{
  "id": 4167523,
  "name": "STATE OF NORTH CAROLINA v. BARRY SCOTT VIA",
  "name_abbreviation": "State v. Via",
  "decision_date": "2009-06-02",
  "docket_number": "No. COA08-1147",
  "first_page": "398",
  "last_page": "400",
  "citations": [
    {
      "type": "official",
      "cite": "197 N.C. App. 398"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T21:19:41.072184+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges WYNN and ERVIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BARRY SCOTT VIA"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nBarry Scott Via (\u201cdefendant\u201d) appeals from the order of the superior court denying his motion to dismiss the State\u2019s appeal, made pursuant to N.C.G.S. \u00a7 20-38.7(a), and to declare N.C.G.S. \u00a7\u00a7 20-38.6(f) and 20-38.7 unconstitutional. We affirm.\nDefendant was charged with operating a motor vehicle without decreasing speed as necessary to avoid a collision, possessing an open container of alcohol in the passenger area of a vehicle while operating the vehicle, and driving while impaired. When the matter came on for hearing in Nash County District Court, defendant filed a pretrial motion to dismiss. Pursuant to N.C.G.S. \u00a7 20-38.6, the district court preliminarily ruled the motion to dismiss should be allowed. The State appealed the district court\u2019s preliminary determination to superior court, where defendant then filed a motion to dismiss the State\u2019s appeal and to declare N.C.G.S. \u00a7\u00a7 20-38.6(f) and 20-38.7 unconstitutional. The superior court entered an order denying defendant\u2019s motion. Defendant gave notice of appeal, after which the superior court certified this matter as appropriately justiciable in the appellate division pursuant to N.C.G.S. \u00a7 15A-1432. Additionally, defendant filed a petition for writ of certiorari in this Court.\nN.C.G.S. \u00a7 15A-1432(d) provides a method by which a defendant may appeal the ruling of a superior court which \u201cfinds that a judgment, ruling, or order dismissing criminal charges in the district court was in error.\u201d N.C. Gen. Stat. \u00a7 15A-1432(d) (2007) (emphasis added). In the case at bar, the district court did not dismiss criminal charges, but rather made a preliminary determination, pursuant to N.C.G.S. \u00a7 20-38.6(f), that it would grant defendant\u2019s pretrial motion to dismiss. The superior court did not rule on the merits of the district court\u2019s preliminary determination, but instead merely denied defendant\u2019s motion to dismiss the State\u2019s appeal and declare N.C.G.S. \u00a7\u00a7 20-38.6(f) and 20-38.7 unconstitutional. As such, N.C.G.S. \u00a7 15A-1432 does not provide defendant a statutory right of appeal from the superior court\u2019s ruling in this case and we must dismiss defendant\u2019s appeal.\nHowever, this Court may issue a writ of certiorari \u201cwhen no right of appeal from an interlocutory order exists.\u201d N.C.R. App. P 21(a)(1). Having determined that defendant has no statutory right of appeal from the superior court\u2019s order, we exercise our discretion to grant the State\u2019s petition for writ of certiorari.\nDefendant\u2019s assignments of error and arguments in this appeal are essentially identical to those raised by the defendant in State v. Fowler, 197 N.C. App. -, - S.E.2d - (2009). For the reasons stated in that opinion, we reject defendant\u2019s arguments in this case. The order denying defendant\u2019s motion is affirmed and this case is remanded to the superior court for review of the district court\u2019s preliminary determination that it would grant defendant\u2019s pretrial motion to dismiss made in accordance with N.C.G.S. \u00a7-20-38.6(a).\nAffirmed.\nJudges WYNN and ERVIN concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Sebastian Kielmanovich, Assistant Attorney General, for the State.",
      "Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson, and Fanney & Jackson, PC., by John K. Fanney, for defendant-appellant.",
      "Center for Death Penalty Litigation, by Thomas K. Maher, and The Ward Law Firm, P.A., by David J. Ward, for North Carolina Advocates for Justice, amicus curiae."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BARRY SCOTT VIA\nNo. COA08-1147\n(Filed 2 June 2009)\n1. Appeal and Error\u2014 motion to dismiss in superior court\u2014 review of district court preliminary determination\nDefendant did not have a statutory right to appeal from superior court, but certiorari was granted, where the superior court denied defendant\u2019s motion to dismiss the State\u2019s appeal from a district court preliminary determination that it would dismiss impaired driving charges. While N.C.G.S. \u00a7 15A-1432(d) provides a method by which a defendant may appeal the ruling of a superior court finding that a judgment, ruling or order dismissing criminal charges in district court was in error, the district court here did not dismiss the charges.\n2. Criminal Law\u2014 appeal by State to Superior Court \u2014 motion to dismiss \u2014 review of preliminary determination\nThe Court of Appeals affirmed a superior court order denying defendant\u2019s motion to dismiss a prosecution after the State\u2019s appeal from a preliminary district court determination that it would grant a dismissal for defendant. The matter was remanded to superior court for review of the district court\u2019s preliminary determination.\nAppeal by defendant from order entered 21 May 2008 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 9 March 2009.\nRoy Cooper, Attorney General, by Sebastian Kielmanovich, Assistant Attorney General, for the State.\nWyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson, and Fanney & Jackson, PC., by John K. Fanney, for defendant-appellant.\nCenter for Death Penalty Litigation, by Thomas K. Maher, and The Ward Law Firm, P.A., by David J. Ward, for North Carolina Advocates for Justice, amicus curiae."
  },
  "file_name": "0398-01",
  "first_page_order": 428,
  "last_page_order": 430
}