                                    NO. COA13-1382

                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 15 July 2014


STATE OF NORTH CAROLINA


      v.                                      New Hanover County
                                              No. 12CRS003101
STEPHEN ANTHONY GRANGER,
     Defendant.


      Appeal by Defendant from judgments entered 22 August 2013

by   Judge    William     R.   Pittman   in   New   Hanover     County    Superior

Court.     Heard in the Court of Appeals on 24 April 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Joseph L. Hyde, for the State.

      Kerri L. Sigler, for Defendant-appellant.


      DILLON, Judge.


      Stephen      Anthony     Granger   (“Defendant”)        appeals    from    the

judgment entered for driving while impaired following the denial

of his motion to suppress.           For the foregoing reasons, we affirm

the trial court’s order denying Defendant’s motion to suppress.

                                  I. Background

      In the early morning hours of 1 May 2012, Defendant was

involved in a motor vehicle accident in Wilmington where the

vehicle      he   was   operating    rear-ended     another    vehicle.         As   a
                                       -2-
result   of   the    accident,    he   was     charged    with     driving      while

impaired (“DWI”) and failure to reduce speed.

      On 25 June 2013, Defendant filed in the superior court1 a

motion to suppress the results from the test of his blood which

was drawn shortly after the accident, arguing inter alia that

his   Sixth   Amendment       right    to    confront     witnesses     had        been

violated by the State’s failure to prove the chain of custody of

his blood sample.       On 22 July 2013, Defendant filed a motion to

dismiss,    arguing    that     his   Fourth    Amendment     rights    had        been

violated because the blood draw was performed without a warrant.

      On 21 August 2013, Defendant’s motions were argued before

the trial court.       Evidence presented by the State tended to show

the following:        On 1 May 2012, Officer Eric Lippert with the

Wilmington    Police    Department      responded        to   a   report      of     an

accident occurring around 2:19 a.m.                When he arrived at the

scene,     Officer    Lippert     observed     Defendant      sitting      in       the

driver’s seat alone in his vehicle and Defendant’s vehicle had

rear-ended a truck towing an enclosed trailer.                    Officer Lippert

approached Defendant’s vehicle and noticed that Defendant was

“in some level of pain, discomfort[,]” and had “a moderate odor



1
  This matter was originally brought in district court where
Defendant was convicted of DWI.      Defendant appealed that
conviction to superior court.
                                     -3-
of an alcoholic beverage coming from his person.”             Defendant was

subsequently transported to New Hanover Regional Medical Center

by EMS, without Officer Lippert performing any sobriety checks

on Defendant.

     Officer    Lippert   also    traveled   to   the   hospital   where   he

spoke with Defendant.       During this encounter, Officer Lippert

noticed that Defendant had “bloodshot and glassy eyes[,]” and

Defendant kept interrupting him and telling him that “I’ve been

drinking[.]”     Defendant admitted to Officer Lippert that he had

taken “three shots” between 10 p.m. and 11 p.m. and his last

shot was 20 minutes before the accident or approximately 2 a.m.

While Defendant was lying in his hospital bed, Officer Lippert

gave Defendant two Alcosensor portable breath tests, one at 3:04

a.m. and the other at 3:09 a.m.; both tests were positive for

alcohol.     Because of Defendant’s condition, Officer Lippert was

limited in the type of field sobriety tests he could perform.

He   administered   the   horizontal       gaze   nystagmus   test,   which

Defendant did not pass.          He also administered an alphabet test

and a counting test, which Defendant passed.

     Based on his investigation, Officer Lippert determined that

he had sufficient probable cause to obtain a blood sample from

Defendant.      At 3:10 a.m., Officer Lippert read Defendant his
                                        -4-
implied    consent     rights     and    waited    for     a   nurse      to     draw

Defendant’s blood for analysis.               At 3:50 a.m., a nurse became

available, and Officer Lippert made a request to Defendant for a

blood   draw;   however,   Defendant       refused   to    give   his     consent.

Officer Lippert testified that he did not get a warrant for the

blood draw because, inter alia, he was by himself with Defendant

and would have to get another officer to watch Defendant while

he drove to the county jail to get the warrant, about 20 minutes

away; he was concerned about the dissipation of the alcohol from

Defendant’s blood stream, as it had been over an hour since the

accident; and he had to get the blood evidence soon as he could

not get an accurate blood sample if Defendant were given any

medications for his pain or injuries.                At 3:51 a.m., Officer

Lippert instructed the nurse to draw Defendant’s blood.                        A test

of this blood sampled revealed an alcohol concentration of 0.15,

in excess of the legal limit.

    Following        testimony,    Defendant      argued       that     there     was

insufficient exigent circumstances to justify the warrantless

seizure of the blood evidence.           The superior court ruled in open

court   that    Defendant’s     Fourth   Amendment       rights   had    not     been

violated   because     there    was     sufficient   exigent      circumstances
                                       -5-
present, but stated specifically that it was not ruling on the

Sixth Amendment “chain of custody” issue.

    On 22 August 2013,            the superior        court issued a written

order, with findings of fact and conclusions of law, denying

“defendant’s    motion    to   suppress”      after    concluding      that   there

were sufficient exigent circumstances to justify the warrantless

blood draw.     On the same day, after preserving his right to

appeal the superior court’s denial of his motion to suppress,

Defendant pled guilty to DWI.              As a condition of the plea, the

State dismissed the charge of failure to reduce speed.                          The

superior   court    sentenced      Defendant     to    a   term   of   12     months

imprisonment;    this     sentence    was     suspended    and    Defendant     was

placed on supervised probation for 18 months.                     The Court also

ordered Defendant to complete 48 hours of community service and

“not to drive until licensed to do so.”                    On 22 August 2013,

Defendant filed written notice of appeal from this judgment.

                                  II. Argument

    In his only issue on appeal, Defendant contends that the

trial court erred in denying his motion to suppress certain

blood   evidence        because    there       were    insufficient         exigent

circumstances      to   support      the     warrantless     seizure     of    that

evidence in violation of his Fourth Amendment rights.
                                         -6-
                                A. Preliminary Manner

    The State, citing State v. Golden, 96 N.C. App. 249, 385

S.E.2d 346 (1989), argues that Defendant waived his right to

argue a violation of his Fourth Amendment rights.                      Specifically,

the State contends that none of Defendant’s attempts in superior

court to challenge the admission of the blood test based on

Fourth Amendment grounds followed N.C. Gen. Stat. § 15A-977(a)

(2012),      which    requires,    in    part,      that   (1)   the    “motion   to

suppress . . . be in writing[,]” (2) it “state the grounds upon

which   it    is     made[,]”    and    (3)    it   “be    accompanied     with   an

affidavit containing facts supporting the motion.”                         Id.    We

disagree.

    Specifically, the State argues that Defendant’s oral motion

to suppress made at the hearing based on the Fourth Amendment

was not sufficient to preserve Defendant’s appeal since this

motion did not meet the requirement that it be “in writing.”

Further, the State argues that Defendant’s written motion to

suppress     was     not   sufficient    to    preserve     Defendant’s     appeal,

since the only ground stated in that motion is based on the

Sixth Amendment (chain of custody/confrontation of witnesses)

and not the Fourth Amendment (exigent circumstances).                      Finally,

the State argues that Defendant’s written motion to dismiss was
                                       -7-
not sufficient to preserve Defendant’s appeal because – though

that motion stated the Fourth Amendment as the ground for the

challenge - it was not accompanied by the required “affidavit

containing facts supporting the motion.”                 See id.

       We believe that Defendant did satisfy the requirements of

N.C.   Gen.   Stat.    §   15A-977(a).        Specifically,            as       the   State

concedes, Defendant’s motion to dismiss                   –    which is based on

Fourth   Amendment     grounds    -   may     be   treated       as        a    motion   to

suppress,     pursuant     to   our   decision      in    Golden,          supra.        We

recognize that, though the motion to dismiss sets forth factual

allegations to support the motion, the motion was unverified.

However,    Defendant’s     motion    to     suppress         based    on       his   Sixth

Amendment challenge was verified2 and contains substantially the

same   factual   allegations      that      are    contained          in       Defendant’s

unverified motion to dismiss.            Since the factual allegations in

the motion to suppress are verified and since these allegations

are    sufficient     to   support     Defendant’s            motion       to    dismiss,

Defendant has satisfied the minimum requirements for a motion to

suppress pursuant to N.C. Gen. Stat. § 15A-977(a).                         Accordingly,




2
  Although not initially included in the record on appeal,
Defendant made a motion with this Court to amend the record on
appeal to include the verification of his motion to suppress.
We grant this motion.
                                              -8-
we turn to address Defendant’s substantive arguments regarding

the denial of his motion to suppress and exigent circumstances.

             B. Motion to Suppress-Exigent Circumstances

                                 1. Standard of Review

      This   Court’s        review      of   an     appeal    from     the    denial   of    a

defendant’s     motion        to     suppress        is     limited      to    determining

“whether competent evidence supports the trial court’s findings

of fact and whether the findings of fact support the conclusions

of law.”     State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874,

878   (2011).        When    a    defendant         fails    to   challenge      the   trial

court’s findings of fact,

             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.

Id. at 168, 712 S.E.2d at 878 (citations and quotation marks

omitted).       On    appeal,      Defendant         challenges        only   portions      of

finding of fact 41.              Therefore, the remaining findings of fact

are   binding   to     us    on    appeal      and       deemed   to    be    supported     by

competent    evidence.            See   id.         We   first    turn   to    Defendant’s

challenges to the trial court’s finding of fact 41, arguing that
                                   -9-
subsections (a) and (c) of this finding are not supported by

competent evidence in the record.

                2. The trial court’s finding of fact 41

       Finding of fact 41(a) states

           (a) The first exigent circumstance was the
           fact that defendant’s percentage alcohol
           [sic] in the his [sic] blood was dissipating
           and had been for approximately 1 hour and 32
           minutes, from the time of the accident until
           the time the defendant refused a consensual
           blood draw.   Such dissipation destroys the
           vital evidence in the case.    An additional
           40 plus minute delay by traveling to the New
           Hanover County Jail to seek a magistrate’s
           signature on a search warrant would allow
           further dissipation of alcohol and further
           evidence to be destroyed.

       First, Defendant contends that it was not 1 hour and 32

minutes from the accident until he refused a consensual blood

draw, as the trial court found, but 1 hour and 32 minutes from

the accident until when his blood was actually drawn.            Defendant

also   argues   that   Officer   Lippert   arrived   at   2:50   a.m.   and

“wasted” 20 minutes performing field sobriety tests on Defendant

and then “wasted” another 40 minutes between Defendant’s refusal

and the blood draw, enough time for him to obtain the search

warrant and he “simply refused to do so.”            We find Defendant’s

arguments unpersuasive.
                                       -10-
    It appears that Defendant is challenging the first and last

sentences of this finding.             As to the first sentence, Officer

Lippert    testified     that    the   accident    occurred       at   2:19   a.m.

Officer Lippert further testified that at 3:50 a.m., when a

nurse     finally   became      available     to   perform    a    blood      draw,

Defendant refused to give his consent to the draw.                     One minute

later, the nurse drew Defendant’s blood at 3:51 a.m.                   We do not

believe that Officer Lippert “waste[d]” 40 minutes, as Defendant

argues, from 3:10 until 3:50 a.m., but he was waiting for a

nurse.      Therefore,    this     finding    is   supported      by    competent

evidence in the record.           Defendant’s argument may be based on

the implied consent rights form which shows 3:10 a.m. as the

time that Defendant refused, but Officer Lippert clarified in

his testimony that he gave the form to Defendant at 3:10 a.m.

but it was not until a nurse arrived at 3:50 a.m. that Defendant

refused to give his consent.

    As to the last sentence in this finding, Officer Lippert

testified that it would have taken 15 or 20 minutes to drive to

the county jail to see a magistrate and get a warrant and it

would take him some amount of time to fill out the proper search

warrant form and did not know how long the process would take.
                                                 -11-
Therefore, the trial court’s finding that there would have been

a “40 plus minute delay” is supported by competent evidence.

      We    also          find     Defendant’s         argument      that      Officer     Lippert

“wasted”        20    minutes        doing   field       sobriety         tests    unpersuasive

because it is well understood that Officer Lippert would have to

have probable cause in order to obtain the contested blood draw

evidence.            See U.S. Const. Amend. IV.                      Those sobriety tests

would      be        in     furtherance      of        establishing         probable         cause.

Therefore, Defendant’s arguments are overruled.

      As to finding of fact 41(c), Defendant contends Officer

Lippert’s testimony regarding Defendant needing pain medication

was   “purely             hypothetical,”         and    there       was   no      evidence      that

Defendant needed or was given any pain medication that would

interfere with him getting a blood sample.                                  We likewise find

these arguments to be without merit.

      Officer Lippert testified that when he arrived on the scene

of the accident Defendant appeared to be “in some level of pain

[and]   discomfort[],”               he    was    taken       out    of     his    vehicle       and

transported           to     the    hospital       on     a   backboard,          and,     at    the

hospital,        Defendant           complained         of    foot,       ankle,        knee,   and

shoulder        pain.         Officer      Lippert       testified        that     he    had    seen

accident        victims          receive     pain        medication         before       and     was
                                      -12-
concerned that pain medication would prevent him from getting an

accurate blood test.         He further stated that he would not stop

or interfere with a person’s medical treatment.                        We are not

persuaded   by    Defendant’s    argument        that   no   evidence     supports

finding of fact 41(c) and that Officer Lippert’s concerns were

merely “hypothetical[.]”         Rather, there was competent evidence

in the record to support the trial court’s finding of fact 41(c)

and   Defendant’s    arguments    are      overruled.         We   next   turn   to

Defendant’s challenges to the trial court’s conclusions of law.

             3.     The trial court’s conclusions of law

      Defendant contends that the trial court’s findings of fact

do not support its conclusion of law that sufficient exigent

circumstances existed to justify the warrantless collection of

his blood sample.        Defendant contends that the trial court’s

findings of fact do not show that Officer Lippert “faced an

emergency that justified action without a warrant” as required

by Missouri v. McNeely, ___ U.S. ___, 185 L. Ed. 2d 696 (2013),

for sufficient exigent circumstances.              Defendant concludes that

the denial of his motion to suppress should be reversed, the

evidence suppressed, and his charges dismissed.

      Our Supreme Court has stated that “[t]he withdrawal of a

blood   sample    from   a   person   is     a   search      subject    to   fourth
                                     -13-
amendment protection.”        State v. Welch, 316 N.C. 578, 585, 342

S.E.2d 789, 793 (1986) (citation omitted).          Therefore, “a search

warrant must be procured before a suspect may be required to

submit to such a procedure unless probable cause and exigent

circumstances exist that would justify a warrantless search.”

Id.    Defendant raises no argument regarding probable cause for

the warrantless blood draw.          Thusly, our review is limited to

whether there were sufficient exigent circumstances.

       The United States Supreme Court recently held in Missouri

v. McNeely, supra, that the natural dissipation of alcohol in

the bloodstream, standing alone, cannot create an exigency in a

case    of    alleged     impaired   driving   sufficient      to   justify

conducting a blood test without a warrant.          The inquiry into an

exigency is fact-specific and “demands that we evaluate each

case    of    alleged     exigency   based   ‘on   its   own    facts   and

circumstances.’”        McNeely, ___ U.S. at ___, 185 L. Ed. 2d at 705

(citation omitted).        It stated that in DWI-type investigations,

“where police officers can reasonably obtain a warrant before a

blood sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they

do so.”      Id. at ___, 185 L. Ed. 2d at 707.       By way of example,

the Court stated that there may be “a situation in which the
                                           -14-
warrant process will not significantly increase the delay before

the blood test is conducted because an officer can take steps to

secure a warrant while the suspect is being transported to a

medical facility by another officer.”                 Id. at ___, 185 L. Ed. 2d

at 708.     But the Court also recognized that “some circumstances

will     make   obtaining       a    warrant      impractical     such    that     the

dissipation     of   alcohol        from   the    bloodstream     will   support    an

exigency    justifying      a       properly      conducted     warrantless      blood

test.”     Id. at ___, 185 L. Ed. 2d at 707.                     The Court stated

that,     for    example,       “exigent          circumstances     justifying       a

warrantless blood sample may arise in the regular course of law

enforcement due to delays from the warrant application process.”

Id. at ___, 185 L. Ed. 2d at 709.                  The Court, in affirming the

lower court’s ruling, concluded that

            [i]n short, while the natural dissipation of
            alcohol in the blood may support a finding
            of exigency in a specific case, . . . it
            does not do so categorically. Whether a
            warrantless blood test of a drunk-driving
            suspect is reasonable must be determined
            case by case based on the totality of the
            circumstances.

Id.

       In State v. Dahlquist, ___ N.C. App. ___, 750 S.E.2d 580

(2013), appeal dismissed and disc. review denied, ___ N.C. ___,

___ S.E.2d ___, 2014 N.C. LEXIS 203 (N.C., 2014), we addressed
                                          -15-
the   effect    of   the    U.S.       Supreme       Court’s       holding    in   McNeely,

supra,     stating      that     “the    question          for     this    Court   remains

whether,      considering       the     totality      of     the       circumstances,    the

facts    of   this   case       gave    rise    to    an     exigency       sufficient    to

justify a warrantless search.”                 Id. at ___, 750 S.E.2d at 583.

      In the present case, we conclude that the trial court’s

findings      support    its      conclusion         that        the    totality   of    the

circumstances showed that exigent circumstances justified the

warrantless blood draw.                 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[.]”                         See McNeely, ___ U.S.

at ___, 185 L. Ed. 2d at 709.                   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 example in

McNeely, ___ U.S. at ___, 185 L. Ed. 2d at 708, Officer Lippert
                                          -16-
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.        See Dahlquist, ___ N.C. App. at ___, 750 S.E.2d at

583 (holding that there were sufficient exigent circumstances

justifying the warrantless blood draw in part because of the

officer’s knowledge of the travel time and delays as a result of

the warrant application process).                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.3



3
     We note that a defendant can be guilty of impaired driving
under N.C. Gen. Stat. § 20-138.1 not only for having “consumed
sufficient alcohol” but also for being “under the influence of
                                 -17-
    For   the   foregoing   reasons,    we   affirm   the   trial   court’s

denial of Defendant’s motion to suppress.

    AFFIRMED

    Judge STROUD and Judge HUNTER, JR. concur.




an impairing substance” or with “any amount of a Schedule I
controlled substance, as listed in G.S. 90-89, or its
metabolites in his blood or urine.”          A blood test for
Defendant’s blood alcohol content could also presumably reveal
if he was also under the influence of another “impairing
substance” or “Schedule I controlled substance[.]”
