Defendant, Walter Ferguson was convicted of driving while impaired in violation of N.C.Gen.Stat.Sec. 20-138.1 (1983) and was sentenced to thirty days in jail which was to be suspended upon completion of the Alcohol and Drug Education Traffic School and upon payment of a $100 fine. Defendant appeals. We vacate the judgment and remand for findings of fact and conclusions of law consistent with this opinion.
The State presented evidence that on 2 November 1986, defendant's automobile was observed on highway U.S. 74 in Mecklenburg County at approximately 6:45 p.m. by State Trooper A.J. Fox. Trooper Fox testified that defendant was proceeding ahead of him at a speed of 35 m.p.h., although the maximum speed on the highway was 55 m.p.h. He observed that the car traveled left of the center line several times, then traveled off the road onto the right shoulder. Trooper Fox activated his blue light; defendant proceeded for another half mile, then stopped. Trooper Fox approached the vehicle and found defendant alone in the car behind the steering wheel, his eyes blood shot, and his pupils dilated. When defendant spoke, he emitted a strong odor of alcohol, and his speech was slurred. Upon the trooper's request, and after some searching, defendant presented his driver's license and registration card. Also upon the Trooper's request, defendant performed two sobriety tests. The first test—known as the gaze test—required the defendant to follow the trooper's fountain pen with his eyes as the pen was moved in front of his face. The second test—known as the sway test—required defendant to stand with his feet together, hands to his side, eyes closed and head tilted back as the trooper observed his balance. Trooper Fox testified that defendant lost his balance and swayed from side to side. He then arrested defendant and transported him to the magistrate's office.
At the magistrate's office, defendant performed another sobriety test which required him to close his eyes and touch his nose with his index finger. When using his right hand, he touched underneath his nose. When using his left hand, he touched the right side of his right nostril with the second joint of his finger. In another test, he was asked to stand on one leg and count to 30. He did so and proceeded to count to 44. In another test, he was asked to walk in a straight line by placing one foot directly in front of the other. Defendant crossed over his feet, stepped on the in-steps of his feet, and swayed from side to side. The trooper then read defendant his Fifth Amendment rights and his rights under N.C.Gen.Stat. Sec. 20-16.2 regarding the breathalyzer test. Defendant telephoned his wife but, the trooper testified, she did not arrive within the required 30 minutes to witness the test. Trooper Fox stated that in his opinion, defendant was under the influence of an impairing substance.
Defendant testified that the trooper advised him of his right to have a witness to observe the breathalyzer test. After a delay, he reached his wife on the telephone, and the police told him that she must arrive within twenty minutes. He informed his wife of the time constraints. The police informed him when the 20 minutes expired,
He testified further that he was driving normally before Trooper Fox stopped him. He admitted that he consumed five beers between 3:00 p.m. and 6:15 p.m. at the Charlotte Airport Motel. He testified that the only sobriety test conducted at the scene of his arrest was the gaze test. He stated that he performed correctly all of the tests administered at the jail. He saw his wife when he was released from jail later that evening. She told him she had been waiting for one and one half hours.
Defendant's wife, Judy Ferguson, also testified on his behalf. She stated that her husband telephoned her after 8:00 p.m. on the night of his arrest. In her opinion, his speech was not slurred, consequently, she had trouble taking him seriously when he asked her to come to the jail. She and her daughter drove immediately to the county jail and arrived within 20 minutes. She told the law enforcement personnel at the desk that she came to witness her husband's breathalyzer test. One woman told her it was too late, that he had already refused the breathalyzer test. No one made any further inquiries. Mrs. Ferguson and her daughter sat in the waiting area for approximately one and one half hours. Then defendant came out.
Defendant first contends that the trial judge erred by denying his motion to dismiss because he was denied his constitutional and statutory rights of access to a witness to observe the breathalyzer test. This argument by defendant is three fold. Defendant presented evidence that (1) his wife may have arrived within the time required for a witness to the breathalyzer test under Section 20-16.2, (2) his wife was implicitly denied access to him upon her arrival to the jail, and (3) he was denied the opportunity to take the breathalyzer test in the presence of his chosen witness and thereby to obtain evidence for his defense. N.C.Gen.Stat.Sec. 15A-954(a) provides in pertinent part that a trial court "must dismiss the charges stated in a criminal pleading if it determines that.... (4) [t]he defendant's constitutional rights have been flagarantly violated and there is irreparable prejudice to the defendant's preparation of his case...." (emphasis added) In the instant case, the trial judge did not make any findings of fact or conclusions of law regarding these alleged statutory and constitutional violations. Rather, the following colloquy occurred.
MR. PLUMIDES: Our Magistrates are concealed behind some windows. You have to knock on the window and hope someone will come answer. We don't have a Magistrate's accessible to us, where, like you do in Asheville, somebody is sitting behind a desk. The only Magistrate available in this court, you have to go here [sic] 9:00 to 5:00 and see about getting a warrant. A little different setup. I don't know if it's good or bad.
A trial judge's "distress" over the circumstances surrounding a defendant's arrest are of little comfort when not coupled with an application of the relevant law. Nor can the criminal justice system rely on the hope that the local Bar will take measures to ensure the rights of criminal defendants. We therefore remand this case for entry of required findings of fact and conclusions of law regarding the alleged constitutional and statutory violations.
If, on remand, the trial judge finds and concludes that none of defendant's statutory or constitutional rights have been violated then an appropriate judgment should be entered. If, on the other hand, the trial judge should find that Mrs. Ferguson's arrival to the jail was timely and she made reasonable efforts to gain access to defendant, then defendant was denied access to a potential witness. The denial of access to a witness in this case—when the State's sole evidence of the offense is the personal observations of the authorities—would constitute a flagrant violation of defendant's constitutional right to obtain witnesses under N.C. Const. Art. I Sec. 23 as a matter of law and would require that the charges be dismissed. Cf. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971) (defendant's attorney was denied access to defendant after posting bail and asking the jailer to see him. The Court held, because time is of the essence when one is taken into police custody for an offense of which intoxication is an essential element, defendant was unconstitutionally denied the opportunity to confront the State's witnesses with other testimony).
We have considered defendant's three remaining assignments of error and find them to be without merit.
We vacate the judgment and remand for further findings of fact consistent with this opinion.
JOHNSON and GREENE, JJ., concur.