                              NO. COA14-270

                    NORTH CAROLINA COURT OF APPEALS

                       Filed: 16 September 2014


STATE OF NORTH CAROLINA

     v.                                Durham County
                                       No. 12 CRS 60313
JOSEPH OVEROCKER,
          Defendant.


     Appeal by the State from order entered 4 October 2013 by

Judge Carl R. Fox in Durham County Superior Court.        Heard in the

Court of Appeals 28 August 2014.


     Attorney General Roy Cooper, by Assistant Attorney General
     Christopher W. Brooks, for the State.

     Appellate Defender Staples Hughes, by Assistant Appellate
     Defender Kathleen M. Joyce, for defendant-appellee.


     GEER, Judge.


     The   State    appeals   the   trial   court's   order   granting

defendant Joseph Overocker's motion to suppress and dismissing

the charges against him based on a lack of probable cause to

arrest defendant for impaired driving and unsafe movement.          We

hold that the trial court's findings of fact are supported by

the evidence and in turn support the court's conclusion of law

that the reasons relied upon by the officer for the arrest did

not provide the officer with probable cause that defendant was
                                          -2-
either       impaired    or   had     engaged       in     unsafe    movement.       We,

therefore, affirm the order to the extent it grants the motion

to suppress.         Because, however, defendant did not make a written

or oral motion to dismiss, controlling precedent requires that

we reverse the trial court's dismissal of the charges.

                                         Facts

       On 11 October 2012, defendant arrived at about 4:00 p.m. at

a   sports     bar   called    Time     Out   Bar     &    Grill    in   Durham,   North

Carolina.       Defendant parked his Porsche Cayenne SUV directly in

front of the bar and met up with several friends, including

Claude "Chip" Teeter.            While defendant was inside the bar, a

group of motorcyclists pulled into the Time Out parking lot, and

one of them parked her motorcycle behind defendant's SUV.                            When

defendant left the bar and started backing out of his parking

spot, he collided with the motorcycle.

       Officer Everette Jefferies, an off-duty police officer with

the Durham Police Department, had ridden his motorcycle to Time

Out    and    noticed    defendant      when     he       first    arrived.      Officer

Jefferies was outside in the parking lot when defendant was

leaving, and he witnessed the collision.

       Officer Mark Lalumiere, who was on duty with the Durham

Police Department, was dispatched to the scene.                          After talking

with   defendant        and   Officer    Jefferies,         Officer      Lalumiere   had
                                          -3-
defendant perform standardized field sobriety tests ("FSTs").

Another     Durham      Police     Department          officer,     Officer        Marvin

Hembrick,       performed    two       portable       breath    tests    ("PBTs")      on

defendant.         Officer    Lalumiere         then     arrested       defendant     for

impaired driving and unsafe movement.

      On 11 April 2013, a district court judge found defendant

guilty     of    both   charges,        and    defendant       timely    appealed     to

superior court.         On 11 July 2013, defendant filed a motion to

suppress, asking the superior court to suppress (1) all evidence

gathered after the stop of defendant's vehicle or the first

interview of defendant for lack of reasonable suspicion and (2)

all   evidence     based     on    a    lack    of    probable    cause       to   arrest

defendant.       After hearing testimony from defendant, Mr. Teeter,

and Officers Jefferies, Lalumiere, and Hembrick, the superior

court entered an order granting defendant's motion to suppress.

Additionally, in the same order, the court dismissed the charges

against defendant.

      In   the    suppression      order,       the    court   made     the   following

findings of fact.        Defendant and Mr. Teeter arrived at Time Out

at around 4:00 or 4:30 p.m.               Mr. Teeter testified that he and

defendant were sitting at a table outside on Time Out's patio.

Defendant and Mr. Teeter left Time Out at around 8:00 or 8:30
                                               -4-
p.m.    Over the course of the evening, Mr. Teeter consumed four

beers, and defendant consumed four bourbons on the rocks.

       Officer      Jefferies       noticed      defendant      and    Mr.     Teeter      and

because "they were talking loudly, . . . Officer Jeffries [sic]

believed      the       Defendant       was    impaired."       Apart        from   talking

loudly,      "there       was   nothing         unusual     about      the    Defendant's

behavior or conversation in the bar."

       While defendant and Mr. Teeter were in the restaurant, a

group   of    motorcyclists           parked     their    vehicles      in     Time      Out's

parking lot.            One of these, "a pink, ninja sport motorcycle,"

parked "three to four feet behind the Defendant's Porsche sport

utility vehicle on the passenger side."                       The trial court found

that the pink motorcycle was "illegally parked."

       At around 8:15 p.m.,               when it      was dark outside,            Officer

Jefferies         saw    defendant       and    Mr.    Teeter        walk    out    of     the

restaurant, and he noticed that defendant and Mr. Teeter were

still talking loudly.               The trial court found that "[w]hen the

Defendant     left       with   his     friend,      [Officer    Jefferies]         saw    the

Defendant         and    thought    the       Defendant     should     not     be   driving

because      he    continued       to    talk    loudly.        He    did     not   observe

anything      unusual       about       the     Defendant's      appearance,          smell,

walking, balance, eyes, or speech, other than he was talking
                                      -5-
loudly, upon which he based his opinion that the Defendant was

impaired and should not be driving."

    Defendant got into his vehicle with the radio playing and

the air conditioning on.            When defendant began to back up, a

motorcyclist ran toward the illegally parked motorcycle, and,

together       with     other   motorcyclists,        started    yelling     at

defendant's SUV.        One motorcyclist got onto the motorcycle, but

was unable to move it in time.            He jumped off, and defendant's

SUV "backed over it, or struck it."                The motorcycle fell over

and it was dragged along the pavement for a short distance.

    When defendant "heard something," he stopped and got out of

his vehicle.          One person was slapping his vehicle, while two

others were holding the motorcycle he had struck.                 Defendant's

SUV had a small scratch on the bumper.

    The trial court found that "[b]ecause the motorcycle stood

lower than the rear window of the Defendant's vehicle and there

were other motorcycles parked in the parking space next to the

passenger side of the Defendant's vehicle, there is no evidence

the Defendant saw, or could even see the pink motorcycle parked

behind   his    vehicle     which   was   in   a    parking   space,   or   was

otherwise aware of its presence."

    After defendant's collision with the pink motorcycle, the

police were called, and Officer Lalumiere was dispatched to Time
                                        -6-
Out at around 8:15 p.m.               When he arrived, Officer Lalumiere

"found    a   Porsche    Cayenne      sport      utility      vehicle       and   a   pink

motorcycle behind the parking spaces in the lane between parking

spaces in the parking lot of the establishment.                           The motorcycle

had scratches on it and there were gouge marks in the pavement

from the kick stand of the motorcycle."

       Officer Lalumiere spoke with defendant, and defendant said

that "he came out of the restaurant and backed up striking the

motorcycle."        Defendant told the officer that he "had been at

the bar for four hours" and initially claimed he had two drinks.

When     Officer    Lalumiere     asked         him   again       about     the   drinks,

defendant said he might have had three.                     The trial court found

that   "[t]he      Defendant    had   an    odor      of    alcohol       which   Officer

Lalumiere described as 'not real strong, light.'"

       Defendant then consented to Officer Lalumiere's conducting

two FSTs.       The first test Officer Lalumiere asked defendant to

perform was the "Walk and Turn Test."                      After Officer Lalumiere

instructed him how to perform the test, defendant "took nine

steps heel-to-toe down one of the lines for a parking space

while counting aloud without a problem."                      Defendant then asked

Officer Lalumiere what he was supposed to do next.                                Officer

Lalumiere     reminded   defendant         to    follow     the    instructions,       and
                                 -7-
defendant "walked back nine steps heel-to-toe down on the line

while counting aloud without a problem."

    Officer Lalumiere then asked defendant to perform the "One-

Legged Stand Test."    He explained the directions for that test,

and when defendant was told to start, defendant "raised his foot

more than six inches above the pavement, stopped after fifteen

seconds, [and] put his foot down[.]"       Defendant then looked at

Officer Lalumiere and asked what he was supposed to do next.

After Officer Lalumiere told defendant to complete the test,

defendant "picked up his foot and continued for at least fifteen

more seconds until he was stopped by Officer Lalumiere."

    Mr. Teeter watched defendant while he performed the FSTs.

According to the trial court, "Mr. Teeter did not see anything

wrong with the Defendant's standardized field sobriety tests and

he did not believe the Defendant was impaired, or unfit to drive

on this occasion."    The trial court noted that Mr. Teeter had no

prior criminal convictions and that he "has a severe and very

noticeable stutter when he talks and neither Officer Jeffries

[sic] nor Officer Lalumiere recalled Mr. Teeter spoke with a

stutter when he was interviewed after the accident."

    Officer   Lalumiere    had   requested   an   officer   who   was

certified to administer PBTs.     Officer Hembrick responded and,

once at the scene, noticed that defendant had "a faint odor of
                                           -8-
alcohol      on    his   person      and   red,    glassy      eyes."      Defendant

submitted to two PBTs, both of which indicated the presence of

alcohol in defendant.

       Overall, Officer Lalumiere observed defendant for about an

hour   and       concluded    that    defendant        "'had   consumed   alcohol.'"

However, defendant "was not slurring his speech and he walked

without stumbling."           While in the presence of the three officers

-- Officers Lalumiere, Jefferies, and Hembrick -- "[d]efendant's

speech was not slurred and he never staggered when he walked . .

. ."    Nonetheless, "[b]ased upon the fact that the Defendant had

been   at    a    bar,   he   was    involved     in    a   traffic   accident,   his

performance tests and the odor of alcohol, Officer Lalumiere

believed the Defendant 'was impaired and it was more probable

than not that he would blow over the legal limit.'                        Therefore,

he placed the Defendant under arrest for Impaired Driving."

       Based on these findings, Judge Fox concluded,

                  3.   The facts and circumstances known
             to Officer Lalumiere as a result of his
             observations and testing of the Defendant
             were insufficient, under the totality of the
             circumstances, to form an opinion in the
             mind of a reasonable and prudent man/officer
             that there was probable cause to believe
             that the offenses of Impaired Driving and
             Unsafe Movement had been committed and the
             Defendant was the person who committed those
             offenses.

                  4.   The arrest of the Defendant for
             Impaired Driving and Unsafe Movement on this
                                        -9-
            occasion violated the Fourth Amendment of
            the United States Constitution and the North
            Carolina Constitution.

The    trial   court,     therefore,     allowed   defendant's      motion    to

suppress and ordered that "[t]he charges of Impaired Driving and

Unsafe Movement against the Defendant" be dismissed.                The State

timely appealed to this Court.

                             Standard of Review

       "'[T]he scope of appellate review of an order [regarding a

motion to suppress] is strictly limited to determining whether

the trial [court]'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 [court]'s ultimate conclusions of law.'"              State v. Salinas,

366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (quoting State v.

Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).                Findings

of fact that are not challenged "are presumed to be supported by

competent evidence and are binding on appeal."             Tinkham v. Hall,

47 N.C. App. 651, 652-53, 267 S.E.2d 588, 590 (1980).

       Further, "'[i]f there is a conflict between the state's

evidence and defendant's evidence on material facts, it is the

duty   of   the   trial    court   to    resolve   the   conflict    and     such

resolution will not be disturbed on appeal.'"              State v. Veazey,

201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009) (quoting
                                        -10-
State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548

(1982)).      "This deference is afforded the trial judge because he

is in the best position to weigh the evidence, given that he has

heard all of the testimony and observed the demeanor of the

witnesses. . . .         '[B]y reason of his more favorable position,

[the trial judge] is given the responsibility of discovering the

truth.'"      State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625,

631 (2000) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d

597, 601 (1971)).

               The State's Challenges to Findings of Fact

       The State challenges a number of the trial court's findings

of fact.      Based on our review of the record, we hold that each

of   the    findings    is   supported     by   competent    evidence    or    is   a

reasonable inference drawn from the evidence.

       The State first points to the part of the trial court's

finding of fact number 6 that the pink motorcycle "stood lower

than    the   rear   window    of    the   Defendant's      vehicle."     At    the

hearing,      Officer    Jefferies     stated     that   the    height    of    the

motorcycle was "[c]lose -- right at" defendant's rear window and

that the motorcycle "probably would come up . . . to that line

right      there."      Officer     Jefferies    demonstrated    where    he    was

referring to on a photo of the rear of defendant's SUV, although
                                         -11-
the record does not indicate the location of the line on the

photo where Officer Jefferies was pointing.

       Because of the failure of counsel to memorialize in the

record where Officer Jefferies pointed, the State contends that

"close" "could mean above or below the [rear] window level," and

this    ambiguity     renders     the    evidence     incompetent.        The     trial

court, however, was able to observe precisely where the officer

was pointing.

       In    addition,     Officer      Jefferies    explained     that    the    pink

motorcycle's "fairing is on the bottom," the windshield was part

of the fairing, the windshield is "exposed . . . maybe about a

[sic]       inch"   over    the    handlebars,       and    "the   windshield       is

approximately 3 to 4 feet tall from the fairing."                    Later in the

hearing,      after   all    the     evidence       was    presented,     Judge    Fox

indicated his own familiarity with the same or similar type of

motorcycle as the pink motorcycle defendant struck:

              I'm wondering how in the world any idiot
              would park a motorcycle behind an SUV.     I
              mean, I'm quite familiar with those ninja
              bikes.   They are not very tall.     They're
              shorter than the average motorcycle, which
              is not very tall. . . . [I]t's unfathomable
              to me how you could do that.    I mean, how
              you could do that and leave your motorcycle
              and not expect to come back and find it
              creamed. I just don't understand that.

       "[I]t is the appellant who has the burden in the first

instance of demonstrating error from the record on appeal[,]"
                                           -12-
State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 764 (1994),

and    the    State      has    failed    to    show        that   Officer      Jefferies'

reference to the photo of the SUV supported a finding contrary

to the finding that "the motorcycle stood lower than the rear

window of the Defendant's vehicle."                        Further, the finding that

the    motorcycle        "stood    lower       than        the   rear    window    of     the

Defendant's vehicle," along with Judge Fox's remark that "it's

unfathomable . . . how you could . . . leave your motorcycle

[behind      an   SUV]    and     not    expect       to    come   back    and    find     it

creamed," indicate that Judge Fox dismissed any suggestion that

the    top   of   the    motorcycle       stood   at        or   above    the    bottom    of

defendant's rear windshield.                   To the extent that any of the

evidence offered as to the height of the pink motorcycle was

conflicting, it was the duty of the trial court to resolve the

conflict.

       The State also challenges the portion of finding of fact

number 6 that "there is no evidence the Defendant saw, or could

even see the pink motorcycle parked behind his vehicle which was

in a parking space, or was otherwise aware of its presence."

Defendant testified that when he was walking to his SUV he did

not see the motorcycle, and when he got to the SUV he did not

walk around it "to check . . . if anything was parked behind

it."    Moreover, the trial court found that the motorcycle stood
                                              -13-
lower     than     defendant's           rear           windshield,         suggesting           that

defendant would not have been able to see the motorcycle from

inside the SUV.

       In arguing that the finding incorrectly stated that "no

evidence"       existed          that    defendant            saw     or     could        see     the

motorcycle, the State chiefly contends that Officer Jefferies

testified "that a reasonable person would be able to see the

motorcycle parked four to five feet behind the defendant's car."

This     assertion       is       not    a    fair        representation             of     Officer

Jefferies' testimony.               When Judge Fox asked Officer Jefferies

whether       defendant       "[w]as     .    .     .    in    a    position       to      see    the

motorcycle       parked          [behind      his        SUV][,]"          Officer        Jefferies

responded, "I think a reasonable person probably could have seen

it because there were several motorcycles out there."                                     (Emphasis

added.)       The trial court could reasonably have concluded that

the    mere    fact     (1)      that    Officer         Jefferies         thought        defendant

"could have seen it" or (2) that there were other motorcycles

parked    elsewhere         in    the    parking         lot    was    not     evidence          that

defendant did         see     or should have seen the motorcycle parked

directly behind his SUV.

       The State also suggests that there was actual evidence that

defendant       could       see    the       motorcycle         because       it      "was       only

partially behind the defendant's car" and "there was [sic] at
                                           -14-
least three people that saw the motorcycle[,]" including Officer

Jefferies, the individual who tried to move the motorcycle, and

Mr. Teeter.        With respect to the position of the motorcycle,

while Officer Jefferies testified that "[t]he front wheel -- the

forks, the front tire and part of the front fender was behind

part of the vehicle," the trial court's unchallenged finding of

fact that there were motorcycles parked in the parking space on

defendant's passenger side suggests that defendant's view of the

rest of the pink motorcycle was obfuscated.

    As for the ability of others to see the motorcycle, the

State disregards the fact that it did not show that any of the

people who saw the motorcycle were in a location with similar

visibility to that of defendant at the time they noticed the

motorcycle.             Indeed,    the     record    shows      that     these    three

individuals       had    very     different   vantage      points      than    defendant

when he walked to his car, got into his car, and backed up.

    Moreover,           although     the    record    indicates         that     Officer

Jefferies    and    Mr.     Teeter    witnessed      one   to    three    individuals

trying to move the pink motorcycle before defendant hit it,

there   is   no    actual       testimony     from   Officer     Jefferies       or   Mr.

Teeter that either one of them noticed that the pink motorcycle

was parked behind defendant's SUV before the frenzied efforts to

try to move it.             At most, Officer Jefferies testified that,
                                        -15-
prior to defendant's backing up, he was aware that there were

motorcycles in the parking lot.                 Based on our review of the

evidence, the trial court could reasonably conclude that even

though others may have been aware of the pink motorcycle before

defendant      backed    into   it,   none     of   the   evidence   showed    that

defendant did see or could have seen the pink motorcycle parked

behind his SUV.

       The State next challenges the portion of finding of fact 10

that     the    pink     motorcycle     was     "illegally      parked"     behind

defendant's     SUV.      The   State    presented        evidence   --   including

testimony from Officers Jefferies and Lalumiere -- that the pink

motorcycle was not parked within the lines of any parking space

and that it was parked directly behind defendant's SUV in the

area of the parking lot where vehicles were intended to drive.

       We fail to see any basis for objecting to the trial court's

finding given the undisputed evidence regarding the location of

the motorcycle.         Indeed, the State during the motion to suppress

hearing essentially conceded that point, although arguing that

the fact was immaterial: "Maybe the motorcycle being behind the

defendant's car led to an incident that wasn't the defendant's

fault.    That's not the issue.           The issue is: Was the defendant

impaired at the time that this incident happened?"

       Finally, the State challenges finding of fact 19:
                                    -16-
                19.   Mr. Teeter did not see anything
           wrong with the Defendant's standardized
           field sobriety tests and he did not believe
           the Defendant was impaired, or unfit to
           drive on this occasion.    He has no prior
           criminal convictions. Mr. Teeter also has a
           severe and very noticeable stutter when he
           talks and neither Officer Jeffries [sic] nor
           Officer Lalumiere recalled Mr. Teeter spoke
           with a stutter when he was interviewed after
           the accident.

    First,       the   State   argues   that   there   was    no   competent

evidence to support a finding that Mr. Teeter "did not believe

the Defendant was impaired, or unfit to drive on this occasion."

However,   Mr.    Teeter's     testimony   indicated   that   he   was   with

defendant throughout the entire evening and             that he     did not

"notice [defendant] acting unusually . . . in the restaurant at

all" or "being unusually loud or boisterous."             Mr. Teeter also

stated that he "did not see anything wrong" with defendant's

performance on the FSTs that Officer Lalumiere conducted.                This

testimony was competent and supported the trial court's finding

-- a reasonable inference from that testimony -- that Mr. Teeter

did not believe defendant was impaired or unfit to drive.

    The State also contends there is no evidence that                    "Mr.

Teeter . . . has a severe and very noticeable stutter when he

talks[.]" However, as the trial court was able to "see[] the

witnesses, [and] observe[] their demeanor as they testif[ied],"

he was in the best position to determine that Mr. Teeter spoke
                                            -17-
with a stutter.          Hughes, 353 N.C. at 208, 539 S.E.2d at 631.

The State does not point to any evidence that Mr. Teeter did not

have a stutter.          Indeed, defense counsel noted that stutter on

the record.        Accordingly, we conclude that competent evidence

supports finding of fact 19.

           The State's Challenges to the Conclusions of Law

      The State argues that the trial court's findings of fact do

not   support      the      conclusion        that       Officer       Lalumiere       lacked

probable     cause    to     arrest     defendant          for       impaired       driving.1

Initially,    we     note    that     the     trial      court       determined        Officer

Lalumiere    lacked      probable      cause        based       on    "[t]he      facts       and

circumstances known to Officer Lalumiere as a result of                                       his

observations       and      testing      of        the    Defendant          .     .      .    ."

Additionally, the trial court also stated in finding of fact 23

that Officer Lalumiere concluded there was probable cause based

on "the fact that the Defendant had been at a bar, he was

involved in a traffic accident, his performance tests[,] and the

odor of alcohol[.]"           Because the State does not challenge this

finding, it is binding on appeal.

      In   reviewing       the    determination           that       probable     cause       was

lacking,     therefore,          we   consider           only        those       "facts       and

      1
      The State does not challenge the trial court's conclusion
that probable cause was lacking for defendant's unsafe movement
violation.
                                             -18-
circumstances known to Officer Lalumiere as a result of                                     his

observations," which include the fact that defendant had been at

a bar, was involved in a collision with the pink motorcycle,

performed sobriety tests, and had an odor of alcohol.

       Probable cause "deals with probabilities and depends on the

totality of the circumstances" and "'[t]he substance of all the

definitions of probable cause is a reasonable ground for belief

of guilt.'"       Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed.

2d 769, 775, 124 S. Ct. 795, 800 (2003) (quoting Brinegar v.

United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S.

Ct. 1302, 1310 (1949)).                  "'The test for whether probable cause

exists     is     an    objective           one     --    whether        the    facts       and

circumstances,         known    at    the    time,       were    such    as    to   induce    a

reasonable police officer to arrest, imprison, and/or prosecute

another.'"        Thomas       v.    Sellers,     142     N.C.    App.    310,      315,    542

S.E.2d 283, 287 (2001) (quoting Moore v. Evans, 124 N.C. App.

35, 43, 476 S.E.2d 415, 422 (1996)).

       With regard to what Officer Lalumiere knew when he arrested

defendant, the trial court found that when he arrived at Time

Out, Officer Lalumiere knew that defendant had been inside Time

Out drinking up to three drinks over the course of approximately

four     hours    (although         in    actuality        defendant      had       had    four

drinks).        Defendant "came out of the restaurant and backed up
                                      -19-
striking the motorcycle[,]" which was illegally parked behind

defendant's SUV.       There was no evidence that defendant saw the

motorcycle or should have seen it before he backed up.

      The State argues that other findings of fact related to the

collision     with    the    motorcycle       support     a    conclusion           that

defendant was impaired.          The State points to the trial court's

finding     that    defendant    dragged      the    motorcycle     for    a    short

distance before stopping, that there were gouge marks in the

pavement as a result, and that defendant did not react to the

individuals yelling at him to stop.              The State argues that these

findings    constitute      "evidence    of    the    defendant's     failure        to

recognize his surroundings . . . and . . . defendant had a

delayed reaction time after he hit the motorcycle."

      The trial court, however, made no finding -- and the record

contains no evidence -- regarding whether defendant's reaction

time was delayed        in light of        the "short distance" defendant

traveled    after    hitting    the   motorcycle.         Moreover,       the   trial

court found that defendant's SUV suffered only a small scratch

and   the   motorcycle's       only   reported       damage   was   that       it   had

"scratches     on    it."       Further,      the     trial   court's      findings

explained why defendant did not hear individuals yelling: he had

the   radio   and    air    conditioning      on.       The   State's      argument

regarding defendant's recognition of his surroundings and any
                                    -20-
delayed   reaction   asks   this    Court   to   weigh   the   evidence   and

assess its credibility in a manner different from that of the

trial court.   We are not allowed to do so.

    In short, the trial court's findings of fact support its

conclusion that there was no probable cause                to believe that

defendant had engaged in unsafe movement.                The State, at the

trial level, essentially conceded that point, but argued there

was still evidence of impairment.

    The trial court's findings proceed to establish the lack of

any other reasonable basis for concluding that defendant was

impaired.    The trial court found that apart from the traffic

accident, Officer Lalumiere relied for probable cause on the

fact that defendant had been at a bar, his performance tests,

and the odor of alcohol on defendant.              Yet, the trial court

found that Officer Lalumiere testified that the strength of the

alcohol odor was "'not real strong, light.'"              In addition, none

of the three officers on the scene observed defendant staggering

or stumbling when he walked, and his speech was not slurred.

Further, the only error defendant committed when performing the

two field sobriety tests was to ask the officer half-way through

each test what to do next.         When instructed to finish the tests,

defendant did so.
                                      -21-
      The   State    points   to    Officer       Lalumiere's   testimony   that

defendant    "didn't    do    terrible"      on    the   FSTs   as   "additional

evidence . . . that defendant had committed an implied consent

offense."     However, this testimony conflicts with Mr. Teeter's

testimony that he saw nothing wrong with defendant's performance

on the FSTs.        Further, the trial judge remarked that "these

tests do not even begin to . . . come to the level . . . that I

would view as being failed."          The court, therefore, resolved any

conflict in the evidence as to defendant's performance on the

FSTs in favor of defendant.

      The State argues on appeal that because Officer Lalumiere

testified he spoke with Officer Jefferies, necessarily, Officer

Jefferies' observations of defendant and his belief about his

impairment provided part of Officer Lalumiere's probable cause.

The trial court, however, in finding of fact 23, set out the

circumstances upon which Officer Lalumiere relied in determining

that he had probable cause to arrest defendant.                  That finding,

which is binding on appeal, does not mention Officer Jefferies.

It is apparent from other findings of fact that the trial court

did   not   find    Officer   Jefferies      completely     credible.       After

weighing the evidence and assessing credibility, the trial court

apparently     determined          that   Officer        Jefferies'     claimed

observations of defendant's prior behavior were not part of the
                                    -22-
basis for defendant's arrest.       The State presents no grounds for

us to revisit that determination on appeal.

      In sum, the trial court found that while defendant had had

four drinks in a bar over a four-hour time frame, the traffic

accident in which he was involved was due to illegal parking by

another person and was not the result of unsafe movement by

defendant.      Further,     defendant's    performance    on     the     field

sobriety tests and his behavior at the accident scene did not

suggest impairment.     A light odor of alcohol, drinks at a bar,

and   an   accident   that    was   not    defendant's    fault    were    not

sufficient   circumstances,     without     more,   to   provide    probable

cause to believe defendant was driving while impaired.

      The State contends that the facts of this case are similar

to those in Steinkrause v. Tatum, 201 N.C. App. 289, 295, 689

S.E.2d 379, 383 (2009), aff'd per curiam, 364 N.C. 419, 700

S.E.2d 222 (2010), in which this Court found probable cause to

arrest the driver for impaired driving when (1) the driver was

involved in a one-car accident that resulted in the car being

found upside down in a ditch after rolling several times, (2)

one officer noted an odor of alcohol on the driver, and (3) a

second officer observed that the driver looked dirty and sleepy.

The Court specifically found probable cause based on the "fact
                                         -23-
and     severity    of    the     one-car       accident          coupled     with       some

indication of alcohol consumption."                Id.

       The Court emphasized that a "car accident alone does not

support a finding of probable cause."                   Id. at 294, 689 S.E.2d at

382.    In this case, the accident was minor and determined by the

trial court to not be defendant's fault.                     Nothing in Steinkrause

or any of the other cases cited by the State suggest that such

an accident combined with evidence of alcohol consumption and a

light odor of alcohol is sufficient to give rise to probable

cause with no evidence of actual impairment.

       Finally, the State argues that "while the numerical reading

on the portable breath test was not admissible at the probable

cause    hearing,    that       number    was     before      the    officer        in    his

consideration of whether defendant had operated a motor vehicle

with a certain alcohol concentration."                       The State represents

that finding of fact 23 finds that "Officer Lalumiere had a

portable    breath       test    reading        that     indicated       to       him    that

defendant 'was impaired and it was more probable than not that

he would blow over the legal limit.'"                    However, contrary to the

State's    implication      that     Officer       Lalumiere        used      a    specific

alcohol    concentration        reading    from        one   of    the   PBTs      to    form

probable cause, the evidence and the order only indicate that
                                    -24-
the PBTs returned "positive" results for alcohol in defendant's

bloodstream.

      Notwithstanding the absence of any numerical reading from

an alcohol screening test in the evidence before us, the State

cites State v. Rogers, 124 N.C. App. 364, 370, 477 S.E.2d 221,

224 (1996), for support.          In Rogers, the trial court admitted

the numerical reading of an Alco-sensor test, in accordance with

N.C. Gen. Stat. § 20-16.3 (1995), to help establish whether the

arresting officer had probable cause for the defendant's driving

impaired.   124 N.C. App. at 370, 477 S.E.2d at 224.                   However,

the pertinent language of N.C. Gen. Stat. § 20-16.3 that allowed

the   arresting    officer   in   Rogers     to   consider    the   numerical

reading of the Alco-sensor test was supplanted in 2006 by the

current version of the statute.        2006 N.C. Sess. Laws ch. 253, §

7.    The plain language of N.C. Gen. Stat. § 20-16.3(d) (2013)

prohibits   "the    actual   alcohol       concentration     result"    of   an

"alcohol screening test" from being used "by a law-enforcement

officer . . . in determining if there are reasonable grounds for

believing . . . [t]hat the driver has committed an implied-

consent offense under G.S. 20-16.2[,]" such as driving while

impaired.

      Moreover, in light of the absence of any numerical reading

in the evidentiary record before us, the State's argument would
                                          -25-
effectively allow law enforcement to evade review when arresting

individuals       for      impaired      driving     after   conducting     alcohol

screening tests.           This argument, therefore, is wholly without

merit.

                                  Motion to Dismiss

      We lastly address the issue whether the trial court erred

in dismissing the charges against defendant.                      We note that the

State, in support of its position, merely repeats its arguments

that the trial court erred in concluding that Officer Lalumiere

lacked probable cause to arrest defendant.                   The State does not,

however,     cite    any    authority      suggesting     that    the   trial    court

erred in dismissing the charges.

      However, pursuant to her ethical duty of candor to this

Court, defendant's appellate counsel properly referred the Court

to   State   v.     Joe,    365   N.C.    538,     723   S.E.2d   339   (2012)    (per

curiam).      In Joe, the Supreme Court reversed this Court for

affirming a trial court's dismissal of the State's charge of

felony possession of cocaine with intent to sell or deliver

because the defendant made no written or oral motion to dismiss

that charge.        Id. at 539, 723 S.E.2d at 340.                 Here, defendant

made no written or oral motion to dismiss the charges, and,

therefore, we must reverse the trial court's dismissal.


      Affirmed in part; reversed and remanded in part.
                          -26-
Judge STEELMAN concurs.

Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

to 6 September 2014.
