15

September 2016. He appealed that conviction on 26 September 2016, which remained

pending before this Court at the time of the instant 31 August 2017 sentencing

hearing. Before the superior court and now on appeal, defendant argues his prior

DWI conviction could not be used to enhance his sentence because the prior



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conviction, since it was pending on appeal, was not “final” and therefore could not be

used as a “prior conviction” to find the existence of a grossly aggravating factor under

N.C. Gen. Stat. § 20-179(c). We disagree.

      We review issues of statutory interpretation de novo. Davis, 368 N.C. at 797,

785 S.E.2d at 315. “When the language of a statute is clear and unambiguous, there

is no room for judicial construction and the courts must give the statute its plain and

definite meaning, and are without power to interpolate, or superimpose, provisions

and limitations not contained therein.” State v. Green, 348 N.C. 588, 596, 502 S.E.2d

819, 824 (1998) (quoting In re Banks, 295 N.C. 236, 239–40, 244 S.E.2d 386, 388–89

(1978)).

      N.C. Gen. Stat. § 20-179(c) defines a “prior [DWI] conviction” as a “grossly

aggravating factor[ ]” for enhanced sentencing purposes if “[t]he conviction occurred

within seven years before the date of the offense for which the defendant is being

sentenced[.]” N.C. Gen. Stat. § 20-179(c)(1)(a) (2017). N.C. Gen. Stat. § 20-4.01

provides in relevant part that “[u]nless the context requires otherwise, the following

definitions apply throughout . . . Chapter [20] . . . .” Subdivision (4a)(a)(1) of that

section defines “[c]onviction” in relevant part as “[a] final conviction of a criminal

offense[.]” N.C. Gen. Stat. § 20-4.01(4a)(a)(1) (2017) (emphasis added). Defendant

argues that because his prior DWI conviction was pending on appeal at the time of

the sentencing hearing, the prior conviction was not “final” under Chapter 20’s



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                                   Opinion of the Court



definition of a “conviction” and it thus did not constitute a “prior conviction” under

N.C. Gen. Stat. § 20-179(c)(1)(a). We disagree.

      Despite N.C. Gen. Stat. § 20-4.01(4a)(a)(1) defining a conviction as a “final”

conviction, we believe the “context [of finding the existence of a grossly aggravating

factor based upon a prior DWI conviction in superior court] requires,” id. § 20-4.01,

an interpretation that a “prior conviction” not be limited to only those not pending on

direct appeal to the appellate courts. The plain and unambiguous language of the

more specific statute of N.C. Gen. Stat. § 20-179(c)(1)(a) defines a “prior conviction”

merely as a “conviction [that] occurred within seven years before” the later offense.

Because there is no language limiting that definition to a “final” conviction or only

those not challenged on appeal, we have no authority to interpret the statute as

imposing such a limitation.

      Further, even if we found this statutory language ambiguous, we find support

for our interpretation on the grounds that interpreting it otherwise would undermine

the purpose behind enhancing a repeat DWI offender’s sentence, as a person with a

qualifying prior conviction appealed from superior court could be sentenced for a later

conviction as though he or she had no prior conviction. Additionally, we note that if

a person’s sentence is enhanced based upon a prior DWI conviction that is later

reversed on direct appeal, he or she is entitled to be resentenced at the proper offender

level without that prior conviction. See State v. Bidgood, 144 N.C. App. 267, 276, 550



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                                    Opinion of the Court



S.E.2d 198, 204 (2001) (remanding for resentencing on the proper prior record level

when the defendant’s sentence was enhanced based on a prior conviction that was

subsequently reversed on appeal).

      Therefore, the superior court properly concluded that defendant’s prior DWI

conviction, despite it being pending on appeal, constituted a “prior conviction” under

N.C. Gen. Stat. § 20-179(c)(1). Accordingly, we hold the superior court properly found

the existence of a grossly aggravating factor based on the prior DWI conviction and

affirm its sentence.

      As a secondary matter, we note that this Court has since filed an opinion

adjudicating defendant’s appeal from his prior DWI conviction. See State v. Cole, No.

17-732 (N.C. App. Aug. 21, 2018) (unpublished). While we found no error in part, we

also remanded in part for resentencing and for the entry of a suppression order, id.

slip op. at 19, with instructions for the superior court to resolve a conflict in the

testimony presented at the suppression hearing, id. slip op. at 10–12. We reiterate

that if this DWI conviction is later overturned, defendant is entitled to be resentenced

at the appropriate offender level and the entry of a properly reflective judgment.

                                    VI. Conclusion

      The superior court properly denied defendant’s motion to dismiss the

indictment for lack of jurisdiction because that charge was no longer pending or valid

in district court.     The superior court properly refused to suppress the evidence



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                                  Opinion of the Court



obtained after the roadside breath test because its findings support a conclusion that,

before that test, Officer Ray had objective reasonable suspicion to justify prolonging

the initial traffic stop to investigate defendant’s potential impairment. The superior

court also properly refused to suppress the intoxilyzer results because it properly

concluded that Officer Ray’s request that defendant provide another sample for the

same breath test on a different machine was not a request for a “subsequent chemical

analysis” triggering N.C. Gen. Stat. § 20-139.1(b5)’s re-advisement requirement.

Absent error in these suppression rulings, the trial court did not commit plain error

by admitting that evidence at trial. Finally, the superior court properly concluded

that defendant’s prior DWI conviction, despite it being pending on appeal, constituted

a “prior conviction” under N.C. Gen. Stat. § 20-179(c)(1), and thus supported its

finding of the existence of a grossly aggravating factor for enhanced sentencing

purposes. Accordingly, we hold that defendant received a fair trial and sentence, free

of error.

       NO ERROR.

       Chief Judge McGEE and Judge ARROWOOD concur.




                                         - 27 -
