State v. Crawford

480 S.E.2d 422 (1997)

STATE of North Carolina v. Brad Lee CRAWFORD.

No. COA95-1359.

Court of Appeals of North Carolina.

February 4, 1997.

*423 Attorney General Michael F. Easley by Assistant Attorney General Joseph P. Dugdale, for the State.

Mark B. Campbell, Greensboro, for defendant-appellee.

McGEE, Judge.

On appeal, the State argues the deputy had probable cause to arrest the defendant and that exigent circumstances justified defendant's warrantless arrest. We agree and reverse the order of the trial court.

To be guilty of driving while impaired, a person must drive a vehicle upon a highway, street, or public vehicular area within this State while under the influence of an impairing substance or after having consumed sufficient alcohol to have a blood alcohol concentration of .08 or more at any relevant time after driving. N.C. Gen.Stat. § 20-138.1(a)(1993). The determinative question in this case is whether, under the facts and circumstances, the deputy had probable cause to arrest defendant for driving while impaired. We hold that he did.

To be constitutionally valid, an arrest must be based upon probable cause. State v. Eubanks, 283 N.C. 556, 559, 196 S.E.2d 706, 708 (1973).

"Probable cause for an arrest has been defined to be 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 establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of *424 guilt, but it must be such as would actuate a reasonable man acting in good faith...." "The existence of `probable cause,' justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved."

State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364 (1971)(quoting 5 Am.Jur.2d Arrests §§ 44 & 48 (1962)). Therefore, the degree of certainty necessary for probable cause is a "fair probability," an amount of proof greater than "reasonable suspicion" but less than "preponderance of the evidence," "clear and convincing," or "beyond a reasonable doubt." See, e.g., Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)(probable cause does not deal with hard certainties, but with probabilities); Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 2330-31, 76 L. Ed. 2d 527, 546 (1983)(probable cause requires only the probability of criminal activity, not a prima facie showing); State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 146 (1984)(probable cause "does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required."). "In order to justify an officer in making an arrest without a warrant, it is not essential that the offense be shown to have been actually committed. It is only necessary that the officer have reasonable ground to believe such offense has been committed." State v. Jefferies, 17 N.C.App. 195, 198, 193 S.E.2d 388, 391 (1972), cert. denied, 282 N.C. 673, 194 S.E.2d 153 (1973).

In this case, the deputy found defendant alone in a car parked on the shoulder of a rural side road. Defendant was in the driver's seat in a semiconscious state, his pants were undone, and he had been drooling. Defendant had a strong odor of alcohol about him, had difficulty speaking, and admitted to the deputy he had been drinking. However, there was no evidence of alcohol in the car. On a night when the temperature was 26 degrees, the hood felt warm, indicating the car had been recently driven. There were no other passengers in the car and the deputy observed a box of tapes and a car cover occupying the passenger seats. Defendant had possession and control of the ignition key. We do not, nor do we need to, reach the issue of whether there was sufficient evidence that the defendant "drove" the vehicle as defined by N.C. Gen.Stat. § 20-4.01(7) & (25). In light of the particular circumstances and the offense involved, the facts are sufficient to warrant a reasonable and prudent person, acting in good faith, to have a reasonable ground to believe the defendant had committed the misdemeanor offense of driving while impaired, or that there was a fair probability the defendant had committed the offense. Therefore, the deputy had probable cause to arrest defendant.

We also hold the deputy had authority to arrest defendant without a warrant. Under N.C. Gen.Stat. § 15A-401(b)(2)(1996 Cumm. Supp.), an officer may make an arrest without a warrant for an offense committed out of the officer's presence where the officer has probable cause to believe the person committed a misdemeanor and may cause physical injury to themselves or others, or damage to property unless immediately arrested. This Court has held that where an officer is alone at the scene and there is no evidence the intoxicated driver's car is inoperable, the officer has probable cause to believe the driver may cause injury to himself or others. In re Pinyatello, 36 N.C.App. 542, 545, 245 S.E.2d 185, 187 (1978). This is so because, if the officer left the scene to obtain a warrant, there would be no one to prevent the driver from operating his car or to protect the driver from traffic hazards on a public street. Id. Because of "the well known propensity of intoxicated persons to engage in irrational and erratic behavior," an officer has probable cause to believe a drunk driver will return to his vehicle, drive upon the highway, and possibly cause physical injury to himself or others unless immediately arrested. In re Gardner, 39 N.C.App. 567, 572, 251 S.E.2d 723, 726 (1979). This is especially so when, as in this case, the intoxicated person makes an attempt to drive away from the scene.

*425 Because we hold the deputy had probable cause to believe defendant had committed the offense of driving while impaired and would present a danger to himself and others if not immediately arrested, the order of the trial court granting defendant's motion to suppress evidence obtained after defendant's arrest is reversed.

Reversed.

EAGLES and WALKER, JJ., concur.