{
  "id": 12168110,
  "name": "STATE OF NORTH CAROLINA v. CRAIG RAYMOND KNOLL",
  "name_abbreviation": "State v. Knoll",
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    "judges": [
      "Chief Judge HEDRICK and Judge ARNOLD concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. CRAIG RAYMOND KNOLL"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nDefendant, Craig Raymond Knoll, was charged with a violation of N.C.G.S. \u00a7 20-138.1, driving with an alcohol concentration of 0.10 or more. The district court dismissed the charge against defendant and the superior court affirmed the dismissal on the grounds that defendant was denied his constitutional and statutory rights of access to counsel and friends after being arrested.\nThis Court is faced with two issues for consideration. First, was there a substantial violation of defendant\u2019s constitutional and statutory right of access to counsel and friends. We hold that defendant\u2019s statutory right of access to counsel and friends was, in fact, substantially violated. The second issue to be determined is whether the trial court erred in dismissing the charge against defendant based upon a per se rule of prejudice. As to that contention, we hold that the trial court\u2019s ruling was in error.\nDefendant was stopped by a Raleigh police officer at 1:15 p.m. on 17 April 1984 and was charged with driving while impaired. Defendant was taken to the Wake County Courthouse where, at approximately 2:31 p.m., he took the intoxilyzer test. The results showed defendant\u2019s alcohol concentration to be 0.30.\nA magistrate set defendant\u2019s bond at $300.00. Around 4:00 p.m. defendant made several requests to phone his father. Defendant stated that he was allowed to call his father around 5:00 p.m. Defendant\u2019s father claimed that the magistrate told him over the phone that his son could not be released until 11:00 p.m. Defendant\u2019s father, therefore, did not come to the station immediately but did post bond for his son, sometime later that night.\nI.\nThere are three statutes that are applicable to the issue of whether there was a substantial violation of defendant\u2019s statutory right of access to counsel and friends. N.C.G.S. \u00a7 15A-511(b) states in part:\n(b) Statement by the Magistrate. \u2014The magistrate must inform the defendant of:\n(1) The charges against him;\n(2) His right to communicate with counsel and friends; and\n(3) The general circumstances under which he may secure release under the provisions of Article 26, Bail.\nN.C.G.S. \u00a7 15A-533(b) reads in applicable part:\n(b) A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534.\nN.C.G.S. \u00a7 15A-534(c) reads in pertinent part:\n(c) In 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; . . . whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; . . . and any other evidence relevant to the issue of pretrial release.\nThe district court judge in the case sub judice found as a fact that the magistrate failed to inform defendant of the general circumstances under which he could secure pretrial release as required by N.C.G.S. \u00a7 15A-511(b) and failed to determine conditions of pretrial release in accordance with N.C.G.S. \u00a7\u00a7 15A-533(b) and 534(c). The district court further found that, but for these statutory deprivations, defendant could have secured release from jail and access to friends and family.\nBecause the record is void of any evidence to the contrary, this Court is bound by those factual findings of the district court. Fast v. Gulley, 271 N.C. 208, 211, 155 S.E. 2d 507, 509 (1967) (findings of fact by the trial court which are supported by competent evidence are conclusive on appeal). This Court, therefore, finds that defendant was substantially deprived of his statutory rights as set forth above. Having found a substantial violation of defendant\u2019s statutory rights, we do not reach the question of whether a violation of his constitutional rights occurred.\nII.\nNext, we address the issue of whether the trial court erred in finding that defendant\u2019s case was irreparably prejudiced by the substantial deprivation of statutory rights and thus the only appropriate remedy was the dismissal of the charge against defendant. See State v. Shadding, 17 N.C. App. 279, 282-83, 194 S.E. 2d 55, 57, cert. denied, 283 N.C. 108, 194 S.E. 2d 636 (1973) (noting that failure to afford defendant remedy for a violation of N.C.G.S. \u00a7 20-16.2 would render the statute meaningless).\nNo case should be dismissed for the violation of a defendant\u2019s statutory rights unless, at the very least, these violations cause irreparable prejudice to the defendant\u2019s preparation of his case. See State v. Curmon, 295 N.C. 453, 457, 245 S.E. 2d 503, 505 (1978) (\u201cA mere technical error will not entitle a defendant to a new trial; rather, it is necessary that the error be material and prejudicial.\u201d).\nIn regard to this second issue, the State contends that the district court erred in dismissing the charge against defendant because it applied the per se prejudice rule formulated in State v. Hill, 277 N.C. 547, 178 S.E. 2d 462 (1971). Hill involved a defendant charged with driving under the influence of an intoxicating liquor. The defendant had called his attorney who immediately went to the jail and arranged bond for him. After having posted bond, the jailer refused to release Hill to the custody of his attorney.\nUpon review by the Supreme Court of North Carolina, the majority in an opinion by Justice (later Chief Justice) Sharp, dismissed the prosecution against Hill and set forth the following rule:\n[T]he rule we now formulate will be uniformly applicable hereafter. It may well be that here \u201cthe criminal is to go free because the constable blundered.\u201d People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587. Notwithstanding, when an officer\u2019s blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence did not exist. In Re Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr. 80.\nState v. Hill, 277 N.C. at 555, 178 S.E. 2d at 467.\nHill was prosecuted under N.C.G.S. \u00a7 20-138 (repealed 1983) for unlawfully operating a motor vehicle on a public street while under the influence of an intoxicating liquor. 1937 N.C. Sess. Laws ch. 407, \u00a7 101; 1971 N.C. Sess. Laws ch. 619, \u00a7 1; and 1973 N.C. Sess. Laws ch. 1081, \u00a7 1. Under that statute there was only one offense \u2014driving under the influence.\nA person is under the influence within the meaning of G.S. 20-138 when he has drunk a sufficient amount of intoxicating beverage or taken a sufficient amount of narcotic drug to cause him to lose normal control of his bodily or mental faculties or both to such an extent that there is an appreciable impairment of either or both of these faculties. State v. Ellis, 261 N.C. 606, 135 S.E. 2d 584 (1964); State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688 (1946).\nState v. Jenkins, 21 N.C. App. 541, 543, 204 S.E. 2d 919, 921 (1974).\nPrior to 1973, chemical analysis results could only establish an inference that the defendant was under the influence. State v. Jenkins, 21 N.C. App. 541, 204 S.E. 2d 919. The jury was free to acquit a defendant no matter what the results of the chemical analysis showed. State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165 (1967). Likewise, the jury could convict without any chemical analysis, based upon other evidence relating to the observed impairment of a defendant\u2019s physical or mental faculties.\nUnder N.C.G.S. \u00a7 20-138, it was therefore critical to the defense that the defendant immediately upon being charged be able to gather evidence that would potentially persuade a jury that his mental and physical faculties were, in fact, not appreciably impaired. In Hill the denial of access to counsel and friends was clearly prejudicial since it did, in fact, deprive the defendant of his only opportunity to obtain evidence which might prove his innocence. As the defendant\u2019s condition changed over time, the evidentiary value of access to counsel and friends evaporated.\nIn 1973 a new offense was created, driving with an alcohol concentration of 0.10 or more. 1973 N.C. Sess. Laws ch. 1081, \u00a7 1. This statute is codified as N.C.G.S. \u00a7 20-138.1(a)(2) and states in part that \u201c[a] person commits the offense of impaired driving if . . . after having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.10 or more.\u201d\nBecause of the change in North Carolina\u2019s driving while intoxicated laws, denial of access is no longer inherently prejudicial to a defendant\u2019s ability to gather evidence in support of his innocence in every driving while impaired case. While denial of access was clearly prejudicial in Hill, under the current 0.10 statute, a defendant\u2019s only opportunity to obtain evidence is not lost automatically, when he is detained, and improperly denied access to friends and family. Prejudice may or may not occur since a chemical analysis result of 0.10 or more is sufficient, on its face, to convict.\nIt is certainly possible that a defendant might be prejudiced by a denial of access or unwarranted detention. Such prejudice could occur, for example, where a defendant was not advised of his right to have a second chemical test, State v. Shadding, 17 N.C. App. 279, 282-83, 194 S.E. 2d 55, 57, cert. denied, 283 N.C. 108, 194 S.E. 2d 636 (1973), or where his right to secure a second test was denied. See State v. Fuller, 24 N.C. App. 38, 42, 209 S.E. 2d 805, 808 (1974) (failure of the State to establish that defendant was accorded the right to obtain an additional test rendered State\u2019s breath analysis inadmissible). Prejudice might also occur, for example, if pertinent evidence relating to contested elements of the offense, such as whether the defendant was in fact driving, became unavailable as a result of the denial of access.\nHowever, at the very least, a defendant must show that \u201clost evidence or testimony would have been helpful to his defense, that the evidence would have been significant, and that the evidence or testimony was lost\u201d as a result of the statutory deprivations of which he complains. State v. Dietz, 289 N.C. 488, 493, 223 S.E. 2d 357, 360 (1976) (discussing what constitutes prejudice in preindictment delay cases). Therefore, we hold that application of a per se prejudice rule as set forth in Hill is inappropriate in cases involving a violation of N.C.G.S. \u00a7 20438.1(a)(2), driving with an alcohol concentration of 0.10 or more.\nIn the case before us, defendant\u2019s blood alcohol level was 0.30 \u2014 substantially in excess of 0.10. Therefore, the result of the chemical analysis alone constitutes evidence sufficient to convict defendant. N.C.G.S. \u00a7 20438.1(a)(2) (1983). From the findings of fact, it is obvious that the court below applied the Hill test to determine whether defendant\u2019s rights were prejudiced. Nothing in the record supports the trial court\u2019s findings that would clearly indicate what, if any, evidence bearing on the issue of guilt or innocence was lost.\nSuch findings are, therefore, inadequate to support the dismissal of the charge in this case.\nOf particular significance in this case is the finding of fact that defendant had asked the arresting officer to allow him to take the intoxilyzer test again. Defendant\u2019s second affidavit, introduced into evidence at the hearing, states that after blowing a 0.30 on the first test Knoll asked the arresting officer, \u201cMay I please take this test again?\u201d The officer, according to the defendant\u2019s affidavit, said \u201cNo.\u201d\nIt is unclear from the evidence whether defendant was asking to retake the State administered test or to be allowed to take a second independent test. The \u201cAffidavit and Revocation Report of Chemical Analyst\u201d states that defendant was informed \u201corally\u201d and \u201cin writing\u201d of his rights pursuant to N.C.G.S. \u00a7 2046.2(a). That statute requires in part that the defendant \u201cmay have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer.\u201d\nThe uncontradicted evidence then, is that defendant was advised orally and in writing of his right to obtain a second test. It is unclear whether the officer\u2019s refusal to permit defendant \u201cto take this test again\u201d was a permissible denial of a request to have the State administer a second test or a denial of defendant\u2019s statutory right to have an independent test made. As pointed out in State v. Fuller, 24 N.C. App. 38, 209 S.E. 2d 805 (1974), \u201c[s]hould it be established that defendant was advised of his right to have another test, and he failed to obtain one or was unable to obtain one, G.S. 20-139.1(d) provides that the admissibility in evidence of the results of the test administered is not precluded.\u201d 24 N.C. App. at 42, 209 S.E. 2d at 808.\n\u201cThe failure of the State to establish that defendant was accorded this statutory right, in addition to the others which he was properly accorded, rendered the results of the breathalyzer test inadmissible in evidence.\u201d Id. at 42, 209 S.E. 2d at 808.\nThe evidence in the present case is inconclusive on this point and, therefore, inadequate to support the trial court\u2019s finding of fact that defendant was prejudiced as a result.\nThis case is reversed and remanded for trial. The superior court shall enter an order remanding this case to the district court for further proceedings in accordance with this opinion.\nReversed and remanded for trial.\nChief Judge HEDRICK and Judge ARNOLD concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
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    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.",
      "Crumpler & Scherer, by William B. Crumpler and Sally H. Scherer, for the defendant appellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CRAIG RAYMOND KNOLL\nNo. 8610SC424\n(Filed 3 February 1987)\n1. Arrest and Bail 8 7; Automobiles and Other Vehicles 8 125\u2014 driving while impaired-statutory right oi access to counsel and friends\nIn a prosecution for driving with a blood alcohol level of .10 or more, defendant was denied his statutory right of access to counsel and friends where the district court judge found that the magistrate failed to inform defendant of the general circumstances under which he could secure pretrial release as required by N.C.G.S. 15A-511(b) and failed to determine conditions of pretrial release in accordance with N.C.G.S. 15A-533(b) and 534(c).\n2. Arrest and Bail 8 7\u2014 driving while impaired\u2014denial of access to counsel and friends \u2014prima facie prejudice rule inapplicable\nApplication of a per se prejudice rule because of the statutory denial of access to counsel and friends is inappropriate in cases involving a violation of N.C.G.S. \u00a7 20138.1(a)(2), driving with an alcohol concentration of .10 or more. Rather, a defendant must show that significant evidence helpful to his defense was lost as a result of the denial of his statutory right of access.\n3. Arrest and Bail 8 7\u2014 driving while impaired \u2014 denial of access to friends and counsel \u2014no prejudice\nThere was no prejudice in a prosecution for driving with a blood alcohol level of .10 or more where defendant was denied his statutory right of access to counsel and friends but defendant\u2019s blood alcohol level was .30 and alone constituted sufficient evidence to convict defendant. The district court\u2019s application of the per se prejudice rule of State v. Hill, 277 N.C. 547, was not supported by findings indicating what, if any, evidence bearing on the issue of guilt or innocence was lost.\n4. Automobiles and Other Vehicles \u00a7 126.4\u2014 intoxilyzer test\u2014right to second test\nIn a prosecution for driving with a blood alcohol concentration of .10 or more, the evidence was inconclusive and inadequate to support the trial court\u2019s finding of fact that defendant was prejudiced when, after blowing a .30 on the first test, defendant asked \u201cMay I please take this test again?\u201d and was told no. The uncontradicted evidence was that defendant was advised orally and in writing of his right to obtain a second test and it was not clear whether the officer\u2019s refusal to permit defendant to take the test again was a permissible denial of a request to have the State administer a second test or a denial of defendant\u2019s statutory right to have an independent test.\nAppeal by the State from Farmer, Judge. Order entered 19 February 1986 in Superior Court, Wake County. Heard in the Court of Appeals 17 September 1986.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nCrumpler & Scherer, by William B. Crumpler and Sally H. Scherer, for the defendant appellee."
  },
  "file_name": "0228-01",
  "first_page_order": 256,
  "last_page_order": 263
}
