State v. Bumgarner

389 S.E.2d 425 (1990)

97 N.C. App. 567

STATE of North Carolina v. Larry Blake BUMGARNER, Defendant.

No. 8926SC788.

Court of Appeals of North Carolina.

March 20, 1990.

*427 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Isaac T. Avery, III, Sp. Deputy Atty. Gen., Raleigh, for the State.

Rankin, Merryman, Dickinson, Rawls & Ledford by Eben T. Rawls, III and Joseph L. Ledford, Charlotte, for appellant.

ARNOLD, Judge.

Defendant contends that the charge against him must be dismissed based upon a flagrant violation of his rights to assistance in obtaining additional chemical analysis pursuant to the provisions of N.C.Gen. Stat. § 20-139.1(d) and the due process clause of the fourteenth amendment of the United States Constitution since no officer transported him to a hospital for the purpose of having a blood sample withdrawn. He also asserts a violation of his constitutional right to secure witnesses in his favor pursuant to article I, section 23 of the North Carolina Constitution by reason of the pretrial release restrictions placed upon him by the magistrate.

First we will examine defendant's contention that the law enforcement officers had a duty to transport him to a facility that would perform the additional test. A defendant who submits to chemical analysis is informed that he has a right to "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." N.C. Gen.Stat. § 20-16.2(a)(5). In order to make this right a reality, the General Assembly also provided as follows:

Right to Additional Test.A person who submits to a chemical analysis may have a qualified person of his own choosing administer an additional chemical test or tests, or have a qualified person withdraw a blood sample for later chemical testing by a qualified person of his own choosing. Any law-enforcement officer having in his charge any person who has submitted to a chemical analysis must assist the person in contacting someone to administer the additional testing or to withdraw blood, and must allow access to the person for that purpose. The failure or inability of the person who submitted to a chemical analysis to obtain any additional test or to withdraw blood does not preclude the admission of evidence relating to the chemical analysis. (Emphasis added).

Gen.Stat. § 20-139.1(d).

The General Assembly did not specifically delineate the required duties of law enforcement *428 officers once the right to additional tests are asserted. Prior to the effective date of the Safe Roads Act in 1983, we had held the law only required that an arresting officer assist a defendant in contacting someone to administer the test and that providing transportation was not required. State v. Bunton, 27 N.C.App. 704, 220 S.E.2d 354 (1975). The Bunton decision, however, was based on an older version of N.C.Gen.Stat. § 20-139.1(d) which, in 1975 provided:

The person tested may have a physician, or qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law-enforcement officer. The failure or inability of the person tested to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law-enforcement officer. Any law-enforcement officer having in his charge any person who has submitted to the chemical test under the provisions of G.S. 20-16.2 shall assist such person in contacting a qualified person as set forth above for the purpose of administering such additional test.

Defendant contends that Bunton does not interpret the new version of N.C.Gen.Stat. § 20-139.1(d) and that the General Assembly expanded the rights of a defendant under the newer statute to require more assistance than providing a defendant with access to a telephone. We disagree.

In the quoted passages above, we have emphasized the operative language in both the old statute and the new version. Language in a statute should not be construed beyond its plain meaning. Begley v. Employment Security Comm., 50 N.C.App. 432, 274 S.E.2d 370 (1981). Using this rule to analyze the two statutes, we believe that the substance of the language in the two statutes simply has not changed. The old statute instructed officers to "assist such person in contacting a qualified person," while the new version states that the officer must "assist the person in contacting someone to administer the additional testing or to withdraw blood." The gist of both statutes is the same: the police must assist a defendant in contacting a person who can perform the additional test. Because the substance of the language has not changed, we hold that the following rule from State v. Bunton still applies: "All that the statute required of the arresting officer was that he assist defendant in contacting the doctor; he was not required in addition to transport the defendant to the doctor." Bunton, 27 N.C.App. 704, 707-708, 220 S.E.2d 354, 356.

The only substantive change in the amended statute is the requirement that law enforcement officials allow access to an interned defendant. The General Assembly probably made this addition in 1983 because of State v. Sawyer, which interpreted the statute as containing this guarantee of access. State v. Sawyer, 26 N.C. App. 728, 217 S.E.2d 116, cert. denied, 288 N.C. 395, 218 S.E.2d 469 (1975). It would be imprudent for us to read the addition of this access requirement as otherwise expanding an officer's duties of assistance.

N.C.Gen.Stat. § 20-139.1(d) does not guarantee an additional sobriety test. On the facts before us, we see no violation of defendant's statutory rights. Trooper Fox provided defendant with the assistance envisioned by the statute. The fact that assistance was provided by the trooper rather than the sheriff's deputies is not sufficient to require dismissal of the charge.

Most other states follow the Bunton rule that we have reembraced here. The majority rule is that when an accused is entitled to an independent test he must only be given reasonable opportunity to procure one. Annotation, Drunk Driving: Motorist's Right to Private Sobriety Test, 45 A.L.R. 4th 11 (1986). Most jurisdictions draw the line between police interference and police assistance, usually demanding no more than that the defendant be allowed a phone call. Id.

Defendant in the case before us contends that the failure of law enforcement officers to take him to the hospital also violated his due process rights as guaranteed *429 by the United States Constitution. While this challenge apparently was not raised in State v. Bunton, we now reject such an assertion. Again, the majority rule is that beyond allowing a telephone call, there are few constitutional demands on officers in this situation. See Annotation, 45 A.L.R. 4th 11. Law enforcement officers may not hinder a driver from obtaining an independent sobriety test, but their constitutional duties in North Carolina go no further than allowing a defendant access to a telephone and allowing medical personnel access to a driver held in custody.

Finally, defendant contends that his constitutional right to secure witnesses in his favor as protected by article I, section 23 of the North Carolina Constitution was violated by the pretrial release requirement imposed by Magistrate Johnson. Defendant claims that the imposition of the requirement that he not be released until 11:00 a.m. unless a sober adult appeared thwarted his attempt to obtain evidence in his own behalf at the only point in time such evidence could be gathered. This restriction violated his pretrial release right and prejudiced him. Again, we disagree.

The restriction defendant complains of is clearly authorized by N.C.Gen.Stat. § 15A-534.2(c). There is ample evidence to support the trial court's finding that the magistrate performed her job in setting the pretrial release requirements. Magistrate Johnson based her determination of the additional pretrial release restriction upon the testimony of Trooper Fox, her personal observations, as well as the results of the sobriety test. This evidence was sufficient to support her decision to impose the restriction. Furthermore, the record clearly indicates that the magistrate informed defendant of the requirements of his pretrial release. Although defendant tried to contact an attorney to observe his sobriety test, he admittedly did not attempt to call any other witness and apparently was unable to find a sober adult to agree to take custody of him. Defendant cannot blame anyone but himself for not securing his timely release.

In summary, the provisions of N.C.Gen. Stat. § 20-139.1(d) were not violated by only providing defendant with access to a telephone. His federal constitutional rights were not violated in failing to transport him to the hospital. Furthermore, the magistrate correctly imposed the pretrial release restriction requiring a sober responsible adult to take custody of the defendant pursuant to N.C.Gen.Stat. § 15A-534.2. There was no statutory or constitutional violation in her actions.

No error.

JOHNSON and ORR, JJ., concur.