STATE OF NORTH CAROLINA v. PETER GEORGE TAPPE Defendant
(Filed 18 July 2000)
Evidence--motion to suppress--driving while impaired--officer’s observations
The trial court did not err in a driving while impaired case by denying defendant’s
motion to suppress all evidence obtained subsequent to defendant’s arrest because the police
officer had sufficient probable cause to arrest defendant based on the officer’s observations of
defendant’s vehicle crossing the center line; defendant’s glassy, watery eyes; and a strong odor
of alcohol on defendant’s breath.
Motor Vehicles--driving while impaired--breathalyzer test results--customary and
The trial court did not err in a driving while impaired case by admitting the results of
defendant’s breathalyzer test, even though pertinent documents were destroyed in accordance
with standard procedures during the ten-year period between defendant’s arrest and the hearing
date, because: (1) the qualified individual who administered the test related the customary and
required procedures he and other chemical analysts followed in administering breathalyzer tests,
including performance of a simulator test prior to obtaining an actual breath sample, to show the
test was administered in conformity with the habit or routine practice, N.C.G.S. § 8C-1, Rule
406; (2) the individual who administered the test related his personal experience in operating the
Breathalyzer 900; and (3) the individual’s testimony comprised a proper and acceptable manner
of establishing compliance with the requirements of N.C.G.S. § 20-139.1(b) for a valid chemical
Motor Vehicles--driving while impaired--blood test--right to assistance
Defendant’s statutory right under N.C.G.S. § 20-16.2(a)(5) and N.C.G.S. § 20-139.1(d) to
assistance in obtaining a blood test after his submission to a chemical analysis was not violated
in a driving while impaired case, because: (1) an officer’s duty goes no further than allowing a
defendant access to a telephone and allowing medical personnel access to a driver held in
custody; and (2) defendant acknowledged that he was afforded an opportunity to telephone both
his girlfriend and his attorney in Virginia, which reveals that defendant could have telephoned a
medical expert or hospital for the purposes of conducting a blood test.
Appeal by defendant from judgment entered 15 September 1998 by
Judge J. Richard Parker in Camden County Superior Court.
the Court of Appeals 6 January 2000.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
D. Keith Teague, P.A., by Danny Glover, Jr., for defendantappellant.
Defendant appeals judgment entered upon conviction by a jury
of driving while impaired.
Defendant contends the trial court
erred by denying his motion to suppress results of a breathalyzer
We conclude the trial court did not err.
The State’s evidence at trial tended to show the following:
On 21 August 1988, North Carolina Highway Patrol (the Patrol)
Sergeant Roscoe Spencer (Spencer), while operating his Patrol
automobile, passed a vehicle traveling in the opposite direction
and thereupon “observed [it] . . . cross the center line.”
Spencer immediately pursued and stopped the vehicle, operated by
Upon approaching, Spencer noticed a “strong odor of
alcohol about [defendant’s] breath [and that] his eyes were glassy
Spencer asked defendant if he had been drinking.
The latter acknowledged he had consumed one-half the contents of an
open beer container located in his vehicle, but denied having done
so while driving.
He also remarked that he was of German origin
and that “in Germany they drank beer for water.”
defendant, Spencer arrested the latter on a charge of driving while
defendant’s vehicle to drive it to the Sheriff’s Department in
Upon arriving at the Sheriff’s Department, Spencer began
filling out an Alcohol Influence Report (A.I.R.) and conducted
certain sobriety tests.
Spencer’s notes on the tests had been
characterization of defendant’s performance on the tests.
Following the sobriety tests, Patrol Sergeant Raymond Potts
(Potts), a certified chemical analyst, administered a breathalyzer
Thereafter, both Spencer and Potts accompanied
defendant to the magistrate’s office, where bond was set at $250.00
and defendant was ordered detained for sixteen (16) hours unless
released into the custody of a responsible adult.
defendant’s home state, and was released upon the latter’s arrival
approximately two and one-half hours later.
Defendant returned to Virginia and did not address the DWI
charge until 1998, when he attempted to renew his Virginia driver’s
During the ten year period following defendant’s arrest,
most documents pertaining to his case were purged and destroyed in
accordance with standard Patrol procedures.
The sole documents
remaining at the time of trial were Spencer’s affidavit (Spencer’s
defendant’s arrest and the original “Breathalyzer Test Record”
signed by Potts, indicating a 0.34 blood alcohol concentration.
In his testimony, defendant related that he had conveyed to
Spencer his lack of familiarity with the area and explained that he
had crossed the center line in order to see a real estate agent
whom he was following to view property in the area.
requested a blood test several times because he had consumed only
one-half to three-quarters of the beer from the can in his vehicle.
Defendant testified Spencer responded he had “enough evidence . .
. [and] need[ed] no blood test,” and that he was never given access
to a telephone or an opportunity to contact a hospital or doctor.
Defendant recalled performing sobriety tests at the Sheriff’s
 Defendant first contends the trial court erred in denying
his motion to suppress all evidence obtained subsequent to his
Defendant asserts Spencer lacked probable cause for the
Probable cause for an arrest is
a reasonable ground of suspicion, supported by
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
State v. Thomas, 127 N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997).
The existence of such grounds is determined by the “practical and
factual considerations of everyday life on which reasonable and
prudent people act.”
State v. Crawford, 125 N.C. App. 279, 281,
480 S.E.2d 422, 424 (1997).
If there is no probable cause to
arrest, evidence obtained as a result of that arrest and any
evidence resulting from the defendant’s having been placed in
custody, should be suppressed.
State v. Pope, 333 N.C. 106, 113-
14, 423 S.E.2d 740, 744 (1992).
At the voir dire hearing conducted upon defendant’s motion to
suppress, Spencer testified he met a vehicle traveling in the
opposite direction on 21 August 1988 and “observed [it] . . .
cross the center line” after passing Spencer’s Patrol automobile.
Spencer related that upon stopping the vehicle, he “could smell
alcohol that was inside” it and noted that defendant, the driver,
“had a strong odor of alcohol about his breath” when he talked.
As defendant accompanied Spencer to the Patrol automobile, Spencer
observed “a strong odor of alcohol about [defendant’s] breath,
[and] his eyes were watery and glassy.”
Based upon the foregoing observations and his conversation
with defendant, Spencer formed the opinion that defendant was
“impaired” and placed him under arrest.
Spencer indicated he had
completed a citation at the scene which included notes taken prior
to and after defendant’s arrest, but explained the citation was not
introduced at trial because it had been purged five years following
institution of the charge against defendant.
affidavit was used to refresh his recollection of defendant’s
behavior and appearance on 21 August 1988.
During the hearing, defendant indicated that a real estate
agent had offered him a beer on the date in question prior to
defendant’s viewing property in the Camden County area.
I got me this Milwaukee beer and I didn’t like
it, it was terrible. So I drink [sic] only a
little bit and put it there in the car. I did
not even drink it in the car. What I drink
[sic] out of this beer was on his property
Defendant claimed he drank one half the can of beer and left the
remaining portion in his vehicle.
After being stopped by Spencer,
defendant explained he had crossed the center line because he was
attempting to follow the real estate agent traveling in front of
Following the hearing, the trial court rendered the following
pertinent findings of fact:
2. That [Defendant] was observed by Trooper
Roscoe Spencer . . . crossing the center line
of the highway and that he was thereafter
stopped. . . .
3. It was observed that the Defendant had a
strong odor of alcohol on his breath and had
glassy, watery eyes.
Upon making this observation, Trooper
Spencer formed an opinion that the Defendant
was, in his opinion, under the influence of an
impairing substance and he was arrested for
sufficient probable cause to arrest the defendant for driving while
It is well established that
[t]he scope of review on appeal of a
defendant’s motion to suppress is strictly
limited to determining whether the trial
court’s findings are supported by competent
evidence, in which case they are binding on
appeal, and in turn, whether those findings
support the trial court’s conclusions of law.
State v. Cabe, 136 N.C. App. 510, 512, 524 S.E.2d 828, 830, disc.
review denied, 351
In the case sub judice, the trial court’s findings
are supported by evidence adduced at the suppression hearing, are
thereby conclusive on appeal, and fully warrant the trial court’s
conclusion of law “that Trooper Spencer had sufficient probable
Spencer’s observations of defendant, set forth fully above and
including his observation of defendant’s vehicle crossing the
center line, defendant’s glassy, watery eyes, and the strong odor
of alcohol on defendant’s breath, provided sufficient evidence of
probable cause to justify the warrantless arrest of defendant.
See, e.g., State v. Rogers, 124 N.C. App. 364, 369-70, 477 S.E.2d
221, 224 (1996), disc. review denied, 345 N.C. 352, 483 S.E.2d 187
(1997) (probable cause for driving while impaired arrest based upon
officer’s opportunity to observe defendant, to speak with him and
officer’s noting of strong odor of alcohol on defendant), and State
(1988)(probable cause for driving while impaired arrest based upon
The trial court did not err in denying defendant’s
motion to suppress.
 Defendant next challenges admission into evidence of the
results of defendant’s breathalyzer test.
N.C.G.S. § 20-139.1(b)(1984, amended 1997) was contravened at trial
in that the State failed to prove a simulator test had been
satisfactorily performed prior to administration of defendant’s
Again, we disagree.
The version of G.S. § 20-139.1(b) in effect at the time of
defendant’s 1988 arrest contained two prerequisites for a valid
First, it require[d] that such analysis shall
have been performed according to methods
approved by the [Commission for Health
Second, it require[d] that such
analysis shall have been made by an individual
possessing a valid permit issued by the State
Board of Health for this purpose.
State v. Powell, 10 N.C. App. 726, 728, 179 S.E.2d 785, 786, aff’d,
279 N.C. 608, 184 S.E.2d 243 (1971).
Methods approved by the
Commission for Health Services included performance by the chemical
analyst, as part of the testing process, of a simulator test on the
breathalyzer machine prior to testing a defendant’s breath sample.
State v. Shuping, 312 N.C. 421, 427, 323 S.E.2d 350, 354 (1984).
Such testing constituted a “control test” to “verify the accuracy
of the machine.”
Defendant does not argue that Potts, who administered the test
and testified as to the results, was not shown to possess the
qualifications required by G.S. § 20-139.1(b).
Rather, the thrust
of defendant’s argument is that it was incumbent upon the State
under G.S. § 20-139.1(b) to introduce evidence of simulator test
results, and that without such evidence the State failed to prove
defendant’s breathalyzer test was administered in accordance with
In its order denying defendant’s motion to suppress, the trial
court found as fact that Spencer made “efforts to obtain copies”
of his A.I.R. and the citation copy containing Spencer’s personal
notes concerning defendant’s case, but that these documents had
“been discarded over the course of time.” As noted above, standard
operating procedure of the Patrol caused destruction of such
documents upon expiration of approximately five (5) years.
State v. Jones, 106 N.C. App. 214, 217-18, 415 S.E.2d 774, 776
(1992)(defendant’s federal due process rights not violated by
police officer’s disposal of control and test ampules used in
performing breathalyzer test in accordance with standard procedures
where defendant did not challenge such procedures or present
evidence to the contrary).
More importantly, defendant presented
no evidence to indicate the simulator results or other destroyed
documents would have been exculpatory. See id. (State’s failure to
take and preserve an additional breath sample or produce the
control and test ampules for defendant’s examination did not
violate state and federal due process).
Significantly, this Court held in State v. Powell, 10 N.C.
App. at 728, 179 S.E.2d at 786, that compliance with the two G.S.
destruction of pertinent documents in accordance with standard
procedures during the ten year period between defendant’s arrest
and the hearing date, Spencer and Potts, without the benefit of
their documented notes, were unable to recall specific details
Nonetheless, Potts related the customary and required procedures he
and other chemical analysts followed in administering breathalyzer
tests, including performance of a simulator test prior to obtaining
an actual breath sample.
N.C.G.S. § 8C-1, Rule 406 (1983)(Rule 406), provides that
[e]vidence of the habit of a person or of the
routine practice of an organization, whether
corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove
that the conduct of the person or organization
on a particular occasion was in conformity
with the habit or routine practice.
“Habit” may be proven by testimony of a witness who is
sufficiently familiar with a person’s conduct to conclude that the
conduct in question is habitual.
Crawford v. Fayez, 112 N.C. App.
328, 332, 435 S.E.2d 545, 548 (1993), disc.
review denied, 335
N.C. 553, 441 S.E.2d 113 (1994)(“habit may be proven by testimony
of a witness who is sufficiently familiar with the person’s conduct
to conclude that the conduct in question is habitual,” and specific
instances of conduct may be used to prove habit if such evidence is
found to be reliable and probative; testimony of five former
patients thus sufficient to establish doctor had habit of warning
his patients about side effects of infertility drug); see State v.
Simpson, 299 N.C. 335, 346, 261 S.E.2d 818, 825 (1980)(rest home
employee properly testified regarding her habit of keeping screens
and windows of the business closed).
Potts, specially trained to operate the Breathalyzer model 900
machine used to record defendant’s breath sample, testified as to
the customary procedures followed in administering tests with that
He indicated the methods approved by the Commission of
Health Services for administration of such a test were set forth in
analysts, including himself.
Although the original operational
checklist used in defendant’s case had been destroyed, Potts
referred to an identical form in effect at the time of defendant’s
test to relate the procedures he followed in August of 1988.
Potts stated the 1988 checklist had likewise been approved by
the Commission of Health Services, and that, in completing the
form, he had entered defendant’s name, the date and time of
observation, the “instrument number, the simulator number and
ampule control number.” Potts then proceeded to describe in detail
the numerous procedures, including performance of a simulator test,
Finally, Potts related his personal experience in operating
the Breathalyzer 900:
Counsel: And how many times would you say you
had used the Breathalyzer by August 21, 1988?
Probably a thousand.
Potts thus testified as to the customary required procedures
routinely utilized by himself and other chemical analysts in
administering a Breathalyzer 900 test, including performance of a
simulator test. Potts’ testimony provided competent evidence under
G.S. § 8C-1, Rule 406, that the breathalyzer test administered to
defendant “was in conformity with the habit or routine practice,”
Construction Co., 98 N.C. App. 203, 207, 390 S.E.2d 341, 343
(1990), rev’d on other grounds, 101 N.C. App. 564, 400 S.E.2d 735
(1991)(corporate defendant’s safety specialist competent to testify
insulation, notwithstanding specialist was not actually present at
jobsite where such removal occurred), and Crawford, 112 N.C. App.
at 332, 435 S.E.2d at 548; see generally Long v. Harris, 137 N.C.
App. __, __, 528 S.E.2d 633, 635 (2000)(“whether . . . proffered
evidence is sufficient to establish habit is a question to be
decided on a case-by-case basis, and the trial court’s rulings
thereon will not be disturbed absent an abuse of discretion”).
establishing compliance with requirements of G.S. § 20-139.1(b),
see Powell, 10 N.C. App. at 728, 179 S.E.2d at 786 (State may prove
compliance with G.S. § 20-139.1(b) in “any proper and acceptable
manner”), and absent evidence to the contrary, provided the basis
for a reasonable inference by the trier of fact that he conducted
a valid simulator test prior to administering defendant’s test, see
State v. Doggett, 41 N.C. App. 304, 305-06, 254 S.E.2d 793, 794
(1979)(where officer testified he was a certified Breathalyzer
operator, and “testified in detail about simulator test he ran
before testing defendant . . . the Breathalyzer test results were
admissible notwithstanding fact there was no evidence that officer
held such a permit on the day of the offense”).
We also note parenthetically recognition by our Supreme Court
in State v. Shuping, 312 N.C. at 431, 323 S.E.2d at 355-56, that
reliability of breath-testing devices, including the Breathalyzer
Models 900 and 900A, and have determined them to be reliable
Id.; see State v. Smith, 312 N.C. 361,
372, 323 S.E.2d 316, 322 (1984)(“the science of breath analysis for
increasingly less dependent on human skill of operation, and
increasingly accepted as a means for measuring blood alcohol
 In his final argument, defendant contends his statutory
Defendant asserts he requested a blood test several times, but was
not accorded assistance in obtaining one.
N.C.G.S. § 20-16.2(a)(5)(1984, amended 1995), in effect at the
time of defendant’s arrest, provided that an individual charged
with driving while impaired could obtain a
qualified person of his own choosing to
administer a chemical test or tests in
addition to any test administered at the
direction of the charging officer.
Additionally, any officer with a person in his charge who
submitted to a chemical analysis was mandated to
assist the person in contacting someone to
administer the additional testing . . . and
[to] allow access to the person for that
N.C.G.S. § 20-139.1(d)(1984, amended 1997).
In State v. Bumgarner, 97 N.C. App. 567, 573, 389 S.E.2d 425,
429, disc. review denied, 326 N.C. 599, 393 S.E.2d 873 (1990), this
Court further clarified the responsibilities of a law enforcement
officer with respect to a blood test as follows:
officers may not hinder a driver from
obtaining an independent sobriety test, but
their constitutional duties . . . go no
further than allowing a [d]efendant access to
a telephone and allowing medical personnel
access to a driver held in custody.
requested a blood test several times, but was never given access to
a telephone, did not have an opportunity to contact a hospital or
doctor, and was told by Spencer that they “have enough evidence,
acknowledged he was afforded an opportunity to telephone both his
girlfriend and his attorney in Virginia.
defendant’s having requested a blood test, but, according to
if [defendant] had requested us to - to - for
a blood test, we would have given him access to
several telephones that were located at the
Sheriff’s Office within walking distance
of the Breathalyzer.
Spencer further indicated that upon receipt of a blood test
request, it was Patrol policy to
give them a telephone book and a telephone to
make a phone call and give them directions,
telephone numbers, to an appropriate facility.
In its order denying defendant’s motion to suppress, the trial
court concluded as a matter of law that:
Defendant was given an opportunity to use the
telephone to make certain calls to his
girlfriend and attorney, Adderley, and could
have called a medical expert or hospital for
the purposes of conducting a blood test.
The court, as the sole judge of the credibility of the
witnesses, thus chose to accept the testimony of Spencer and Potts
to the effect that defendant would have been provided access to a
telephone had he requested a blood test, and to reject defendant’s
conflicting testimony that he was denied the opportunity to secure
girlfriend and his attorney.
See State v. Jean, 310 N.C. 157, 183,
311 S.E.2d 266, 281 (1984)(trial judge “must assess the credibility
of witnesses in rendering his judgment as to the admissibility of
the evidence which is the subject of the voir dire”), and State v.
Bass, 280 N.C. 435, 448, 186 S.E.2d 384, 393 (1972) (on voir dire,
“credibility [of witness] was subject to impeachment before the
judge in the same manner as it would have been had he taken the
stand and testified before the jury”); see generally Rosales-Lopez
v. U.S., 451 U.S. 182, 188, 68 L. Ed. 2d 22, 28 (1981)(during voir
dire trial judges “must reach conclusions as to . . . credibility
by relying on their own evaluations of demeanor evidence and of
responses to questions,” and “an appellate court [cannot] easily
second-guess the conclusions of . . . decision maker who heard and
observed the witnesses”); see also State v. Eubanks, 283 N.C. 556,
563, 196 S.E.2d 706, 711 (1973)(“[d]efendant’s testimony that he
had consumed only two bottles of beer suggests perjury rather than
Judges MCGEE and HUNTER concur.