{ "id": 12175658, "name": "STATE OF NORTH CAROLINA v. BRUCE ALLEN TOWNSEND, JR., Defendant", "name_abbreviation": "State v. Townsend", "decision_date": "2014-09-16", "docket_number": "No. COA14-129", "first_page": "456", "last_page": "472", "citations": [ { "type": "official", "cite": "236 N.C. App. 456" } ], "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": [ { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/us/443/0047-01" ] }, { "cite": "612 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632813 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "342", "parenthetical": "citation omitted" }, { "page": "342", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0336-01" ] }, { "cite": "662 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641411 ], "weight": 7, "year": 2008, "pin_cites": [ { "page": "686-87", "parenthetical": "citations and quotations omitted" }, { "page": "690", "parenthetical": "\"Both the United States Supreme Court as well as our Courts have suggested that license and registration checkpoints advance an important purpose [.]\" (citation and quotation omitted)" }, { "page": "690", "parenthetical": "citations and quotations omitted" }, { "parenthetical": "citation omitted" }, { "page": "690-91", "parenthetical": "citations omitted" }, { "page": "691", "parenthetical": "citations omitted" }, { "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0683-01" ] }, { "cite": "626 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635191 ], "year": 2006, "pin_cites": [ { "page": "658", "parenthetical": "\"The results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a driver has committed an implied-consent offense[.]\" (citations and quotation omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0655-01" ] }, { "cite": "626 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635152 ], "year": 2006, "pin_cites": [ { "page": "293", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0289-01" ] }, { "cite": "627 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635397 ], "year": 2006, "pin_cites": [ { "page": "512", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0510-01" ] }, { "cite": "654 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640072 ], "weight": 7, "year": 2008, "pin_cites": [ { "page": "744", "parenthetical": "citation omitted" }, { "page": "741" }, { "page": "741-42" }, { "page": "742" }, { "page": "744-45" }, { "page": "745" }, { "page": "745", "parenthetical": "holding that even though the magistrate committed a technical statutory violation by failing to make findings of fact regarding a secured bond, the defendant was unable to show how such a violation prejudiced her" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0740-01" ] }, { "cite": "755 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2014, "pin_cites": [ { "page": "420", "parenthetical": "finding the first Brown factor was met where an officer stopped the defendant at a checkpoint and noticed the defendant had red, bloodshot eyes, emitted an odor of alcohol, and admitted to drinking that evening" }, { "page": "421", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "692 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "424-25", "parenthetical": "citation omitted" }, { "page": "425", "parenthetical": "citation and quotation omitted" }, { "page": "425" }, { "page": "425" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176030 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "679", "parenthetical": "citation omitted" }, { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0675-01" ] }, { "cite": "170 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005095 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "293", "parenthetical": "citation omitted" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0284-01" ] }, { "cite": "191 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159195 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "185-86", "parenthetical": "citations and quotations omitted" }, { "page": "191" }, { "page": "191" }, { "page": "192-93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0181-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "252", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "year": 1985, "pin_cites": [ { "page": "243-44", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2013, "pin_cites": [ { "parenthetical": "\"The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result. .. is admissible in a court[.]\"" } ], "opinion_index": 0 }, { "cite": "502 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465358 ], "year": 1998, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0079-01" ] }, { "cite": "582 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "53", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188497 ], "year": 2003, "pin_cites": [ { "page": "555", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0544-01" ] }, { "cite": "176 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300839 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "109", "parenthetical": "\"The results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a driver has committed an implied-consent offense[.]\" (citations and quotation omitted)" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0104-01" ] }, { "cite": "477 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889477 ], "year": 1996, "pin_cites": [ { "page": "369-70" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0364-01" ] }, { "cite": "533 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "264", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495731 ], "year": 2000, "pin_cites": [ { "page": "36-37", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0033-01" ] }, { "cite": "360 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797218 ], "year": 2006, "pin_cites": [ { "page": "339", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0333-01" ] }, { "cite": "177 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300927 ], "year": 2006, "pin_cites": [ { "page": "83", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0082-01" ] }, { "cite": "188 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156151 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "126", "parenthetical": "citation omitted" }, { "page": "127-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0120-01" ] }, { "cite": "297 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "548", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "143", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "369 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "559", "parenthetical": "\"Upon a defendant's arrest for DWI, the magistrate is obligated to inform him of the charges against him, of his right to communicate with counsel and friends, and of the general circumstances under which he may secure his release.\" (citation omitted)" }, { "page": "564" }, { "page": "564" } ], "opinion_index": 0 }, { "cite": "322 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515688 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "536" }, { "page": "544-45" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0535-01" ] }, { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "50" }, { "page": "361" }, { "page": "2640" } ], "opinion_index": 0, "case_paths": [ "/us/443/0047-01" ] } ], "analysis": { "cardinality": 1212, "char_count": 37203, "ocr_confidence": 0.737, "pagerank": { "raw": 8.041333715112996e-08, "percentile": 0.4658958881386521 }, "sha256": "4bc2e27b79dfe2e7412ffdcf6a5bf9ce6bc3dda1aa59bebbf98c75b07f1d73d6", "simhash": "1:85e9f264764f91f7", "word_count": 5884 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BRUCE ALLEN TOWNSEND, JR., Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nDefendant\u2019s Knoll motion was properly dismissed where the magistrate followed N.C. Gen. Stat. \u00a7 15A-511(b) in informing defendant of his rights and in setting an option bond such that any technical statutory violation committed by the magistrate was not prejudicial to defendant. Where the State presented sufficient evidence such that a reasonable person could believe defendant committed the offense of driving while impaired, the trial court properly denied defendant\u2019s motion to suppress for lack of probable cause. A technical statutory violation committed by the trial court during a pre-trial hearing but not at trial did not result in error that would entitle defendant to a new trial. Where the trial court determined that a driving while impaired checkpoint was established for a legitimate primary purpose and that the Brown factors were met, defendant\u2019s motion to suppress evidence of the checkpoint was properly denied.\nOn 21 October 2010, defendant Bruce Allen Townsend, Jr., was arrested for driving while impaired. On 24 August 2011, defendant was convicted in Mecklenburg County District Court of driving while impaired and sentenced to thirty days imprisonment. The District Court suspended defendant\u2019s sentence and placed him on unsupervised probation for twelve months. Defendant was further ordered to obtain a substance abuse assessment, comply with recommended treatment, complete twenty-four hours of community service, and pay courts costs, a $100.00 fine, and a $250.00 community service fee.\nDefendant appealed to Superior Court, and on 30 August 2012, was tried before a jury during the criminal session of Mecklenburg County Superior Court, the Honorable Susan E. Bray, Judge presiding. At trial, the State\u2019s evidence tended to show the following.\nOn the evening of 21 October 2010, a checkpoint was established in the 7200 block of Providence Road in Charlotte by the Charlotte-Mecklenburg Police Department to check for impaired drivers and other vehicular infractions. At approximately 11:28 p.m., defendant drove up to the checkpoint where he encountered Officer Todd Davis. Officer Davis engaged defendant in conversation and noticed that defendant emitted an odor of alcohol and had red, bloodshot eyes. When asked by Officer Davis whether he had had anything to drink that evening, defendant responded that he had consumed several beers earlier. Officer Davis administered two alco-sensor tests to defendant; both tests were positive for alcohol.\nOfficer Davis then asked defendant to perform several field sobriety tests. Officer Davis testified that when he administered a horizontal gaze nystagmus test to defendant, he noticed three signs of intoxication. On a \u201cwalk and turn\u201d test, defendant exhibited two signs of intoxication, and on a \u201cone leg stand\u201d test, defendant showed one sign of intoxication. Officer Davis also requested that defendant recite the alphabet from J to V, which defendant did without incident. Officer Davis subsequently arrested defendant for driving while impaired.\nDefendant was taken to a Breath Alcohol Testing vehicle located at the checkpoint where he blew a 0.10 on his first test and a 0.09 on his second test. Officer Davis then drove defendant to the Mecklenburg County jail. Defendant was admitted to the jail at 12:56 a.m., appeared before the magistrate at 2:54 a.m., and was released to his wife\u2019s custody at 4:45 a.m.\nDefendant was convicted by a jury of driving while impaired and sentenced by the trial court to sixty days imprisonment. Defendant\u2019s sentence was suspended and he was placed on unsupervised probation for twenty-four months. Defendant was also ordered to pay court costs, a $100.00 fine, and a $250.00 community service fee; perform twenty-four hours of community service; surrender his driver\u2019s license to the clerk; not operate a motor vehicle until his license is restored; and to complete all treatments recommended by his alcohol assessment. Defendant appeals.\nOn appeal, defendant raises four issues as to whether the trial court: (I) erred in denying defendant\u2019s motion to dismiss pursuant to defendant\u2019s Knoll motion; (II) erred in denying defendant\u2019s motion to suppress for lack of probable cause; (III) abused its discretion in denying defendant\u2019s motion to redact evidence of the aleo-sensor test; and (IV) erred in denying defendant\u2019s motion to suppress evidence resulting from the checkpoint.\nI.\nKnoll Motion\nDefendant first argues that the trial court erred in denying his Knoll motion to dismiss. We disagree.\nA Knoll motion, based on State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988), alleges that a magistrate has failed to inform a defendant of the charges against him, his right to communicate with counsel, family, and friends, and of the general circumstances under which he may secure his release pursuant to N.C. Gen. Stat. \u00a7 15A-511. See N.C.G.S. \u00a7 15A-511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (\u201cUpon a defendant\u2019s arrest for DWI, the magistrate is obligated to inform him of the charges against him, of his right to communicate with counsel and friends, and of the general circumstances under which he may secure his release.\u201d (citation omitted)). If a defendant is denied these rights, the charges are subject to being dismissed. Knoll, 322 N.C. at 544-45, 369 S.E.2d at 564. \u201c[I]n those cases arising under N.C.G.S. \u00a7 20-138.1(a)(2), prejudice will not be assumed to accompany a violation of defendant\u2019s statutory rights, but rather, defendant must make a showing that he was prejudiced in order to gain relief.\u201d Id. at 545,369 S.E.2d at 564. On appeal, the standard of review is whether there is competent evidence to support the trial court\u2019s findings of fact and its conclusions of law. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982) (citation omitted). \u201cIf there is a conflict between the state\u2019s evidence and defendant\u2019s 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.\u201d Id. (citation omitted).\nDefendant raised his Knoll motion during his pre-trial hearing, contending he was denied his right to communicate with counsel and friends, and that this denial to have others observe him resulted in substantial prejudice.\nIn its order denying defendant\u2019s motion to dismiss pursuant to Knoll, the trial court made the following findings of fact:\n1. Officer Davis stopped [defendant] at a checkpoint on Providence Road at approximately 11:28pm on Thursday, October 21, 2010.\n2. Defendant submitted to portable breath tests and had a positive reading for alcohol.\n3. Officer Davis took Defendant to [the Blood Alcohol Testing] mobile unit for [an] intoxilyzer test. Defendant signed [a] rights [form] at 11:55pm, acknowledging his right to call an attorney or witness.\n4. Defendant blew 0.09 on Intox EC/IR-II.\n5. Defendant did not at any time call a witness or ask for a witness.\n6. Defendant did call his wife ... to let her know he had been arrested, [and] told her he or someone would call her later to come pick him up.\n7. Officer Davis transported Defendant to [the] Mecklenburg County Jail, where he was received at approximately 12:56 am on October 22, 2010.\n8. At the jail, Defendant had his property checked, was booked, saw the nurse, [and] was fingerprinted [and] photographed.\n9. Officer Davis submitted his arrest paper work and charging affidavit to the magistrate.\n10. Defendant signed [an] implied consent offense notice (AOC-CR-271) in front of [the] magistrate at 2:34am, giving his [wife\u2019s] name and phone number as a contact person.\n11. [The] [magistrate had [Officer Davis\u2019s] information about the charge, BAC results, information from Defendant about address, length of employment, etc. and set conditions of release. Those conditions were a $1000 secured bond or a $1000 unsecured release to a sober responsible adult with ID or any terms or conditions of pretrial services if accepted by the program.\n12. Some official from the jail called [defendant\u2019s wife] to inform her that she could, come pick up Defendant. She left her home around 3am and arrived at the jail around 3:15 or 3:20am to pick up Defendant.\n13. [Defendant\u2019s wife] waited for about 20 minutes in the wrong area of the jail, then went to another area, spoke with appropriate personnel around 3:52am, [and] signed Defendant out at 4:21am (after jailers verified he had no outstanding criminal warrants, was medically cleared, retrieved his property, etc.).\nThe trial court then made the following conclusions of law:\nIn accordance with NCGS 15A-534(a), a judicial official, in determining conditions of pretrial release, must impose [at least] one of the following conditions:\n1. Release the defendant on his written promise to appear.\n2. Release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official.\n3. Place the defendant in the custody of a designated person or organization agreeing to supervise him.\n4. Require the execution of an appearance bond in a specified amount secured by a cash deposit in the full amount of the bond, by a mortgage pursuant to NCGS 58-74-5, or by at least one solvent surety.\nFurther, in accordance with NCGS 15A[-]534(b), the judicial official, in granting pretrial release, must impose condition (1), (2) or (3) in subsection (a) above unless he determines that such release will not reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. Upon making the determination, the judicial official must then impose condition (4) in subsection (a) above instead of condition (1), (2), or (3) and must record the reasons for doing so in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge pursuant to NCGS 15A-535(a).\nIn this matter, the magistrate\u2019s terms and conditions of release for [defendant] included a combination of conditions (2) and (3), an unsecured bond and release to a sober responsible adult with ID, that person being [defendant\u2019s wife]. Defendant never asked for witnesses; in fact [defendant] only asked his wife to come pick him up.\nNorth Carolina General Statutes, section 15A-534, provides that:\nIn determining which conditions of release to impose, the judicial official must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant\u2019s family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to. the issue of pretrial release.\nN.C. Gen. Stat. \u00a7 15A-534(c) (2013). \u201cIf the provisions of the ... pretrial release statutes are not complied with by the magistrate, and the defendant can show irreparable prejudice directly resulting from [this noncompliance], the DWI charge must be dismissed.\u201d State v. Labinski, 188 N.C. App. 120, 126, 654 S.E.2d 740, 744 (2008) (citation omitted).\nIn its findings of fact and conclusions of law, the trial court noted that defendant had the opportunity to contact counsel and friends to observe him. A review of the record shows that defendant had several opportunities to call counsel and friends to observe him and help him obtain an independent chemical analysis, but that defendant failed to do so. In fact, the record shows that defendant asked that his wife be called, but only for the purpose of telling her that he had been arrested. As such, defendant was not denied his rights pursuant to Knoll.\nDefendant further contends his rights were violated because the magistrate ordered defendant held under a $1,000.00 secured bond without justification and prior to meeting with him. Defendant cites State v. Labinski in support of his argument.\nIn Labinski, the defendant was arrested for driving while impaired. Id. at 122, 654 S.E.2d at 741. The defendant did not request that she be observed by witnesses, nor did she seek to have an independent chemical analysis conducted, even though her friends were at the detention center to help her. Id. at 122, 654 S.E.2d at 741-42. The magistrate gave the defendant a $500.00 secured bond without making any findings of fact as to why a secured bond was required. Id. at 122-23, 654 S.E.2d at 742. On appeal, this Court determined that the magistrate\u2019s failure to make findings as to why a secured bond was necessary amounted to a statutory violation. Id. at 126-27, 654 S.E.2d at 744-45. However, this Court affirmed the trial court, finding that despite the magistrate\u2019s commission of a statutory violation, the defendant failed to show how that violation was prejudicial to her. Id. at 127-28, 654 S.E.2d at 745.\nHere, the conditions of the release order did not, as defendant contends, strictly impose a $1,000.00 secured bond on him. Rather, as noted by the trial court in its findings of fact, the magistrate set an option bond that gave defendant a choice between paying a $1,000.00 secured bond or a $1,000.00 unsecured bond and being released to a sober, responsible adult; defendant was eventually released to his wife. Defendant now challenges the secured bond option, arguing that the magistrate was required to make written findings of fact as to the terms of defendant\u2019s option bond.\nPursuant to N.C. Gen. Stat. \u00a7 15A-534(a), a magistrate is not required to make written findings of fact when setting conditions of release unless the terms of defendant\u2019s release require a secured bond. N.C.G.S. \u00a7 15A-534(a) (2013). As such, although the magistrate was not required to make any written findings of facts in the option bond when imposing the condition of allowing defendant to pay an unsecured bond and be released to a sober, responsible adult, the magistrate was required to make written findings as to the option bond\u2019s other potential condition for release \u2014 a secured bond.\nHowever, even though the magistrate may have committed a technical statutory violation, defendant has failed to demonstrate how he was prejudiced as a result. Defendant was not released on a secured bond \u2014 he was instead released on an unsecured bond to the custody of his wife. Therefore, even had the magistrate been required to make findings of fact as to the secured bond option, no secured bond was imposed, and defendant cannot show prejudice. See Labinski, 188 N.C. App. at 127-28, 654 S.E.2d at 745 (holding that even though the magistrate committed a technical statutory violation by failing to make findings of fact regarding a secured bond, the defendant was unable to show how such a violation prejudiced her). Moreover, here, defendant was afforded his statutory right to pretrial release and his right to communicate with counsel and friends. Accordingly, defendant\u2019s argument is overruled.\nII.\nProbable Cause\nNext, defendant contends the trial court erred in denying defendant\u2019s motion to suppress for lack of probable cause. We disagree.\nWe note at the outset that defendant has not assigned error to the trial court\u2019s findings of fact, and those findings are therefore binding on appeal. In re S.N.H. & L.J.H., 177 N.C. App. 82, 83, 627 S.E.2d 510, 512 (2006) (citation omitted). Our review is thus limited to considering whether the trial court erred by concluding, as a matter of law, that there was probable cause to arrest defendant for driving while impaired. This Court reviews conclusions of law de novo. State v. Ripley, 360 N.C. 333, 339, 626 S.E.2d 289, 293 (2006) (citations omitted).\nProbable cause for an arrest is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. To justify a warrantless arrest, it is not necessary to show that the offense was actually committed, only that the officer had a reasonable ground to believe it was committed. The existence of such grounds is determined by the practical and factual considerations of everyday life on which reasonable and prudent people act. If there is no probable cause to arrest, evidence obtained as a result of that arrest and any evidence resulting from the defendant\u2019s having been placed in custody, should be suppressed.\nState v. Tappe, 139 N.C. App. 33, 36-37, 533 S.E.2d 262, 264 (2000) (citations and quotation omitted).\nDefendant argues the trial court erred in denying his motion to suppress for lack of probable cause because \u201cthere was no set of facts in the case at hand that would lead a reasonable, cautious person to believe that [defendant] was driving while impaired.\u201d Defendant\u2019s argument lacks merit, as the evidence supports the trial court\u2019s determination that Officer Davis had probable cause to arrest defendant.\nIn its order denying defendant\u2019s motion to suppress for lack of probable cause, the trial court noted that when Officer Davis stopped defendant at the checkpoint, he immediately noticed that defendant had \u201cbloodshot eyes and a moderate odor of alcohol about his breath.\u201d Defendant admitted to \u201cdrinking a couple of beers earlier\u201d and had \u201cstopped drinking about an hour\u201d prior to being stopped at the checkpoint. Two alco-sensor tests administered to defendant yielded positive results, and defendant exhibited clues indicating impairment on three field sobriety tests. Officer Davis determined that defendant was \u201cunder the influence of some impairing substance,\u201d regardless of the positive alco-sensor test results. The trial court further acknowledged Officer Davis\u2019 twenty-two years\u2019 experience as a police officer.\nDefendant argues that because he did not exhibit signs of intoxication such as slurred speech, glassy eyes, or physical instability, there was insufficient probable cause for Officer Davis to arrest defendant for driving while impaired. We are not persuaded; as this Court has held, the odor of alcohol on a defendant\u2019s breath, coupled with a positive alco-sensor result, is sufficient for probable cause to arrest a defendant for driving while impaired. See State v. Rogers, 124 N.C. App. 364, 369-70, 477 S.E.2d 221, 224 (1996); see also State v. Fuller, 176 N.C. App. 104, 109, 626 S.E.2d 655, 658 (2006) (\u201cThe results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a driver has committed an implied-consent offense[.]\u201d (citations and quotation omitted)).\nHere, Officer Davis noted that defendant had bloodshot eyes, emitted an odor of alcohol, exhibited clues as to intoxication on three field sobriety tests, and gave positive results on two alco-sensor tests. As such, there was sufficient probable cause for Officer Davis to arrest defendant for driving while impaired.\nIII.\nDefendant next argues that the trial court abused its discretion in denying his request to redact evidence of the alco-sensor test. Specifically, defendant contends the trial court\u2019s admission of the alco-sensor test\u2019s numerical results was an abuse of discretion, thus entitling him to a new trial. We disagree.\nOn appellate review, \u201c[a] trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.\u201d State v. Rasmussen, 158 N.C. App. 544, 555, 582 S.E.2d 44, 53 (2003) (citation omitted).\nAlthough the results of a defendant\u2019s alco-sensor test are not admissible as substantive evidence, State v. Bartlett, 130 N.C. App. 79, 82, 502 S.E.2d 53, 55 (1998), an officer who arrests a defendant for driving while impaired may testify that a defendant\u2019s alco-sensor test indicated the presence of alcohol. Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658.\nDefendant contends the trial court abused its discretion during the pre-trial hearing by allowing into evidence the numerical results of defendant\u2019s alco-sensor test. Dining the pre-trial hearing, the results of the alco-sensor test were offered to the trial court as part of Officer Davis\u2019s paperwork which was submitted to the magistrate; the paperwork was proffered by the State to show that Officer Davis had probable cause to arrest defendant for driving while impaired. Specifically, Officer Davis\u2019 arrest affidavit described how he encountered defendant, his observations of defendant, defendant\u2019s performance on the field sobriety tests, and the numerical results of defendant\u2019s alco-sensor test. This admission of the actual numerical results of defendant\u2019s alco-sensor test was error, as only \u201ca positive or negative result on an alcohol screen test\u201d may be admissible in court. See N.C. Gen. Stat. \u00a7 20-16.3 (2013) (\u201cThe fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result. .. is admissible in a court[.]\u201d).\nHowever, while we note the technical violation of the statute, we do not agree with defendant that this violation entitles him to a new trial. \u201cA mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law.\u201d State v. Blackstock, 314 N.C. 232, 243-44, 333 S.E.2d 245, 252 (1985) (citation omitted).\nHere, the numerical results of defendant\u2019s alco-sensor test were admitted into evidence only during the trial court\u2019s pre-trial hearing on defendant\u2019s motions to suppress and dismiss; the results were never introduced into evidence before the jury. Moreover, even without the results of the alco-sensor test, the State presented sufficient evidence, via the testimony of Officer Davis, to survive defendant\u2019s motion to dismiss for lack of probable cause. As such, despite committing a technical statutory violation by admitting the numerical results of defendant\u2019s alco-sensor test, the trial court did not err in denying defendant\u2019s motion to dismiss for lack of probable cause.\nFurther, when Officer Davis testified at trial before the jury as to the circumstances under which he encountered and eventually arrested defendant for driving while impaired, Officer Davis did not discuss defendant\u2019s alco-sensor test other than to state that defendant was administered a preliminary breath test along with field sobriety tests as part of Officer Davis\u2019 investigation. When asked at trial about how he came to form an opinion as to defendant\u2019s state of being on the evening of 21 October 2010, Officer Davis did not mention the alco-sensor test at all:\nBased on my conversation with [defendant], with the physical observations of [defendant] when I was talking to him at the car, based on [defendant\u2019s] standardized field sobriety tests, I did form th\u00e9 conclusion or the opinion that [defendant] had consumed a sufficient amount of some impairing substance so as to appreciably impair his mental and/or physical faculties.\nIndeed, despite defendant\u2019s contentions to the contrary, the actual numerical results of his alco-sensor test were never admitted into evidence at trial before the jury. Therefore, because this evidence was never admitted before the jury, it could not and did not cause defendant to receive an unfair verdict that would entitle him to a new trial. Defendant\u2019s argument is therefore overruled.\nTV.\nFinally, defendant contends the trial court erred in denying his motion to suppress evidence resulting from the checkpoint. We disagree.\nWhen considering a challenge to a checkpoint, the reviewing court must undertake a two-part inquiry to determine whether the checkpoint meets constitutional requirements. First, the court must determine the primary programmatic purpose of the checkpoint....\nSecond, if a court finds that police had a legitimate primary programmatic purpose for conducting a checkpoint . . . [the court] must judge its reasonableness, hence, its constitutionality, on the basis of the individual circumstances.\nState v. Veazey, 191 N.C. App. 181, 185-86, 662 S.E.2d 683, 686-87 (2008) (citations and quotations omitted).\nDefendant argues the trial court erred in denying his motion to suppress evidence resulting from the checkpoint because the checkpoint lacked an acceptable primary purpose and was, therefore, unconstitutional. In its order denying defendant\u2019s motion to suppress, the trial court made the following findings of fact:\nThe Court considered all evidence presented, as well as the arguments and contentions of counsel, and makes the following findings of fact by a preponderance of the evidence:\n1. The Charlotte Mecklenburg Police Department, under supervision of Sgt.- David Sloan, set up a DWI check point near [the] 7200 block of Providence Road between 11pm October 21, 2010 and 3am October 22, 2010.\n2. Sgt. Sloan chose the location because over 30 traffic fatalities had occurred in the vicinity since 2006, with about half of those involving impaired driving.\n3. The area is near the Arboretum Shopping Center, which houses several restaurants and other businesses which serve or sell alcohol.\n4. The check point was set up in compliance with NCGS 20-16.3A: there was a written plan; Sgt. Sloan briefed the 25 officers from 6 different agencies who were operating the checkpoint; eveiy vehicle was to be stopped and was stopped; signs notifying approaching motorists of a DWI check point ahead were placed approximately 200 yards from [the] check point; [and] non-impaired drivers were only delayed about 15 seconds each.\nThe trial court then concluded that the checkpoint was proper and denied defendant\u2019s motion to suppress.\nDefendant contends the trial court erred in denying his motion to suppress because the State failed to meet its burden of demonstrating the checkpoint was set-up for anything other than the improper purpose of general crime detection. Defendant\u2019s argument lacks merit, as during the pre-trial hearing on defendant\u2019s motion to suppress, the State presented testimony by Sergeant Sloan regarding the checkpoint. Sergeant Sloan testified that the checkpoint was administered according to a written plan, and that the date for the checkpoint had been selected almost a year prior to that date based on when the Blood Alcohol Testing mobile lab would be available. Sergeant Sloan further testified that the location of the checkpoint, in the 7200 block of Providence Road, was chosen because of the statistically high number of impaired driving offenses and fatalities that had occurred in the Providence Road and Highway 55 corridor. Further, Sergeant Sloan stated that the main purpose of the checkpoint was to check for DWIs.\nWe agree with the trial court\u2019s findings that the checkpoint was conducted for a legitimate primary purpose, as the record indicates the checkpoint was established, pursuant to N.C. Gen. Stat. \u00a7 20-16.3, to check all passing drivers for DWI violations. See N.C.G.S. \u00a7 20-16.3 (2013) (permitting law enforcement agencies to set-up DWI checkpoints provided such checkpoints are administered according to established, written plans, are well-marked for drivers, and detain all passing drivers only to the extent necessary to determine if reasonable suspicion exists that a driver has committed a DWI violation).\nDefendant further contends the trial court erred in denying his motion to suppress because the checkpoint was unreasonable and therefore unconstitutional. After finding a legitimate programmatic purpose, the trial court must determine whether the roadblock was reasonable and, thus, constitutional. \u201cTo determine whether a seizure at a checkpoint is reasonable requires a balancing of the public\u2019s interest and an individual\u2019s privacy interest.\u201d State v. Rose, 170 N.C. App. 284, 293, 612 S.E.2d 336, 342 (2005) (citation omitted). \u201cIn order to make this determination, this Court has required application of the three-prong test set out by the United States Supreme Court in Brown v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 361, 99 S. Ct. 2637, 2640 (1979).\u201d State v. Jarrett, 203 N.C. App. 675, 679, 692 S.E.2d 420, 424-25 (2010) (citation omitted). \u201cUnder Brown, the trial court must consider [1] the gravity of the public concerns served by the seizure[;] [2] the degree to which the seizure advances the public interest^] and [3] the severity of the interference with individual liberty.\u201d Id. at 679, 692 S.E.2d at 425 (citation and quotation omitted).\n\u201cThe first Brown factor \u2014 the gravity of the public concerns served by the seizure \u2014 analyzes the importance of the purpose of the checkpoint. This factor is addressed by first identifying the primary programmatic purpose ... and then assessing the importance of the particular stop to the public.\u201d Rose, 170 N.C. App. at 294, 612 S,E.2d at 342 (citation omitted).\nHere, the State presented evidence that the checkpoint was intended to screen all passing drivers for DWI violations. When Officer Davis stopped defendant at the checkpoint, Officer Davis noticed defendant had red, bloodshot eyes and emitted a \u201cmoderate odor of alcohol.\u201d When Officer Davis asked defendant if defendant had been drinking that evening, defendant responded that he had consumed several beers. Officer Davis then asked defendant to take an aleo-sensor test and perform several field sobriety tests. As such, the first Brown factor was met. See State v. Kostick, _ N.C. App. _, _, 755 S.E.2d 411, 420 (2014) (finding the first Brown factor was met where an officer stopped the defendant at a checkpoint and noticed the defendant had red, bloodshot eyes, emitted an odor of alcohol, and admitted to drinking that evening); Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690 (\u201cBoth the United States Supreme Court as well as our Courts have suggested that license and registration checkpoints advance an important purpose [.]\u201d (citation and quotation omitted)).\nThe second Brown prong examines \u201cthe degree to which the seizure advance[s] the public interest,\u201d and requires the trial court to determine whether \u201c[t]he police appropriately tailored their checkpoint stops to fit their primary purpose.\u201d Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690 (citations and quotations omitted).\nOur Court has previously identified a number of nonexclusive factors that courts should consider when determining whether a checkpoint is appropriately tailored, including: whether police spontaneously decided to set up the checkpoint on a whim; whether police offered any reason why a particular road or stretch of road was chosen for the checkpoint; whether the checkpoint had a predetermined starting or ending time; and whether police offered any reason why that particular time span was selected.\nId. (citation omitted).\nIn its findings of fact, the trial court found that the checkpoint had fixed starting and ending times; the checkpoint was located in the 7200 block of Providence Road, an area located within a mile of a major shopping area where there are businesses which serve or sell alcohol; the checkpoint\u2019s location was selected based on impaired driving statistics; and the checkpoint was conducted according to a written plan, was properly marked, and was intended to stop all passing drivers to check for impaired driving violations. These findings of fact are supported by the evidence and \u201cindicate that the trial court considered appropriate factors to determine whether the checkpoint was sufficiently tailored to fit its primary purpose, satisfying the second Brown prong.\u201d Jarrett, 203 N.C. App. at 680-81, 692 S.E.2d at 425.\n\u201cThe final Brown factor to be considered is the severity of the interference with individual liberty.\u201d Id. at 681, 692 S.E.2d at 425. \u201c[C]ourts have consistently required restrictions on the discretion of the officers conducting the checkpoint to ensure that the intrusion on individual liberty is no greater than is necessary to achieve the checkpoint\u2019s objectives.\u201d Veazey, 191 N.C. App. at 192-93, 662 S.E.2d at 690-91 (citations omitted).\nCourts have previously identified a number of nonexclusive factors relevant to officer discretion and individual privacy, including: the checkpoint\u2019s potential interference with legitimate traffic[]; whether police took steps to put drivers on notice of an approaching checkpoint[]; whether the location of the checkpoint was selected by a supervising official, rather than by officers in the field[]; whether police stopped every vehicle that passed through the checkpoint, or stopped vehicles pursuant to a set pattem[]; whether drivers could see visible signs of the officers\u2019 authority[]; whether police operated the checkpoint pursuant to any oral or written guidelines []; whether the officers were subject to any form of supervision[]; and whether the officers received permission from their supervising officer to conduct the checkpoint[.]\nId. at 193, 662 S.E.2d at 691 (citations omitted). \u201cOur Court has held that these and other factors are not lynchpin[s],\u2019 but instead [are] circumstance [s] to be considered as part of the totality of the circumstances in examining the reasonableness of a checkpoint.\u201d Id. (citation and quotation omitted).\nAs previously discussed, in its findings of fact the trial court noted the following:\n4. The check point was set up in compliance with NCGS 20-16.3A: there was a written plan; Sgt. Sloan briefed the 25 officers from 6 different agencies who were operating the checkpoint; every vehicle was to be stopped and was stopped; signs notifying approaching motorists of a DWI check point ahead were placed approximately 200 yards from [the] check point; [and] non-impaired drivers were only delayed about 15 seconds each.\nSuch findings meet the third factor of Brown, as \u201cthe totality of the circumstances in examining the reasonableness of [the] checkpoint\u201d was examined and set forth by the trial court in its order. See Kostick, _ N.C. App. at _, 755 S.E.2d at 421 (citation omitted) (holding that where the record showed the trial court heard and weighed the evidence regarding whether a DWI checkpoint was established for a legitimate primary purpose and the checkpoint stops were reasonable, advanced an important public interest, and were conducted pursuant to a written plan, the trial court\u2019s denial of the defendant\u2019s motion to suppress evidence of the checkpoint was affirmed). Therefore, as the trial court determined the checkpoint had a legitimate primary purpose and that the Brown factors were met, defendant\u2019s argument is accordingly overruled.\nNo error.\nJudges CALABRIA and GEER concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.", "Arnold & Smith, PLLG, by Laura M. Cobb, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRUCE ALLEN TOWNSEND, JR., Defendant\nNo. COA14-129\nFiled 16 September 2014\n1. Motor Vehicles\u2014Knoll motion\u2014secured bond\u2014no written findings\u2014not prejudicial\nThe trial court did not err in a prosecution for driving while impaired by denying defendant\u2019s motion to dismiss based on the magistrate\u2019s alleged failure to inform defendant of the charges; his right to communicate with counsel, family, and friends; and of the general circumstances for his release (a Knoll motion). Defendant had several opportunities to call counsel and friends but did not do so and, while the magistrate did not make the required written findings for the secured bond option, defendant was released to his wife on an unsecured bond and suffered no prejudice.\n2. Evidence\u2014intoxication\u2014motion to suppress\u2014probable cause \u2014driving while impaired\nThe trial court did not err in a prosecution for driving while impaired by denying defendant\u2019s motion to suppress for lack of probable cause to arrest. Although defendant argued that he did not exhibit signs of intoxication such as slurred speech or glassy eyes, defendant had bloodshot eyes, an odor of alcohol, showed signs of intoxication on three field sobriety tests, and gave positive results on two aico-sensor tests.\n3. Evidence\u2014aleo-sensor test\u2014not redacted\u2014not introduced at trial\nThe trial court did not abuse its discretion in a driving while impaired prosecution by allowing into evidence at a pretrial hearing the numerical results of an alco-sensor test. Although the admission of the numerical results was error, the numerical results of the test were never admitted before the jury and there was sufficient other evidence to survive defendant\u2019s motion to dismiss for lack of probable cause.\n4. Evidence\u2014driving while impaired\u2014checkpoint\u2014motion to suppress\u2014legitimate purpose\u2014requirements satisfied\nThe trial court did not err during a driving while impaired prosecution by denying defendant\u2019s motion to suppress evidence resulting from a checkpoint. The trial court determined that the checkpoint had a legitimate primary purpose and that the requirements of Brown v. Texas, 443 U.S. 47 (1979), were met.\nAppeal by defendant from judgment entered 1 August 2013 by Judge Susan E. Bray in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 June 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.\nArnold & Smith, PLLG, by Laura M. Cobb, for defendant-appellant." }, "file_name": "0456-01", "first_page_order": 464, "last_page_order": 480 }