WHY CAN'T STATE APPEAL MIDTRIAL DWI DECISIONS-GOOD BRIEF

NO. COA08-1555 26TH JUDICIAL DISTRICT

 

NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA)

 

V.

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DEFENDANT



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DEFENDANT-APPELLEE’S BRIEF

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TABLE OF CONTENTS


TABLE OF CASES AND AUTHORITIES iv

QUESTIONS PRESENTED 1

STATEMENT OF THE CASE 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW 2

STATEMENT OF THE FACTS 3

ARGUMENT 4

STANDARD OF REVIEW 5

INTRODUCTION 5

I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION. 6

II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED 13

III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES 18

A. Substantive Due Process 19

B. Procedural Due Process 20

IV. THE TRIAL COURT ERRED IN FINDING THAT N.C. GEN. STAT. § 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES. 22

A. Fundamental Rights 25

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest 26

C. No Rational Basis for Disparate Treatment 30

D. No Legitimate State Interest in Disparate Treatment 32

CONCLUSION 34

CERTIFICATE OF SERVICE 36

APPENDIX 1

N.C.G.S. § 20-38.6(f) 1

N.C.G.S. §§ 20-38.7(a) 1


TABLE OF CASES AND AUTHORITIES

United States Supreme Court Cases

Barrett v. Indiana, 229 U.S. 26, 57 L. Ed. 1050 (1913) 32, 33

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 584, (1972) 21

Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003) 25

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 87 L. Ed. 2d 313 (1985) 26

F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993) 32

Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784 (1984) 32

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995) 9, 10

Romer v. Evans, 517 U.S. 620, 134 L.Ed.2d 855 (1996) 32

U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 37 L.Ed.2d 782 (1973) 32

Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060 (2000) 30

W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 68 L. Ed. 2d 514 (1981) 33



North Carolina Cases

Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259 (2005) 24

Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001) 19, 24, 25

DOT v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999) 15

Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E. 2d 406, (1978) 24

Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954) 16

Ex parte Schenck, 65 N.C. 353 (1871) 9

Peace v. Employment Sec. Comm’n, 349,N.C. 315, 507 S.E.2d 272 (1998) 21

Rhyne v. K-mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004) 8, 20

State v. Biggerstaff, 226 N.C. 603, 39 S.E.2d 619 (1946) 18

State v. Brunson, 327 N.C. 244, 393 S.E.2d 860 (1990) 17

State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005) 19, 20

State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000) 13

State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975) 20

State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005) 15

State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008) 17

State v. Scott, 343 N. C. 313, 471 S.E.2d 605 (1996) 13

State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003) 23

State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984) 27

State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980) 14

State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005) 5

State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992) 12

Stone v. State, ____ N.C. App. ___, 664 S.E.2d 32 (2008) 5

Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980) 31


Other State Cases

Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) 12, 20

Crawford v. State, 881 P.2d 88 (OK Crim. App. 1994) 31

Dinkins v. State, 894 S.W.2d 330 (TX Crim. App. 1995) 31

Ex parte Jenkins, 723 So. 2d 649 (Ala. App. 1998) 11, 20

Ex parte Segrest, 718 So. 2d 1 (Ala. 1998) 10, 11, 20


United States Constitution

U.S. Const. Amend. 14 20, 23


North Carolina Constitution

N.C. Const. Art. I, § 19 20, 23

N.C. Const. Art. I, § 6 7

N.C. Const. Art. IV, § 1 7

N.C. Const. Art. IV, § 12(4) 6

N.C. Const. Art. IV, § 13(2) 7

North Carolina Statutes

N.C. Gen. Stat. § 7A-27(d) 15

N.C. Gen. Stat. § 7A-27(e) 3

N.C. Gen. Stat. § 7A-272 6, 21

N.C. Gen. Stat. § 15A- 979(c) 15

N.C. Gen. Stat. § 15A-1432(a) 17, 30

N.C. Gen. Stat. § 15A-1432(a)(1) 16

N.C. Gen. Stat. § 15A-1432(a)(2) 15

N.C. Gen. Stat. § 15A-1432(e) 2

N.C. Gen. Stat. § 15A-1445(a)(1) 3

N.C. Gen. Stat. § 15A-1445(a)(2) 15, 16

N.C. Gen. Stat. § 15A-1446(a) 3

N.C. Gen. Stat. § 20- 16.2(a1) 5

N.C. Gen. Stat. § 20- 38.1 et seq. 5

N.C. Gen. Stat. § 20- 38.6(f) passim

N.C. Gen. Stat. § 20- 38.7(a) passim

N.C. Gen. Stat. § 20- 38.7(b) 18, 29

N.C. Gen. Stat. § 20-138.1 5


North Carolina Rules of Appellate Procedure

N.C. R. App. P. 10(a) 23

N.C. R. App. P. 10(d) 3

N.C. R. App. P. 28(b)(2) 4

N.C. R. App. P. 28(b)(5) 3

N.C. R. App. P. 28(b)(6) 4, 5

N.C. R. App. P. 28(d)(1)c 5



NO. COA08-1555 26TH JUDICIAL DISTRICT



NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA )

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V. ) From Mecklenburg County

) No. 07 CR 244475

KELLY MANGINO )



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DEFENDANT-APPELLEE’S BRIEF

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QUESTIONS PRESENTED


I. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION?


II. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED?


III. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERR IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGED WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES?


IV. DID THE TRIAL COURT ERR IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES?

STATEMENT OF THE CASE

There are two errors in the caption on the State’s brief. First, because the matter before the Superior Court was the review of a District Court preliminary indication of intent to grant a motion to suppress pursuant to N.C.G.S. § 20-38.7(a), the case number for the matter appealed is 07 CR 244475, not 07 CRS 244475. This is the case number found on the Record on Appeal, the State’s Notice of Appeal, Rp. 64, the cover of the Record on Appeal, and on the Appellate Entries, Rp. 68.

Second, 07 IF 713514 (speeding and exceeding safe speed) are not implied consent offenses and therefore were not subject to review by the Superior Court with respect any motion to suppress filed in District Court pursuant to N.C.G.S. §§ 20-38.6(f) or 20-38.7(a). This matter was not before the Superior Court, and was not listed on the State’s Notice of Appeal, Rp.64, or on the Appellate Entries, Rp. 68.

Other than these corrections, Defendant agrees with the State’s Statement of the Case and adopts them as her own.


STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This matter is before this Court by way of an appeal by the State authorized by N.C.G.S. § 20-38.7(a)in pari materia with N.C.G.S. § 15A-1432(e), which allows the State to appeal to the Appellate Division in implied consent cases where a pre-trial ruling on a motion to dismiss or to suppress will prevent the State from prosecuting the defendant. In addition, N.C.G.S. § 15A-1445(a)(1) allows the State to appeal the dismissal of a charge if jeopardy has not attached. In this case, the ruling of the Superior Court in effect lets stand the preliminary findings of the District Court that no probable cause exists to arrest the Defendant for driving while impaired. Rp. 6.

Defendant has made cross-assignments of error pursuant to N.C. R. App. P. 10(d), (Rp. 78), which allows an appellee to

[c]ross assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis for supporting the judgment order or other determination from which appeal has been taken.


N.C.G.S. § 7A-27(e) authorizes an appeal of right to this Court “[f]rom any other order or judgment of the Superior Court from which an appeal is authorized by statute.” Defendant preserved these assignments of error by way of timely motion pursuant to N.C.G.S. § 15A-1446(a).


STATEMENT OF THE FACTS

Defendant adopts the summary of facts as provided by the State. Defendant agrees with the State that the Superior Court did not conduct an evidentiary hearing in this matter when it ruled as a matter of law granting Defendant’s motion to declare N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) unconstitutional (R pp. 57-67), and any further recitation of the facts would not be “necessary to understand all questions presented for review.” N.C. R. App. P. 28(b)(5).



ARGUMENT

N.C. R. App. P. 28(b)(2) states that the Appellant’s Brief shall contain “a statement of the questions presented for review.” The State’s brief lists only one question:

Did the trial court err in granting Defendant’s motion to dismiss based on constitutional grounds and remanding to the District Court for entry of a final order granting Defendant’s Motion to Suppress when N.C. G.S. §§ 20-38.6(a) and 20-38.7(f) do not violate Defendant’s constitutional rights?


(St. Br. P. 1). In addition, the State’s Brief lists only one argument:

The Trial Court erred in granting Defendant’s motion to dismiss based on constitutional grounds and remanding the case to the District Court for entry of a final order granting Defendant’s motion to suppress when N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) do not violate Defendant’s constitutional rights.


Assignments of Error 1-14 (R pp. 75-77).

The State then proceeds to lay out four separate arguments, labeled “Equal Protection,” (St. Br. P. 8), “Due Process,” (St. Br. p. 16), “Separation of Power Between Branches of Government,” (St. Br. p. 22), and “Interlocutory Appeal,” (St. Br. p. 27). The State’s brief actually presents four separate questions based upon each of the listed arguments, and therefore should have had four questions presented pursuant to N.C. R. App. P. 28(b)(2) with a separate argument for each question presented referencing each specific assignment of error. See N.C. R. App. P. 28(b)(6). Because the State did not do this, Defendant will attempt to lay out the appropriate assignments of error in the respective arguments in her brief.


STANDARD OF REVIEW

The State, in its brief, failed to include a Standard of Review pursuant to N.C. R. App. P. 28(b)(6). However, “[i]t is well settle that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Stone v. State, ____ N.C. App. ___, ___, 664 S.E.2d 32, 36 (2008) (citation omitted); State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

INTRODUCTION

The State failed to attach as an Appendix copies of the relevant statutes, N.C.G.S. §§ 20-38.6(f) and 20-38.7(a)as required pursuant to N.C. R. App. P. 28(d)(1)c. For the sake of clarity, these statutory provisions are attached as Appendix A.

The statutory provisions at issue in this case (hereinafter “the statutes” or “these statutes”) fall within Chapter 20, Article 2D, “Implied Consent Offense Procedures.” N.C.G.S. §§ 20-38.1 – 38.7. These statutes apply only to individuals charged with implied consent offenses, including violation of N.C.G.S. § 20-138.1, driving while impaired, for which Defendant was charged in 07 CR 244475. (Rp. 4) An implied consent offense is defined as “an offense involving impaired driving or an alcohol-related offense made subject to the procedure of this section.” N.C.G.S. § 20-16.2(a1). Although Defendant was also charged with speeding and exceeding safe speed in 07 IF 713514 (Rp. 6), these offenses are not implied consent offenses and do not fall under Chapter 20, Article 2D. The specific statutes at issue in this case are those dictating the mechanism of review when a District Court Judge finds that a defendant’s motion to suppress should be granted in an implied consent case. See Appendix A.


I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION.1


North Carolina Constitution Article IV, § 12(4)states:

The General Assembly shall, by general law uniformly applicable in every local court district of the State, prescribe the jurisdiction and power of the District Courts.


Our Legislature has defined the exclusive original jurisdiction of the District Court in criminal matters to be all criminal actions below the grade of felony. N.C.G.S. § 7A-272. The statutes at issue in this case do not purport to alter the exclusive original jurisdiction of the District Court. They instead alter how certain matters are handled in District Court by preventing the District Court Judge from entering a final order granting a motion to suppress or to dismiss if the State wishes to enter an interlocutory appeal of the District Court Judge’s “preliminary indication” that the motion will be granted. N.C. Gen. Stat. § 20-38.6(f).

The Legislature has the constitutional power to establish trial procedure in the Superior and District Court Divisions:

The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of practice and procedure for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for Superior Court or District Court Divisions.


N.C. Const. Art. IV, § 13(2). In addition,


The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article.


N.C. Const. Art. IV, § 1. Finally, North Carolina’s Constitution contains the following Separation of Power Clause:

The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.


N.C. Const. Art. I, § 6.

These constitutional provisions recognize that the judiciary has certain inherent powers. The inherent power of the judiciary includes the power of a trial court not merely to rule on cases, but to decide them. Our Supreme Court has stated:

The Separation of Powers Clause of our state Constitution provides: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” N.C. Const. art. I, § 6. In tandem with Article I Section 6, the North Carolina Constitution mandates that “the General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.” N.C. Const. art. IV, § 1. Thus, our Constitution shields the judicial branch “‘from legislative interference, so far at least as its inherent rights and powers are concerned.’”


Rhyne v. K-mart Corp., 358 N.C. 160, 168, 594 S.E.2d 1, 8 (2004)(citations omitted).

In Rhyne, the Court upheld a statute limiting the common law right to punitive damages, noting “it is well settled that North Carolina common law ‘may be modified or repealed by the General Assembly, except [for] any parts of the common law which are incorporated in our Constitution.’” Id. at 169, 594 S.E.2d at 8 (citation omitted). Therefore, even if the judicial power to enter a final judgment in a case is a common law right, this right cannot be abridged if it has been incorporated in our Constitution. This is the case under the Separation of Powers Clause. The General Assembly has the power to allot the judicial power and jurisdiction among the various inferior courts. It does not have the power to divest even a trial court of its inherent powers.

Courts of justice are established by the Constitution, and are invested with certain inherent powers, which are essential to their existence, and of which they cannot be deprived by the Legislature.

Their province is to construe existing laws and to administer justice, and they must necessarily have the power by summary remedies to preserve order during their sessions, control the action of their officers, and enforce their mandates and decrees.

If the courts could be deprived by the Legislature of these powers, which are essential in the direct administration of justice, they would be destroyed for all efficient and useful purposes.


Ex parte Schenck, 65 N.C. 353, 366 (1871).

Defendant can find no North Carolina appellate cases addressing whether the inherent powers of a trial court include the power to enter final judgment in a case properly before the trial court. However, other jurisdictions have considered this matter, and have concluded that a trial court does have the inherent power to render a final judgment in a case properly before the court, subject only to review by an appellate court.

In Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995), the United States Supreme Court considered the constitutionality of a statute directing federal courts to re-open a class of cases where the statute of limitations had expired. Writing for the majority, Justice Scalia, when considering the federal Separation of Powers Clause, stated:

The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy – with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.


Id. at 218-219, 131 L.Ed. 2d at 342 (emphasis added). The appellees in Plaut argued that the statute violated the Separation of Powers Clause in Article III § 1 of the United States Constitution as well as the Due Process Clause of the Fifth Amendment to the United States Constitution. Id. at 217, 131 L. Ed. 2d at 342. However, the Court declined to reach the Due Process argument, noting that:

Because the latter submission, if correct, might result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional question in the case, and we therefore consider it first.


Id. at 218, 131 L. Ed. 2d at 341-42 (citation omitted). Justice Scalia’s opinion, however, strongly indicates that the Court would find the right to have a court render a dispositive judgment is a substantive right protected by the Fifth and Fourteenth Amendments to the United States Constitution if presented with the appropriate case from a State Court.

Although the Court in Plaut did not reach the issue of whether Due Process required a court to be able to enter a final judgment, at least two state courts have found that the inherent power of the judiciary includes the power to render a final judgment in cases before the court. In Ex parte Segrest, 718 So. 2d 1 (Ala. 1998), a trial judge sought a writ of mandamus from the Alabama Supreme Court after an intermediate appellate court issued a writ of prohibition against the judge with respect to a contempt proceeding. The Court, in its opinion granting the petition, stated that

[t]he Constitution of Alabama of 1901 vests the judicial power in the Unified Judicial System. Ala. Const. 1901, amend. 328, § 6.01(a). The judicial power, at its core, is the power to render final judgments in cases before the courts.  See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803)(“It is emphatically the province and duty of the judicial department to say what the law is.”); Plaut v. Spendthrist Farm, Inc., 514 U.S. 211, 219, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995)(stating that the Constitution gives the “Judiciary the power, not merely to rule on cases, but to decide them”); Sanders v. Cabaniss, 43 Ala. 173, 177 (1869)(stating that the judicial power requires the exercise of judgment in a case or controversy). Inherent in the constitutional obligation to render final judgments is the power to conduct judicial proceedings in an efficient and effective manner. See Ex parte Wetzel, 243 Ala. 130, 132, 8 So. 2d 824, 825 (1942) (stating that a court has the “inherent power” to punish for contempt); Hall v. Hall, 485 So. 2d 747, 749-50 (Ala. Civ. App. 1986)(stating that the Judiciary’s authority to protect its adjudicatory processes is fundamental to its ability to effectively and efficiently administer justice).

Id. at 5 (footnotes omitted) (emphasis added). See also Ex parte Jenkins, 723 So. 2d 649, 665 (Ala. App. 1998)(quoting and relying on the reasoning of Plaut in finding that a statute attempting to reopen provisions incorporated into paternity judgments that became final before the legislation was enacted “impinge[d] on the core judicial power”).

The Supreme Court of Florida has also recognized that separation of powers requires the courts to not merely rule on a case, but to decide it.

Under the express separation of powers provision in the Florida state constitution, “the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power,” and “the legislature cannot, short of constitutional amendment, reallocate the balance of power expressly delineated in the constitution among the three coequal branches.”  Children A, B, C, D, E & F, 589 So. 2d at 268-9; see also Office of State Attorney v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993)(“[T]he legislature cannot take actions that would undermine the independence of Florida’s judicial . . . offices.”).  As the United States Supreme Court has explained, the power of the judiciary is “not merely to rule on cases, but to decide them, subject to review only by superior courts” and “having achieved finality . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy.” Plaut, 514 U.S. at 227.


Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) (emphasis added).

Plaut, Schiavo and Jenkins all dealt with the issue of reopening a final judgment, which is admittedly different from the issue in the present case.  Nevertheless, in reaching the constitutional basis for invalidating the relevant statutes, the Federal, Alabama, and Florida Courts all recognized the fundamental power of a court to enter a dispositive judgment.

The right to an independent judiciary to enter a final judgment is part and parcel with the criminal defendant’s “fundamental right to a fair trial.” See State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992) (holding improper admission of evidence deprived the defendant of the fundamental right to a fair trial). The statutory scheme at issue here addresses the right of the criminal defendant to challenge the constitutionality of a search or seizure. The ability of a criminal defendant to challenge the reasonableness of a search or seizure under the North Carolina or Federal Constitutions involves “the individual’s right to personal security free from arbitrary interference by law officers.” State v. Scott, 343 N. C. 313, 327, 471 S.E.2d 605, 614 (1996) (citation omitted). Any statute that impairs the ability of a criminal defendant to challenge the reasonableness of a search or seizure therefore interferes with a substantive right. See State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000)(individual’s “liberty interest is substantial”).

Because the statutory scheme at issue here interferes with the ability of the District Court to adjudicate to conclusion a criminal defendant’s substantial rights in implied consent cases, this statutory scheme violates separation of powers.  For this reason, Judge Bell properly found these statutes unconstitutional.


II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED.2


The State argues in its brief that these statutes merely establish a route for interlocutory appeal, and therefore do not deprive the District Court of the power to enter a final judgment. (St. Br. Pp. 27-28) This argument ignores the plain language of N.C Gen. Stat. §20-38.6(f), which specifically prohibits the District Court Judge from entering a final judgment on a motion to suppress where the State decides to appeal the District Court’s “preliminary indication” on the motion to suppress. In other words, this is not an interlocutory order subject to appeal, because no order has been entered from which to appeal. As discussed above, this legislative mandate violates separation of powers. See Argument I, supra.

The State argues that the designation by N.C.G.S. §20-38.6(f) of the decision of the District Court as a “preliminary indicat[ion] that the motion should be granted” as opposed to an order granting the motion to suppress is mere semantics. (St. Br. p. 26) This simply is not the case. N.C. Gen. Stat §20-38.6(f) specifically states that

[i]f the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


Thus, the plain language of the statute prevents the District Court from entering an order that could be the subject of an interlocutory appeal. 

In addition, a ruling on a pretrial motion to suppress is a ruling on a motion in limine and not a final order. State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). If a motion to suppress is granted pretrial, the State may revisit the issue during trial. State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005). At that time, the District Court could reverse its preliminary ruling and allow admission of the evidence.

The State’s appeal of the “preliminary indication” from District Court is clearly interlocutory, because it involves an appeal of a preliminary ruling prior to the entry of final judgment in the controversy. Such piecemeal appeals are discouraged because they lead to unnecessary delay and expense. See Dept. of Transportation v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). In fact, with the exception of the right to appeal created by N.C.G.S. § 20-38.6(f) and 38.7(a), interlocutory appeals to the appellate division are generally not allowed in criminal cases. Cf. N.C.G.S. § 7A-27(d)(allowing interlocutory appeals in four instances in civil cases).

The State cites three statutes to support its proposition that the Legislature can create the right of interlocutory appeal: N.C.G.S. §15A-979(c)(allowing the State to appeal a Superior Court pretrial order granting a motion to dismiss to the appellate division); N.C.G.S. § 15A-1432(a)(2)(allowing the State to appeal the grant of a motion for a new trial on the basis of newly discovered evidence from District to Superior Court); and N.C.G.S. § 15A-1445(a)(2)(allowing the State to appeal the grant of a motion for new trial on the basis of newly discovered evidence from Superior Court to the appellate division). (St. Br. p. 27). Two of these statutes deal with post-trial motions. The third address a final order dismissing a charge. More importantly, all include the identical language “decision or judgment” to describe what the State can appeal.

In the present case, the Superior Court is in effect sitting as an Appellate Court to review an interlocutory “preliminary indication” of the District Court. The Superior Court does not have the entire controversy before it, and if it does take evidence, the Court can do so only for the limited purpose of considering validity of the “preliminary indication.” Further, even if the Superior Court reverses the decision to suppress the evidence, the District Court may still exclude the evidence at trial on other grounds, such as evidentiary objections.

Even if the Legislature can mandate the right of the State to an interlocutory appeal before a final decision or judgment is entered, such an appeal is appropriate only where one party might lose a substantial right if the order is not reviewed before a final judgment. See, e.g., Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954). Defendant concedes that while the grant of a pretrial motion to suppress is subject to revisitation during trial, the State could lose the right of review of a possibly erroneous decision if double jeopardy attached in District Court. See N.C.G.S. § 15A-1432(a)(1) (permitting appeal by the State where the District Court Judge has granted a motion to dismiss, unless the rule against double jeopardy prohibits further prosecution); N.C.G.S. § 15A-1445(a)(2)(prohibiting the State from appealing a decision of the Superior Court to the appellate division where double jeopardy prohibits further prosecution); State v. Brunson, 327 N.C. 244, 249, 393 S.E.2d 860, 864 (1990) (“The rule in North Carolina is that in nonjury trials, jeopardy attaches when the court deigns to hear evidence or testimony”). However, N.C.G.S. §20-38.6(a) requires the defendant in an implied consent case to “move to suppress evidence or dismiss charges only prior to trial.” The only exception to this is where, “during the course of the trial, the defendant discovers facts not previously known, a motion to suppress or dismiss may be made during the trial.” Id. Therefore, the State’s substantive right to review is protected without the need for interlocutory review of a “preliminary indication” in implied consent cases.

In addition, there is no reason that our Legislature could not amend N.C.G.S. § 15A-1432(a) to allow interlocutory appeals by the State in all cases where a District Court Judge has granted a motion to suppress and jeopardy has not attached. In fact, this Court noted that N.C.G.S. § 20-38.6(f) was passed in part to address the issue of double jeopardy. See State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008)(noting that N.C.G.S. §20-38.6(f) was enacted in part to address the attachment of double jeopardy when motions to dismiss were made during trial on implied consent charges in District Court).

Finally, these statutes create piecemeal litigation that prolongs the resolution of the matter. In the present case, Defendant’s potentially dispositive Knoll motion could not be appealed for consideration at the same time the “preliminary indication” on her motion to suppress was reviewed in Superior Court. See N.C.G.S. § 20-38.7(b). In the meantime, her related infraction remains within the jurisdiction of the District Court awaiting the resolution of this matter on appeal. Because theses statutes constitute an improper legislative mandate from a coordinate branch of the government to hear an interlocutory appeal, Judge Bell properly found that these statutes violate N.C. Const. Art. IV, § 1.


III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES.3


CROSS-ASSIGNMENT OF ERROR NO. 1 (Rp. 78)

Conclusion of Law 19, Rp. 60.


The State did not assign error to Conclusions of Law No. 10. This Conclusion of Law is therefore binding on appeal. State v. Biggerstaff, 226 N.C. 603, 604, 39 S.E.2d 619, 620 (1946). The State therefore has conceded that if Judge Bell correctly found there is right to a hearing on a criminal matter to a final judgment, then this right is a fundamental right implicit in the concept of ordered liberty


A. Substantive Due Process

Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process. Substantive due process ensures that the government does not engage in conduct that “shocks the conscience,” or hinder rights “implicit in the concept of ordered liberty[.]” In the event that that the legislation in question meets the requirements of substantive due process, procedural due process “ensures that when government action deprive[s] a person, of life, liberty, or property . . . that action is implemented in a fair manner.”


State v. Bryant, 359 N.C. 554, 563-4, 614 S.E.2d 479, 485 (2005)(citations omitted).

The constitutional inquiry for a violation under either the Due Process Clause of the Fourteenth Amendment or the North Carolina Constitution is identical to that for violations of the Equal Protection Clause. Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001). As discussed below in Argument IV, these statutes fail to pass constitutional muster under the Equal Protection Clause, and therefore do not survive analysis under the Due Process Clause.

As discussed in Argument I, the challenged statutes impair the ability of a District Court Judge to render a final judgment on the defendant’s motion to suppress. Although Justice Scalia in Plaut declined to consider whether this judicial power constitutes a substantive right, other courts have found this power to be a substantive right. See Segrest, 718 So. 2d 1; Jenkins, 723 So. 2d 649; Shiavo, 885 So.2d 321. In addition, the State failed to assign error to Conclusion of Law No. 10, which found this to be a substantive and fundamental right implicit in the concept of ordered liberty. (R. p. 59), citing Bryant, 359 N.C. 554, 614 S.E.2d 479 (citing Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 292 (1937), overruled on other grounds by Benton v. Maryland, 359 U.S. 784, 23 L. Ed. 2d 707 (1969) (addressing whether a statute requiring certain individuals to register as sex offenders afforded defendant adequate notice to comply with the requirements of procedural due process). Where a substantive right exists, that right is protected by U.S. Const. Amend. 14 and by N.C. Const. Art. I, § 19. See Rhyne, 358 N.C. at 180, 358 S.E.2d at 15 (law of the land clause synonymous with due process clause of the Fourteenth Amendment).

Substantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious, and that the law be substantially related to the valid object sought to be obtained.


State v. Joyner, 286 N.C. 366, 371, 211 S.E.2d 320, 323 (1975) (citations omitted). Because a fundamental right is impaired by these statutes, the reasons given by the State as being compelling grounds for depriving individuals charged with implied consent offenses of this right are without merit for the reasons stated below in Argument IV.


B. Procedural Due Process

Even if the right to a final judgment is not a fundamental right, this right has been created by state law. Once a right is created by state law, an individual may not be deprived of that right absent due process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 584, 561 (1972) (property interest created by state law or understandings that secure certain benefits support claims of entitlements to those benefits). Once a right is created, “[p]rocedural due process restricts government actions and decisions which ‘deprive individuals of ‘liberty’ or ‘property’ interests with the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.’” Peace v. Employment Sec. Comm’n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Matthews v. Eldridge, 424 U.S. 319, 332, 47 L.Ed.2d 18, 31 (1976)).

In the case at bar, our Legislature has created the right to have a misdemeanor case tried to final judgment in District Court by granting the District Court exclusive jurisdiction over misdemeanor cases. See N.C.G.S. § 7A-272. As discussed below, the State has articulated no legitimate reason for why an individual charged with an implied consent offense should be deprived of this statutory right. As discussed in Argument II above, any State interest in having a review of the grant of a motion to suppress by a District Court Judge can be met by amending the appropriate statute without depriving the Defendant of the right to a final judgment.

Because there is no legitimate State interest for allowing the State the right to appeal a “preliminary indication” to grant a motion to suppress in an implied consent offense while denying the same right to a defendant when the motion is denied, this statute creates an arbitrary and capricious classification that deprives defendants of a substantive right while affording the same right to the State. Judge Bell’s Conclusion of Law No. 19 that these statutes do not deprive persons charged with implied consent offenses of procedural due process is therefore in error. (Rp. 60).


IV. THE TRIAL COURT ERRED IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES.


CROSS-ASSIGNMENTS OF ERROR NOS. 2-3 (Rp. 78)

Conclusion of Law 20 p. 60

Conclusion of Law 21 p. 604


Judge Bell’s Conclusions of Law 20 and 21 addressed Defendant’s Equal Protection claims. (Rp. 60). As a threshold matter, it should be noted that the State contends that there is a lapsus linguae in the trial court’s order with respect to its findings concerning equal protection. (St. Br. p. 8) In actuality, Judge Bell ruled in favor of the State with respect to the Equal Protection argument. (Conclusions of Law Nos. 20 and 21, Rp. 60). The State cites no statutory authority for challenging Conclusions of Law under such circumstances. In addition, the State failed to assign error to these Conclusions of Law. (R. pp. 75-77). The scope of appellate review is limited to items set out in the assignments of error. N.C. R. App. P. 10(a); State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003). Defendant, however, has cross assigned error to these two Conclusions of Law, and will proceed to address them.

The State in part alleges the lapsus linguae exists because Judge Bell applied a rational relation test in Conclusions of Law Nos. 15 through 17. (St. Br. p. 8, Rp. 60). A review of these assignments of error shows that Judge Bell found no “legitimate grounds” for depriving the Defendant of her right to have an implied consent charge heard to final judgment in District Court. As discussed below, these statutes serve no legitimate State interest and therefore fail to pass muster under the lowest level of constitutional scrutiny, which is the “rational relation” test. If these statutes fail to pass constitutional muster under the less stringent “rational relation” test, then the same statutes will likewise not meet the more stringent requirements of “narrow tailoring to a compelling State interest” that represents the standard of constitutional review for strict scrutiny.

The Equal Protection Clauses of Article 1, § 19 of the North Carolina Constitution and U.S. Const. Amend. 14 forbid the State of North Carolina from denying any person the equal protection of the law. Thus, while substantive due process protects the citizen from arbitrary and irrational laws, equal protection guards against the use of “invidious classification schemes.” Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259, 272 (2005). The Equal Protection Clause “simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 12 (1992)). When determining whether a law violates either of these constitutional provisions, North Carolina Courts apply the same two-part test as the federal courts. Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E.2d 406 (1978). First, the reviewing court must determine which tier of scrutiny must be utilized. Second, the court must determine whether the statute passes the relevant standard of review.

Our Supreme Court recently considered the appropriate standards of review in Rowe, 353 N.C. 671, 549 S.E.2d 203. Strict scrutiny applies when a regulation classifies persons on the basis of certain designated suspect characteristics or when it infringes on the ability of some person to exercise some fundamental right. If a statute requires strict scrutiny, the State must prove that the classification is narrowly tailored to advance a compelling State interest. Other classifications, including gender and illegitimacy, trigger “intermediate scrutiny,” which requires the State to prove a regulation is substantially related to an important government interest. Any other classification is subject to the “rational relation” test, which requires the party challenging the regulation to show that the regulation bears no rational relation to any legitimate government interest. Id. at 675, 549 S.E.2d at 207.


A. Fundamental Rights

As discussed above, a fundamental right is involved in this case –- the right to have a District Court judge enter a final judgment in a matter properly before the court, subject only to appropriate judicial review. Because this fundamental right is inherent in our system of ordered justice, it is not necessary to address the State’s admonition to exercise restraint in recognizing or discovering additional rights. See St. Br. p. 10 (citing Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003)).

The State’s argument that there is no fundamental right at issue is without merit. See St. Br. p. 13. The State incorrectly assumes that the four listed rights in its brief are the only fundamental rights that exist with respect to trial. (St. Br. pp. 10-11). Appellee has never asserted that any of these rights listed by the State -- the right public trial, to notice of specific charges, to confrontation, to effective assistance of counsel, or to speedy trial -- are abridged by these statutes. However, the right to a final judgment is inherent in the concept of separation of powers and ordered liberty, and, as discussed above, is a fundamental right. Accordingly, “strict scrutiny analysis” is appropriate.

A statute will survive strict scrutiny analysis if it is “suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 320 (1985). Similar scrutiny is applied “when the state law impinges on personal rights protected by the constitution.” Id. As discussed below, the State has articulated no compelling interest for interfering with the substantive right to an independent judiciary to enter a final judgment.

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest


In the present case, the State argues the statutes serve legitimate State interests based upon four grounds. (St. Br. p. 14). The State first argues that the statutes “[e]stablish procedures whereby impaired drivers are held accountable for their actions and are kept off the road, both for their safety and for the safety of others.” (St. Br. p. 14). This argument is without merit. The statutes in question do not address the detention of persons while they are actually under the influence of an impairing substance. They instead address the trial procedures for persons charged with implied consent offenses. The procedures in existence before the enactment of these statutes were wholly sufficient to hold drivers charged with implied consent offenses “accountable for their actions.”

Furthermore, before the enactment of this legislation in 2006, District Court Judges were deemed fully capable of entering final rulings and judgments in implied consent offenses without Superior Court oversight. Defendants charged with implied consent offenses were already being held “accountable” for their conduct in cases where the District Court Judge found no violations of the Defendant’s constitutional rights and entered a final judgment based upon his or her finding of guilt beyond a reasonable doubt. Additionally, the State has offered no compelling reason why individuals charged with implied consent offenses must be held accountable for their alleged criminal conduct using a procedure different than that used for individuals charged with non-implied consent offenses.

The State next argues that the statutes serve the purpose of “[e]nsur[ing] that district court determinations on a legal issue during a pre-trial motion to suppress are made after sound legal judgment.” (St. Br. p 14). Assuming this is a legitimate State interest, this argument would apply to any District Court case where the defendant has made a motion to suppress. The State has articulated no reason why implied consent cases should be treated differently than non-implied consent cases. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. Moreover, as the our Supreme Court of North Carolina stated in State v. Smith, 312 N.C. 361, 376, 323 S.E.2d 316,325 (1984):

The State correctly points out that in District Court in North Carolina we have an educated and experienced fact-finder. The District Court Judge presides over hundreds of DWI cases each year.


For the State to argue that District Court Judges cannot be entrusted with such powers in implied consent cases is to unfairly deny the experience and education of these duly elected judges and the soundness of judgments they have rendered for decades.

However, even if there is a compelling State interest in assuring that the grant of a motion to suppress made in District Court is based upon “sound legal judgment,” the procedure fails to meet this aim. First, because there is no record of the testimony taken in District Court, the Superior Court cannot make a determination as to whether the District Court Findings of Fact are based upon competent evidence. Second, because the Superior Court conducts a hearing de novo when the District Court’s Findings of Fact are in dispute, the Superior Court is not reviewing the Findings of Fact and Conclusions of Law of the District Court, but is instead substituting its own Findings of Fact and Conclusions of Law for those of the District Court. In other words, this is not an appeal where the Superior Court reviews the order of the District Court, but is instead a proceeding de novo where the Superior Court takes new evidence and is not bound by any of the Conclusions of Law in the District Court “preliminary indication,” even if they have not been contested by specific assignment of error. Finally, if the issue is to assure “sound legal judgment,” in the decisions of the District Court, this interest would apply whether the decision of the District Court favored the State or the Defendant. The scope of this statute is simply too narrow to achieve such an interest.

The State’s third argument is that the statutes “[c]reate a more efficient process whereby the State can appeal pre-trial determinations in DWI cases while defendants’ rights are not affected.” (St. Br. p. 14). Again, this argument would apply to all criminal cases, not just implied consent offenses. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. In addition, the State fails to explain how a process that halts proceedings in District Court while a “preliminary indication” is appealed to Superior Court is more efficient than having the District Court enter a final order. The facts of the present case point out the inefficiencies of this entire process. Defendant’s set of charges arising from a single incident are currently pending before two courts. Her infraction remains in District Court while her implied consent offense is before this Court. In the meantime, her Knoll motion, which was denied in District Court, could not be appealed to Superior Court at the same time the “preliminary indication” was appealed. See N.C.G.S. § 20-38.7(b) As a result, it is still possible that if the motion to suppress is reversed by the Superior Court and the Defendant pleads guilty or is found guilty of an implied consent offense in District Court and appeals to Superior Court, the Superior Court could ultimately review the Knoll motion de novo and grant the motion. This would render the entire process of review of the District Court “preliminary indication” meaningless, because the Superior Court could find an alternate ground to dismiss the implied consent offense.

Finally, the State argues that the procedure “[a]ssures that the laws are consistently applied throughout the State and allow records of such application in the Superior Court.” (St. Br. p. 14). Again, there is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. If the Legislature wished to afford the State the right to appeal the grant of a pretrial motion to suppress in District Court, it could do so in all cases by amending N.C.G.S. § 15A-1432(a) to allow the State to appeal from the grant of any pretrial motion to suppress.


C. No Rational Basis for Disparate Treatment

These statutes classify similarly situated persons differently without any rational basis for doing so. See Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060(2000)(recognizing that intentional treatment of similarly situated individuals differently where there is no rational basis to do so is a violation of equal protection). In the present case, all persons charged with misdemeanors whose charges fall within the original jurisdiction of the District Court are similarly situated with respect to how their cases are handled in District Court. To classify persons charged with implied consent cases differently from other misdemeanor cases with respect to how they are handled in District Court is to arbitrarily treat this group of defendants differently. The State has provided no legitimate reason for this distinction.

The State’s argument that criminal defendants do not constitute a suspect or quasi-suspect class is without merit with respect to the Equal Protection argument in this case. (St. Br. p. 13, fn. 3) (citing Crawford v. State, 881 P.2d 88, 91 fn.4 (OK Crim. App. 1994); Dinkins v. State, 894 S.W.2d 330, 342 (TX Crim. App. 1995)). First, because the statutes at issue impair a fundamental right, the question of whether the criminal defendant is a suspect class is irrelevant. “Strict scrutiny” is the appropriate standard of review in such cases even where no suspect or quasi-suspect class is involved. See Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142 149 (1980) (holding that strict scrutiny analysis applies when State action deprives an individual of a fundamental right).

Even if no fundamental right is at issue, the question is not whether criminal defendants as a class are a suspect or quasi-suspect class when compared to persons who are not criminal defendants. See St. Br. pp 12-13. The question is whether criminal defendants who are charged with an implied consent offense are treated differently than the State or criminal defendants who are charged with other criminal offenses. As the Supreme Court said in Harris v. McRae, 448 U.S. 297, 322, 65 L. Ed. 2d 784, 808 (1984):

It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless “the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.” McGowan v. Maryland, 366 U.S. at 425.


D. No Legitimate State Interest in Disparate Treatment

Even if these statutes do not impair a “fundamental right” invoking “strict scrutiny” analysis, these statutes still do not pass constitutional muster under the less stringent “rational basis” review. See Romer v. Evans, 517 U.S. 620, 631, 134 L.Ed.2d 855, 865 (1996). The “rational basis” test requires that the classification be rationally related to further a legitimate government interest. U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 533, 37 L.Ed.2d 782, 787 (1973). However,

[t]he legislature is permitted to make a reasonable classification, and before a court can interfere with the exercise of its judgment, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.


Barrett v. Indiana, 229 U.S. 26, 30, 57 L. Ed. 1050, 1052 (1913). Such statutes will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993).

The rational basis test utilizes a two part analysis. The court must determine (1) whether the purpose of the law is legitimate; and (2) whether it was “reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose.” W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 68 L. Ed. 2d 514, 531 (1981). As discussed above, none of the reasons articulated by the State for the enactment of these two statutes constitute a legitimate State interest. Therefore, the statutes do not survive “rational basis” scrutiny with respect to Equal Protection.

Even if the articulated reasons do constitute legitimate reasons for disparate treatment by the State, the statutes are not rationally related to the articulated interest. Such a classification based upon these arguments therefore fails to meet even the rational relationship test. See Barrett v. Indiana, 229 U.S. at 30, 57 L. Ed. at 1052.

The State argues that the mere incidence of alcohol-related traffic fatalities justifies the use of different procedures for handling motions to suppress in such cases. (St. Br. p. 14). The defect in the State’s argument is the presumption that there previously existed an error in the way such motions are handled in District Court. However, the State has presented no evidence that such a problem exists.

The State’s argument that these statutes assure a more efficient procedure for the disposition of DWI cases is likewise without merit. (St. Br. p. 14). The State fails to explain how stopping a District Court proceeding while a Superior Court judge reviews an interlocutory order following a full-blown hearing is either more expeditious or more efficient.

The State’s argument that having a hearing on the record in Superior Court in some way promotes a consistent application of the law throughout the State is also not related to a legitimate State interest. (St. Br. p. 14) The State presumably means that the existence of such a record subjects such decisions to public scrutiny and appellate review. If the existence of a record of the court proceeding were the prerequisite for consistency and oversight, then the placement of recording devices in District Court would be the answer to our State’s drunk driving woes. In addition, such action would apply equally to all criminal cases, and to review of an order denying as well as granting a motion to suppress or to dismiss.

Accordingly, because these statutes achieve no legitimate State purpose, these statutes violate the Equal Protection Clauses of the federal and state Constitutions, and Judge Bell erred by finding that they did not.


CONCLUSION

Judge Bell correctly found that these statutes violate Separation of Powers by stripping the District Court of the power to hear a case to final judgment, and by improperly directing the Superior Court to hear an interlocutory appeal. These statutes also deprive a defendant charged with an implied consent offense of the fundamental right and statutory right to have his or her case tried to a final decision by the District Court. Deprivation of these fundamental and property rights deprives persons charged with implied consent offenses of substantive and procedural due process under the North Carolina and Federal Constitutions. For these reasons, Judge Bell’s Order must be affirmed.

In the alternative, these statutes violate Equal Protection under the North Carolina and Federal Constitutions by drawing arbitrary distinctions between the rights of persons charged with implied consent offenses and those charged with non-implied consent offenses to have their charges tried to a final judgment or decision in District Court without any legitimate State interest in doing so. In addition, these statutes violate Equal Protection by treating differently the way such motions are handled depending on whether District Court Judge intends to enter a judgment on a motion to suppress in favor of the State or of the Defendant without the existence of any legitimate State interest for making this distinction. For these reasons, this Court should reverse the part of Judge Bell’s order finding that N.C.G.S. §§ 20-38.6(f) and 38.7(a) do not violate Equal Protection, and declare the statutes unconstitutional on that ground.


Respectfully submitted, this the 20th day of April, 2009.


__________________________________

Dean P. Loven, Assistant Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870), (704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov



CERTIFICATE OF SERVICE



The undersigned hereby certifies that he served a copy of the foregoing on counsel for the Appellant by depositing a copy, contained in a first-class-postage-paid wrapper, into a depository under the exclusive care and custody of the United States Postal Service, addressed as follows, this the 20th day of April, 2009:


Sebastian Kielmanovich

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602







______________________________

Dean P. Loven

Assistant Public Defender Counsel for Appellee

720 East 4th Street, Suite 308 Charlotte, North Carolina 28202

(704) 347-7870

(704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov Kevin P. Tully

Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870

Kevin.Tully@mecklenburgcountync.gov


Table of Contents for Appendix



Appendix Appearing in

Page brief at

1 N.C. Gen. Stat. § 20-38.6(f) passim


1 N.C. Gen. Stat. § 20-38.7(a) passim



N.C.G.S. § 20-38.6(f)

(f) The judge shall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied. If the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


N.C.G.S. §§ 20-38.7(a))


(a) The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo. Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.



1 Conclusions of Law 1-6 in Judge Bell’s order addressed whether these statutes violate the Separation of Powers provision of the North Carolina Constitution. (Rp. 75). The only two of these Conclusions of Law to which the State assigned error were Conclusions of Law Nos. 5 and 6. (St. Br. p. 75, Assignments of Error 1 and 2).


2 Conclusions of Law 7-9 in Judge Bell’s order addressed whether these statutes create a right to an interlocutory appeal in violation of the North Carolina Constitution. (Rp. 59). The State objected to these Conclusions of Law by way of Assignments of Error Nos. 3, 4 and 5. (Rp. 75).

3 Conclusions of Law 10-19 of Judge Bell’s order address whether these statutes violate Due Process. (Rpp. 59-60). The State assigned errors to Conclusions of Law Nos. 11-18 as Assignments of Error 6-12. (Rpp. 75-76). Defendant cross-assigned error to Conclusion of Law No. 19 (Rp. 78).

4 Appellee’s Cross assignment of error No. 3 incorrectly refers to Conclusion of Law 20 instead of 21, but cites the language from Conclusion of Law 21. Rp. 78.

NO. COA08-1555 26TH JUDICIAL DISTRICT



NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA )

)

V. ) From Mecklenburg County

) No. 07 CR 244475

KELLY MANGINO )



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DEFENDANT-APPELLEE’S BRIEF

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TABLE OF CONTENTS


TABLE OF CASES AND AUTHORITIES iv

QUESTIONS PRESENTED 1

STATEMENT OF THE CASE 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW 2

STATEMENT OF THE FACTS 3

ARGUMENT 4

STANDARD OF REVIEW 5

INTRODUCTION 5

I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION. 6

II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED 13

III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES 18

A. Substantive Due Process 19

B. Procedural Due Process 20

IV. THE TRIAL COURT ERRED IN FINDING THAT N.C. GEN. STAT. § 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES. 22

A. Fundamental Rights 25

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest 26

C. No Rational Basis for Disparate Treatment 30

D. No Legitimate State Interest in Disparate Treatment 32

CONCLUSION 34

CERTIFICATE OF SERVICE 36

APPENDIX 1

N.C.G.S. § 20-38.6(f) 1

N.C.G.S. §§ 20-38.7(a) 1


TABLE OF CASES AND AUTHORITIES

United States Supreme Court Cases

Barrett v. Indiana, 229 U.S. 26, 57 L. Ed. 1050 (1913) 32, 33

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 584, (1972) 21

Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003) 25

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 87 L. Ed. 2d 313 (1985) 26

F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993) 32

Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784 (1984) 32

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995) 9, 10

Romer v. Evans, 517 U.S. 620, 134 L.Ed.2d 855 (1996) 32

U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 37 L.Ed.2d 782 (1973) 32

Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060 (2000) 30

W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 68 L. Ed. 2d 514 (1981) 33



North Carolina Cases

Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259 (2005) 24

Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001) 19, 24, 25

DOT v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999) 15

Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E. 2d 406, (1978) 24

Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954) 16

Ex parte Schenck, 65 N.C. 353 (1871) 9

Peace v. Employment Sec. Comm’n, 349,N.C. 315, 507 S.E.2d 272 (1998) 21

Rhyne v. K-mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004) 8, 20

State v. Biggerstaff, 226 N.C. 603, 39 S.E.2d 619 (1946) 18

State v. Brunson, 327 N.C. 244, 393 S.E.2d 860 (1990) 17

State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005) 19, 20

State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000) 13

State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975) 20

State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005) 15

State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008) 17

State v. Scott, 343 N. C. 313, 471 S.E.2d 605 (1996) 13

State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003) 23

State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984) 27

State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980) 14

State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005) 5

State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992) 12

Stone v. State, ____ N.C. App. ___, 664 S.E.2d 32 (2008) 5

Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980) 31


Other State Cases

Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) 12, 20

Crawford v. State, 881 P.2d 88 (OK Crim. App. 1994) 31

Dinkins v. State, 894 S.W.2d 330 (TX Crim. App. 1995) 31

Ex parte Jenkins, 723 So. 2d 649 (Ala. App. 1998) 11, 20

Ex parte Segrest, 718 So. 2d 1 (Ala. 1998) 10, 11, 20


United States Constitution

U.S. Const. Amend. 14 20, 23


North Carolina Constitution

N.C. Const. Art. I, § 19 20, 23

N.C. Const. Art. I, § 6 7

N.C. Const. Art. IV, § 1 7

N.C. Const. Art. IV, § 12(4) 6

N.C. Const. Art. IV, § 13(2) 7

North Carolina Statutes

N.C. Gen. Stat. § 7A-27(d) 15

N.C. Gen. Stat. § 7A-27(e) 3

N.C. Gen. Stat. § 7A-272 6, 21

N.C. Gen. Stat. § 15A- 979(c) 15

N.C. Gen. Stat. § 15A-1432(a) 17, 30

N.C. Gen. Stat. § 15A-1432(a)(1) 16

N.C. Gen. Stat. § 15A-1432(a)(2) 15

N.C. Gen. Stat. § 15A-1432(e) 2

N.C. Gen. Stat. § 15A-1445(a)(1) 3

N.C. Gen. Stat. § 15A-1445(a)(2) 15, 16

N.C. Gen. Stat. § 15A-1446(a) 3

N.C. Gen. Stat. § 20- 16.2(a1) 5

N.C. Gen. Stat. § 20- 38.1 et seq. 5

N.C. Gen. Stat. § 20- 38.6(f) passim

N.C. Gen. Stat. § 20- 38.7(a) passim

N.C. Gen. Stat. § 20- 38.7(b) 18, 29

N.C. Gen. Stat. § 20-138.1 5


North Carolina Rules of Appellate Procedure

N.C. R. App. P. 10(a) 23

N.C. R. App. P. 10(d) 3

N.C. R. App. P. 28(b)(2) 4

N.C. R. App. P. 28(b)(5) 3

N.C. R. App. P. 28(b)(6) 4, 5

N.C. R. App. P. 28(d)(1)c 5



NO. COA08-1555 26TH JUDICIAL DISTRICT



NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA )

)

V. ) From Mecklenburg County

) No. 07 CR 244475

KELLY MANGINO )



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DEFENDANT-APPELLEE’S BRIEF

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QUESTIONS PRESENTED


I. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION?


II. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED?


III. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERR IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGED WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES?


IV. DID THE TRIAL COURT ERR IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES?

STATEMENT OF THE CASE

There are two errors in the caption on the State’s brief. First, because the matter before the Superior Court was the review of a District Court preliminary indication of intent to grant a motion to suppress pursuant to N.C.G.S. § 20-38.7(a), the case number for the matter appealed is 07 CR 244475, not 07 CRS 244475. This is the case number found on the Record on Appeal, the State’s Notice of Appeal, Rp. 64, the cover of the Record on Appeal, and on the Appellate Entries, Rp. 68.

Second, 07 IF 713514 (speeding and exceeding safe speed) are not implied consent offenses and therefore were not subject to review by the Superior Court with respect any motion to suppress filed in District Court pursuant to N.C.G.S. §§ 20-38.6(f) or 20-38.7(a). This matter was not before the Superior Court, and was not listed on the State’s Notice of Appeal, Rp.64, or on the Appellate Entries, Rp. 68.

Other than these corrections, Defendant agrees with the State’s Statement of the Case and adopts them as her own.


STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This matter is before this Court by way of an appeal by the State authorized by N.C.G.S. § 20-38.7(a)in pari materia with N.C.G.S. § 15A-1432(e), which allows the State to appeal to the Appellate Division in implied consent cases where a pre-trial ruling on a motion to dismiss or to suppress will prevent the State from prosecuting the defendant. In addition, N.C.G.S. § 15A-1445(a)(1) allows the State to appeal the dismissal of a charge if jeopardy has not attached. In this case, the ruling of the Superior Court in effect lets stand the preliminary findings of the District Court that no probable cause exists to arrest the Defendant for driving while impaired. Rp. 6.

Defendant has made cross-assignments of error pursuant to N.C. R. App. P. 10(d), (Rp. 78), which allows an appellee to

[c]ross assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis for supporting the judgment order or other determination from which appeal has been taken.


N.C.G.S. § 7A-27(e) authorizes an appeal of right to this Court “[f]rom any other order or judgment of the Superior Court from which an appeal is authorized by statute.” Defendant preserved these assignments of error by way of timely motion pursuant to N.C.G.S. § 15A-1446(a).


STATEMENT OF THE FACTS

Defendant adopts the summary of facts as provided by the State. Defendant agrees with the State that the Superior Court did not conduct an evidentiary hearing in this matter when it ruled as a matter of law granting Defendant’s motion to declare N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) unconstitutional (R pp. 57-67), and any further recitation of the facts would not be “necessary to understand all questions presented for review.” N.C. R. App. P. 28(b)(5).



ARGUMENT

N.C. R. App. P. 28(b)(2) states that the Appellant’s Brief shall contain “a statement of the questions presented for review.” The State’s brief lists only one question:

Did the trial court err in granting Defendant’s motion to dismiss based on constitutional grounds and remanding to the District Court for entry of a final order granting Defendant’s Motion to Suppress when N.C. G.S. §§ 20-38.6(a) and 20-38.7(f) do not violate Defendant’s constitutional rights?


(St. Br. P. 1). In addition, the State’s Brief lists only one argument:

The Trial Court erred in granting Defendant’s motion to dismiss based on constitutional grounds and remanding the case to the District Court for entry of a final order granting Defendant’s motion to suppress when N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) do not violate Defendant’s constitutional rights.


Assignments of Error 1-14 (R pp. 75-77).

The State then proceeds to lay out four separate arguments, labeled “Equal Protection,” (St. Br. P. 8), “Due Process,” (St. Br. p. 16), “Separation of Power Between Branches of Government,” (St. Br. p. 22), and “Interlocutory Appeal,” (St. Br. p. 27). The State’s brief actually presents four separate questions based upon each of the listed arguments, and therefore should have had four questions presented pursuant to N.C. R. App. P. 28(b)(2) with a separate argument for each question presented referencing each specific assignment of error. See N.C. R. App. P. 28(b)(6). Because the State did not do this, Defendant will attempt to lay out the appropriate assignments of error in the respective arguments in her brief.


STANDARD OF REVIEW

The State, in its brief, failed to include a Standard of Review pursuant to N.C. R. App. P. 28(b)(6). However, “[i]t is well settle that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Stone v. State, ____ N.C. App. ___, ___, 664 S.E.2d 32, 36 (2008) (citation omitted); State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

INTRODUCTION

The State failed to attach as an Appendix copies of the relevant statutes, N.C.G.S. §§ 20-38.6(f) and 20-38.7(a)as required pursuant to N.C. R. App. P. 28(d)(1)c. For the sake of clarity, these statutory provisions are attached as Appendix A.

The statutory provisions at issue in this case (hereinafter “the statutes” or “these statutes”) fall within Chapter 20, Article 2D, “Implied Consent Offense Procedures.” N.C.G.S. §§ 20-38.1 – 38.7. These statutes apply only to individuals charged with implied consent offenses, including violation of N.C.G.S. § 20-138.1, driving while impaired, for which Defendant was charged in 07 CR 244475. (Rp. 4) An implied consent offense is defined as “an offense involving impaired driving or an alcohol-related offense made subject to the procedure of this section.” N.C.G.S. § 20-16.2(a1). Although Defendant was also charged with speeding and exceeding safe speed in 07 IF 713514 (Rp. 6), these offenses are not implied consent offenses and do not fall under Chapter 20, Article 2D. The specific statutes at issue in this case are those dictating the mechanism of review when a District Court Judge finds that a defendant’s motion to suppress should be granted in an implied consent case. See Appendix A.


I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION.1


North Carolina Constitution Article IV, § 12(4)states:

The General Assembly shall, by general law uniformly applicable in every local court district of the State, prescribe the jurisdiction and power of the District Courts.


Our Legislature has defined the exclusive original jurisdiction of the District Court in criminal matters to be all criminal actions below the grade of felony. N.C.G.S. § 7A-272. The statutes at issue in this case do not purport to alter the exclusive original jurisdiction of the District Court. They instead alter how certain matters are handled in District Court by preventing the District Court Judge from entering a final order granting a motion to suppress or to dismiss if the State wishes to enter an interlocutory appeal of the District Court Judge’s “preliminary indication” that the motion will be granted. N.C. Gen. Stat. § 20-38.6(f).

The Legislature has the constitutional power to establish trial procedure in the Superior and District Court Divisions:

The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of practice and procedure for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for Superior Court or District Court Divisions.


N.C. Const. Art. IV, § 13(2). In addition,


The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article.


N.C. Const. Art. IV, § 1. Finally, North Carolina’s Constitution contains the following Separation of Power Clause:

The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.


N.C. Const. Art. I, § 6.

These constitutional provisions recognize that the judiciary has certain inherent powers. The inherent power of the judiciary includes the power of a trial court not merely to rule on cases, but to decide them. Our Supreme Court has stated:

The Separation of Powers Clause of our state Constitution provides: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” N.C. Const. art. I, § 6. In tandem with Article I Section 6, the North Carolina Constitution mandates that “the General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.” N.C. Const. art. IV, § 1. Thus, our Constitution shields the judicial branch “‘from legislative interference, so far at least as its inherent rights and powers are concerned.’”


Rhyne v. K-mart Corp., 358 N.C. 160, 168, 594 S.E.2d 1, 8 (2004)(citations omitted).

In Rhyne, the Court upheld a statute limiting the common law right to punitive damages, noting “it is well settled that North Carolina common law ‘may be modified or repealed by the General Assembly, except [for] any parts of the common law which are incorporated in our Constitution.’” Id. at 169, 594 S.E.2d at 8 (citation omitted). Therefore, even if the judicial power to enter a final judgment in a case is a common law right, this right cannot be abridged if it has been incorporated in our Constitution. This is the case under the Separation of Powers Clause. The General Assembly has the power to allot the judicial power and jurisdiction among the various inferior courts. It does not have the power to divest even a trial court of its inherent powers.

Courts of justice are established by the Constitution, and are invested with certain inherent powers, which are essential to their existence, and of which they cannot be deprived by the Legislature.

Their province is to construe existing laws and to administer justice, and they must necessarily have the power by summary remedies to preserve order during their sessions, control the action of their officers, and enforce their mandates and decrees.

If the courts could be deprived by the Legislature of these powers, which are essential in the direct administration of justice, they would be destroyed for all efficient and useful purposes.


Ex parte Schenck, 65 N.C. 353, 366 (1871).

Defendant can find no North Carolina appellate cases addressing whether the inherent powers of a trial court include the power to enter final judgment in a case properly before the trial court. However, other jurisdictions have considered this matter, and have concluded that a trial court does have the inherent power to render a final judgment in a case properly before the court, subject only to review by an appellate court.

In Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995), the United States Supreme Court considered the constitutionality of a statute directing federal courts to re-open a class of cases where the statute of limitations had expired. Writing for the majority, Justice Scalia, when considering the federal Separation of Powers Clause, stated:

The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy – with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.


Id. at 218-219, 131 L.Ed. 2d at 342 (emphasis added). The appellees in Plaut argued that the statute violated the Separation of Powers Clause in Article III § 1 of the United States Constitution as well as the Due Process Clause of the Fifth Amendment to the United States Constitution. Id. at 217, 131 L. Ed. 2d at 342. However, the Court declined to reach the Due Process argument, noting that:

Because the latter submission, if correct, might result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional question in the case, and we therefore consider it first.


Id. at 218, 131 L. Ed. 2d at 341-42 (citation omitted). Justice Scalia’s opinion, however, strongly indicates that the Court would find the right to have a court render a dispositive judgment is a substantive right protected by the Fifth and Fourteenth Amendments to the United States Constitution if presented with the appropriate case from a State Court.

Although the Court in Plaut did not reach the issue of whether Due Process required a court to be able to enter a final judgment, at least two state courts have found that the inherent power of the judiciary includes the power to render a final judgment in cases before the court. In Ex parte Segrest, 718 So. 2d 1 (Ala. 1998), a trial judge sought a writ of mandamus from the Alabama Supreme Court after an intermediate appellate court issued a writ of prohibition against the judge with respect to a contempt proceeding. The Court, in its opinion granting the petition, stated that

[t]he Constitution of Alabama of 1901 vests the judicial power in the Unified Judicial System. Ala. Const. 1901, amend. 328, § 6.01(a). The judicial power, at its core, is the power to render final judgments in cases before the courts.  See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803)(“It is emphatically the province and duty of the judicial department to say what the law is.”); Plaut v. Spendthrist Farm, Inc., 514 U.S. 211, 219, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995)(stating that the Constitution gives the “Judiciary the power, not merely to rule on cases, but to decide them”); Sanders v. Cabaniss, 43 Ala. 173, 177 (1869)(stating that the judicial power requires the exercise of judgment in a case or controversy). Inherent in the constitutional obligation to render final judgments is the power to conduct judicial proceedings in an efficient and effective manner. See Ex parte Wetzel, 243 Ala. 130, 132, 8 So. 2d 824, 825 (1942) (stating that a court has the “inherent power” to punish for contempt); Hall v. Hall, 485 So. 2d 747, 749-50 (Ala. Civ. App. 1986)(stating that the Judiciary’s authority to protect its adjudicatory processes is fundamental to its ability to effectively and efficiently administer justice).

Id. at 5 (footnotes omitted) (emphasis added). See also Ex parte Jenkins, 723 So. 2d 649, 665 (Ala. App. 1998)(quoting and relying on the reasoning of Plaut in finding that a statute attempting to reopen provisions incorporated into paternity judgments that became final before the legislation was enacted “impinge[d] on the core judicial power”).

The Supreme Court of Florida has also recognized that separation of powers requires the courts to not merely rule on a case, but to decide it.

Under the express separation of powers provision in the Florida state constitution, “the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power,” and “the legislature cannot, short of constitutional amendment, reallocate the balance of power expressly delineated in the constitution among the three coequal branches.”  Children A, B, C, D, E & F, 589 So. 2d at 268-9; see also Office of State Attorney v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993)(“[T]he legislature cannot take actions that would undermine the independence of Florida’s judicial . . . offices.”).  As the United States Supreme Court has explained, the power of the judiciary is “not merely to rule on cases, but to decide them, subject to review only by superior courts” and “having achieved finality . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy.” Plaut, 514 U.S. at 227.


Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) (emphasis added).

Plaut, Schiavo and Jenkins all dealt with the issue of reopening a final judgment, which is admittedly different from the issue in the present case.  Nevertheless, in reaching the constitutional basis for invalidating the relevant statutes, the Federal, Alabama, and Florida Courts all recognized the fundamental power of a court to enter a dispositive judgment.

The right to an independent judiciary to enter a final judgment is part and parcel with the criminal defendant’s “fundamental right to a fair trial.” See State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992) (holding improper admission of evidence deprived the defendant of the fundamental right to a fair trial). The statutory scheme at issue here addresses the right of the criminal defendant to challenge the constitutionality of a search or seizure. The ability of a criminal defendant to challenge the reasonableness of a search or seizure under the North Carolina or Federal Constitutions involves “the individual’s right to personal security free from arbitrary interference by law officers.” State v. Scott, 343 N. C. 313, 327, 471 S.E.2d 605, 614 (1996) (citation omitted). Any statute that impairs the ability of a criminal defendant to challenge the reasonableness of a search or seizure therefore interferes with a substantive right. See State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000)(individual’s “liberty interest is substantial”).

Because the statutory scheme at issue here interferes with the ability of the District Court to adjudicate to conclusion a criminal defendant’s substantial rights in implied consent cases, this statutory scheme violates separation of powers.  For this reason, Judge Bell properly found these statutes unconstitutional.


II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED.2


The State argues in its brief that these statutes merely establish a route for interlocutory appeal, and therefore do not deprive the District Court of the power to enter a final judgment. (St. Br. Pp. 27-28) This argument ignores the plain language of N.C Gen. Stat. §20-38.6(f), which specifically prohibits the District Court Judge from entering a final judgment on a motion to suppress where the State decides to appeal the District Court’s “preliminary indication” on the motion to suppress. In other words, this is not an interlocutory order subject to appeal, because no order has been entered from which to appeal. As discussed above, this legislative mandate violates separation of powers. See Argument I, supra.

The State argues that the designation by N.C.G.S. §20-38.6(f) of the decision of the District Court as a “preliminary indicat[ion] that the motion should be granted” as opposed to an order granting the motion to suppress is mere semantics. (St. Br. p. 26) This simply is not the case. N.C. Gen. Stat §20-38.6(f) specifically states that

[i]f the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


Thus, the plain language of the statute prevents the District Court from entering an order that could be the subject of an interlocutory appeal. 

In addition, a ruling on a pretrial motion to suppress is a ruling on a motion in limine and not a final order. State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). If a motion to suppress is granted pretrial, the State may revisit the issue during trial. State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005). At that time, the District Court could reverse its preliminary ruling and allow admission of the evidence.

The State’s appeal of the “preliminary indication” from District Court is clearly interlocutory, because it involves an appeal of a preliminary ruling prior to the entry of final judgment in the controversy. Such piecemeal appeals are discouraged because they lead to unnecessary delay and expense. See Dept. of Transportation v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). In fact, with the exception of the right to appeal created by N.C.G.S. § 20-38.6(f) and 38.7(a), interlocutory appeals to the appellate division are generally not allowed in criminal cases. Cf. N.C.G.S. § 7A-27(d)(allowing interlocutory appeals in four instances in civil cases).

The State cites three statutes to support its proposition that the Legislature can create the right of interlocutory appeal: N.C.G.S. §15A-979(c)(allowing the State to appeal a Superior Court pretrial order granting a motion to dismiss to the appellate division); N.C.G.S. § 15A-1432(a)(2)(allowing the State to appeal the grant of a motion for a new trial on the basis of newly discovered evidence from District to Superior Court); and N.C.G.S. § 15A-1445(a)(2)(allowing the State to appeal the grant of a motion for new trial on the basis of newly discovered evidence from Superior Court to the appellate division). (St. Br. p. 27). Two of these statutes deal with post-trial motions. The third address a final order dismissing a charge. More importantly, all include the identical language “decision or judgment” to describe what the State can appeal.

In the present case, the Superior Court is in effect sitting as an Appellate Court to review an interlocutory “preliminary indication” of the District Court. The Superior Court does not have the entire controversy before it, and if it does take evidence, the Court can do so only for the limited purpose of considering validity of the “preliminary indication.” Further, even if the Superior Court reverses the decision to suppress the evidence, the District Court may still exclude the evidence at trial on other grounds, such as evidentiary objections.

Even if the Legislature can mandate the right of the State to an interlocutory appeal before a final decision or judgment is entered, such an appeal is appropriate only where one party might lose a substantial right if the order is not reviewed before a final judgment. See, e.g., Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954). Defendant concedes that while the grant of a pretrial motion to suppress is subject to revisitation during trial, the State could lose the right of review of a possibly erroneous decision if double jeopardy attached in District Court. See N.C.G.S. § 15A-1432(a)(1) (permitting appeal by the State where the District Court Judge has granted a motion to dismiss, unless the rule against double jeopardy prohibits further prosecution); N.C.G.S. § 15A-1445(a)(2)(prohibiting the State from appealing a decision of the Superior Court to the appellate division where double jeopardy prohibits further prosecution); State v. Brunson, 327 N.C. 244, 249, 393 S.E.2d 860, 864 (1990) (“The rule in North Carolina is that in nonjury trials, jeopardy attaches when the court deigns to hear evidence or testimony”). However, N.C.G.S. §20-38.6(a) requires the defendant in an implied consent case to “move to suppress evidence or dismiss charges only prior to trial.” The only exception to this is where, “during the course of the trial, the defendant discovers facts not previously known, a motion to suppress or dismiss may be made during the trial.” Id. Therefore, the State’s substantive right to review is protected without the need for interlocutory review of a “preliminary indication” in implied consent cases.

In addition, there is no reason that our Legislature could not amend N.C.G.S. § 15A-1432(a) to allow interlocutory appeals by the State in all cases where a District Court Judge has granted a motion to suppress and jeopardy has not attached. In fact, this Court noted that N.C.G.S. § 20-38.6(f) was passed in part to address the issue of double jeopardy. See State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008)(noting that N.C.G.S. §20-38.6(f) was enacted in part to address the attachment of double jeopardy when motions to dismiss were made during trial on implied consent charges in District Court).

Finally, these statutes create piecemeal litigation that prolongs the resolution of the matter. In the present case, Defendant’s potentially dispositive Knoll motion could not be appealed for consideration at the same time the “preliminary indication” on her motion to suppress was reviewed in Superior Court. See N.C.G.S. § 20-38.7(b). In the meantime, her related infraction remains within the jurisdiction of the District Court awaiting the resolution of this matter on appeal. Because theses statutes constitute an improper legislative mandate from a coordinate branch of the government to hear an interlocutory appeal, Judge Bell properly found that these statutes violate N.C. Const. Art. IV, § 1.


III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES.3


CROSS-ASSIGNMENT OF ERROR NO. 1 (Rp. 78)

Conclusion of Law 19, Rp. 60.


The State did not assign error to Conclusions of Law No. 10. This Conclusion of Law is therefore binding on appeal. State v. Biggerstaff, 226 N.C. 603, 604, 39 S.E.2d 619, 620 (1946). The State therefore has conceded that if Judge Bell correctly found there is right to a hearing on a criminal matter to a final judgment, then this right is a fundamental right implicit in the concept of ordered liberty


A. Substantive Due Process

Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process. Substantive due process ensures that the government does not engage in conduct that “shocks the conscience,” or hinder rights “implicit in the concept of ordered liberty[.]” In the event that that the legislation in question meets the requirements of substantive due process, procedural due process “ensures that when government action deprive[s] a person, of life, liberty, or property . . . that action is implemented in a fair manner.”


State v. Bryant, 359 N.C. 554, 563-4, 614 S.E.2d 479, 485 (2005)(citations omitted).

The constitutional inquiry for a violation under either the Due Process Clause of the Fourteenth Amendment or the North Carolina Constitution is identical to that for violations of the Equal Protection Clause. Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001). As discussed below in Argument IV, these statutes fail to pass constitutional muster under the Equal Protection Clause, and therefore do not survive analysis under the Due Process Clause.

As discussed in Argument I, the challenged statutes impair the ability of a District Court Judge to render a final judgment on the defendant’s motion to suppress. Although Justice Scalia in Plaut declined to consider whether this judicial power constitutes a substantive right, other courts have found this power to be a substantive right. See Segrest, 718 So. 2d 1; Jenkins, 723 So. 2d 649; Shiavo, 885 So.2d 321. In addition, the State failed to assign error to Conclusion of Law No. 10, which found this to be a substantive and fundamental right implicit in the concept of ordered liberty. (R. p. 59), citing Bryant, 359 N.C. 554, 614 S.E.2d 479 (citing Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 292 (1937), overruled on other grounds by Benton v. Maryland, 359 U.S. 784, 23 L. Ed. 2d 707 (1969) (addressing whether a statute requiring certain individuals to register as sex offenders afforded defendant adequate notice to comply with the requirements of procedural due process). Where a substantive right exists, that right is protected by U.S. Const. Amend. 14 and by N.C. Const. Art. I, § 19. See Rhyne, 358 N.C. at 180, 358 S.E.2d at 15 (law of the land clause synonymous with due process clause of the Fourteenth Amendment).

Substantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious, and that the law be substantially related to the valid object sought to be obtained.


State v. Joyner, 286 N.C. 366, 371, 211 S.E.2d 320, 323 (1975) (citations omitted). Because a fundamental right is impaired by these statutes, the reasons given by the State as being compelling grounds for depriving individuals charged with implied consent offenses of this right are without merit for the reasons stated below in Argument IV.


B. Procedural Due Process

Even if the right to a final judgment is not a fundamental right, this right has been created by state law. Once a right is created by state law, an individual may not be deprived of that right absent due process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 584, 561 (1972) (property interest created by state law or understandings that secure certain benefits support claims of entitlements to those benefits). Once a right is created, “[p]rocedural due process restricts government actions and decisions which ‘deprive individuals of ‘liberty’ or ‘property’ interests with the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.’” Peace v. Employment Sec. Comm’n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Matthews v. Eldridge, 424 U.S. 319, 332, 47 L.Ed.2d 18, 31 (1976)).

In the case at bar, our Legislature has created the right to have a misdemeanor case tried to final judgment in District Court by granting the District Court exclusive jurisdiction over misdemeanor cases. See N.C.G.S. § 7A-272. As discussed below, the State has articulated no legitimate reason for why an individual charged with an implied consent offense should be deprived of this statutory right. As discussed in Argument II above, any State interest in having a review of the grant of a motion to suppress by a District Court Judge can be met by amending the appropriate statute without depriving the Defendant of the right to a final judgment.

Because there is no legitimate State interest for allowing the State the right to appeal a “preliminary indication” to grant a motion to suppress in an implied consent offense while denying the same right to a defendant when the motion is denied, this statute creates an arbitrary and capricious classification that deprives defendants of a substantive right while affording the same right to the State. Judge Bell’s Conclusion of Law No. 19 that these statutes do not deprive persons charged with implied consent offenses of procedural due process is therefore in error. (Rp. 60).


IV. THE TRIAL COURT ERRED IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES.


CROSS-ASSIGNMENTS OF ERROR NOS. 2-3 (Rp. 78)

Conclusion of Law 20 p. 60

Conclusion of Law 21 p. 604


Judge Bell’s Conclusions of Law 20 and 21 addressed Defendant’s Equal Protection claims. (Rp. 60). As a threshold matter, it should be noted that the State contends that there is a lapsus linguae in the trial court’s order with respect to its findings concerning equal protection. (St. Br. p. 8) In actuality, Judge Bell ruled in favor of the State with respect to the Equal Protection argument. (Conclusions of Law Nos. 20 and 21, Rp. 60). The State cites no statutory authority for challenging Conclusions of Law under such circumstances. In addition, the State failed to assign error to these Conclusions of Law. (R. pp. 75-77). The scope of appellate review is limited to items set out in the assignments of error. N.C. R. App. P. 10(a); State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003). Defendant, however, has cross assigned error to these two Conclusions of Law, and will proceed to address them.

The State in part alleges the lapsus linguae exists because Judge Bell applied a rational relation test in Conclusions of Law Nos. 15 through 17. (St. Br. p. 8, Rp. 60). A review of these assignments of error shows that Judge Bell found no “legitimate grounds” for depriving the Defendant of her right to have an implied consent charge heard to final judgment in District Court. As discussed below, these statutes serve no legitimate State interest and therefore fail to pass muster under the lowest level of constitutional scrutiny, which is the “rational relation” test. If these statutes fail to pass constitutional muster under the less stringent “rational relation” test, then the same statutes will likewise not meet the more stringent requirements of “narrow tailoring to a compelling State interest” that represents the standard of constitutional review for strict scrutiny.

The Equal Protection Clauses of Article 1, § 19 of the North Carolina Constitution and U.S. Const. Amend. 14 forbid the State of North Carolina from denying any person the equal protection of the law. Thus, while substantive due process protects the citizen from arbitrary and irrational laws, equal protection guards against the use of “invidious classification schemes.” Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259, 272 (2005). The Equal Protection Clause “simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 12 (1992)). When determining whether a law violates either of these constitutional provisions, North Carolina Courts apply the same two-part test as the federal courts. Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E.2d 406 (1978). First, the reviewing court must determine which tier of scrutiny must be utilized. Second, the court must determine whether the statute passes the relevant standard of review.

Our Supreme Court recently considered the appropriate standards of review in Rowe, 353 N.C. 671, 549 S.E.2d 203. Strict scrutiny applies when a regulation classifies persons on the basis of certain designated suspect characteristics or when it infringes on the ability of some person to exercise some fundamental right. If a statute requires strict scrutiny, the State must prove that the classification is narrowly tailored to advance a compelling State interest. Other classifications, including gender and illegitimacy, trigger “intermediate scrutiny,” which requires the State to prove a regulation is substantially related to an important government interest. Any other classification is subject to the “rational relation” test, which requires the party challenging the regulation to show that the regulation bears no rational relation to any legitimate government interest. Id. at 675, 549 S.E.2d at 207.


A. Fundamental Rights

As discussed above, a fundamental right is involved in this case –- the right to have a District Court judge enter a final judgment in a matter properly before the court, subject only to appropriate judicial review. Because this fundamental right is inherent in our system of ordered justice, it is not necessary to address the State’s admonition to exercise restraint in recognizing or discovering additional rights. See St. Br. p. 10 (citing Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003)).

The State’s argument that there is no fundamental right at issue is without merit. See St. Br. p. 13. The State incorrectly assumes that the four listed rights in its brief are the only fundamental rights that exist with respect to trial. (St. Br. pp. 10-11). Appellee has never asserted that any of these rights listed by the State -- the right public trial, to notice of specific charges, to confrontation, to effective assistance of counsel, or to speedy trial -- are abridged by these statutes. However, the right to a final judgment is inherent in the concept of separation of powers and ordered liberty, and, as discussed above, is a fundamental right. Accordingly, “strict scrutiny analysis” is appropriate.

A statute will survive strict scrutiny analysis if it is “suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 320 (1985). Similar scrutiny is applied “when the state law impinges on personal rights protected by the constitution.” Id. As discussed below, the State has articulated no compelling interest for interfering with the substantive right to an independent judiciary to enter a final judgment.

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest


In the present case, the State argues the statutes serve legitimate State interests based upon four grounds. (St. Br. p. 14). The State first argues that the statutes “[e]stablish procedures whereby impaired drivers are held accountable for their actions and are kept off the road, both for their safety and for the safety of others.” (St. Br. p. 14). This argument is without merit. The statutes in question do not address the detention of persons while they are actually under the influence of an impairing substance. They instead address the trial procedures for persons charged with implied consent offenses. The procedures in existence before the enactment of these statutes were wholly sufficient to hold drivers charged with implied consent offenses “accountable for their actions.”

Furthermore, before the enactment of this legislation in 2006, District Court Judges were deemed fully capable of entering final rulings and judgments in implied consent offenses without Superior Court oversight. Defendants charged with implied consent offenses were already being held “accountable” for their conduct in cases where the District Court Judge found no violations of the Defendant’s constitutional rights and entered a final judgment based upon his or her finding of guilt beyond a reasonable doubt. Additionally, the State has offered no compelling reason why individuals charged with implied consent offenses must be held accountable for their alleged criminal conduct using a procedure different than that used for individuals charged with non-implied consent offenses.

The State next argues that the statutes serve the purpose of “[e]nsur[ing] that district court determinations on a legal issue during a pre-trial motion to suppress are made after sound legal judgment.” (St. Br. p 14). Assuming this is a legitimate State interest, this argument would apply to any District Court case where the defendant has made a motion to suppress. The State has articulated no reason why implied consent cases should be treated differently than non-implied consent cases. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. Moreover, as the our Supreme Court of North Carolina stated in State v. Smith, 312 N.C. 361, 376, 323 S.E.2d 316,325 (1984):

The State correctly points out that in District Court in North Carolina we have an educated and experienced fact-finder. The District Court Judge presides over hundreds of DWI cases each year.


For the State to argue that District Court Judges cannot be entrusted with such powers in implied consent cases is to unfairly deny the experience and education of these duly elected judges and the soundness of judgments they have rendered for decades.

However, even if there is a compelling State interest in assuring that the grant of a motion to suppress made in District Court is based upon “sound legal judgment,” the procedure fails to meet this aim. First, because there is no record of the testimony taken in District Court, the Superior Court cannot make a determination as to whether the District Court Findings of Fact are based upon competent evidence. Second, because the Superior Court conducts a hearing de novo when the District Court’s Findings of Fact are in dispute, the Superior Court is not reviewing the Findings of Fact and Conclusions of Law of the District Court, but is instead substituting its own Findings of Fact and Conclusions of Law for those of the District Court. In other words, this is not an appeal where the Superior Court reviews the order of the District Court, but is instead a proceeding de novo where the Superior Court takes new evidence and is not bound by any of the Conclusions of Law in the District Court “preliminary indication,” even if they have not been contested by specific assignment of error. Finally, if the issue is to assure “sound legal judgment,” in the decisions of the District Court, this interest would apply whether the decision of the District Court favored the State or the Defendant. The scope of this statute is simply too narrow to achieve such an interest.

The State’s third argument is that the statutes “[c]reate a more efficient process whereby the State can appeal pre-trial determinations in DWI cases while defendants’ rights are not affected.” (St. Br. p. 14). Again, this argument would apply to all criminal cases, not just implied consent offenses. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. In addition, the State fails to explain how a process that halts proceedings in District Court while a “preliminary indication” is appealed to Superior Court is more efficient than having the District Court enter a final order. The facts of the present case point out the inefficiencies of this entire process. Defendant’s set of charges arising from a single incident are currently pending before two courts. Her infraction remains in District Court while her implied consent offense is before this Court. In the meantime, her Knoll motion, which was denied in District Court, could not be appealed to Superior Court at the same time the “preliminary indication” was appealed. See N.C.G.S. § 20-38.7(b) As a result, it is still possible that if the motion to suppress is reversed by the Superior Court and the Defendant pleads guilty or is found guilty of an implied consent offense in District Court and appeals to Superior Court, the Superior Court could ultimately review the Knoll motion de novo and grant the motion. This would render the entire process of review of the District Court “preliminary indication” meaningless, because the Superior Court could find an alternate ground to dismiss the implied consent offense.

Finally, the State argues that the procedure “[a]ssures that the laws are consistently applied throughout the State and allow records of such application in the Superior Court.” (St. Br. p. 14). Again, there is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. If the Legislature wished to afford the State the right to appeal the grant of a pretrial motion to suppress in District Court, it could do so in all cases by amending N.C.G.S. § 15A-1432(a) to allow the State to appeal from the grant of any pretrial motion to suppress.


C. No Rational Basis for Disparate Treatment

These statutes classify similarly situated persons differently without any rational basis for doing so. See Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060(2000)(recognizing that intentional treatment of similarly situated individuals differently where there is no rational basis to do so is a violation of equal protection). In the present case, all persons charged with misdemeanors whose charges fall within the original jurisdiction of the District Court are similarly situated with respect to how their cases are handled in District Court. To classify persons charged with implied consent cases differently from other misdemeanor cases with respect to how they are handled in District Court is to arbitrarily treat this group of defendants differently. The State has provided no legitimate reason for this distinction.

The State’s argument that criminal defendants do not constitute a suspect or quasi-suspect class is without merit with respect to the Equal Protection argument in this case. (St. Br. p. 13, fn. 3) (citing Crawford v. State, 881 P.2d 88, 91 fn.4 (OK Crim. App. 1994); Dinkins v. State, 894 S.W.2d 330, 342 (TX Crim. App. 1995)). First, because the statutes at issue impair a fundamental right, the question of whether the criminal defendant is a suspect class is irrelevant. “Strict scrutiny” is the appropriate standard of review in such cases even where no suspect or quasi-suspect class is involved. See Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142 149 (1980) (holding that strict scrutiny analysis applies when State action deprives an individual of a fundamental right).

Even if no fundamental right is at issue, the question is not whether criminal defendants as a class are a suspect or quasi-suspect class when compared to persons who are not criminal defendants. See St. Br. pp 12-13. The question is whether criminal defendants who are charged with an implied consent offense are treated differently than the State or criminal defendants who are charged with other criminal offenses. As the Supreme Court said in Harris v. McRae, 448 U.S. 297, 322, 65 L. Ed. 2d 784, 808 (1984):

It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless “the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.” McGowan v. Maryland, 366 U.S. at 425.


D. No Legitimate State Interest in Disparate Treatment

Even if these statutes do not impair a “fundamental right” invoking “strict scrutiny” analysis, these statutes still do not pass constitutional muster under the less stringent “rational basis” review. See Romer v. Evans, 517 U.S. 620, 631, 134 L.Ed.2d 855, 865 (1996). The “rational basis” test requires that the classification be rationally related to further a legitimate government interest. U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 533, 37 L.Ed.2d 782, 787 (1973). However,

[t]he legislature is permitted to make a reasonable classification, and before a court can interfere with the exercise of its judgment, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.


Barrett v. Indiana, 229 U.S. 26, 30, 57 L. Ed. 1050, 1052 (1913). Such statutes will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993).

The rational basis test utilizes a two part analysis. The court must determine (1) whether the purpose of the law is legitimate; and (2) whether it was “reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose.” W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 68 L. Ed. 2d 514, 531 (1981). As discussed above, none of the reasons articulated by the State for the enactment of these two statutes constitute a legitimate State interest. Therefore, the statutes do not survive “rational basis” scrutiny with respect to Equal Protection.

Even if the articulated reasons do constitute legitimate reasons for disparate treatment by the State, the statutes are not rationally related to the articulated interest. Such a classification based upon these arguments therefore fails to meet even the rational relationship test. See Barrett v. Indiana, 229 U.S. at 30, 57 L. Ed. at 1052.

The State argues that the mere incidence of alcohol-related traffic fatalities justifies the use of different procedures for handling motions to suppress in such cases. (St. Br. p. 14). The defect in the State’s argument is the presumption that there previously existed an error in the way such motions are handled in District Court. However, the State has presented no evidence that such a problem exists.

The State’s argument that these statutes assure a more efficient procedure for the disposition of DWI cases is likewise without merit. (St. Br. p. 14). The State fails to explain how stopping a District Court proceeding while a Superior Court judge reviews an interlocutory order following a full-blown hearing is either more expeditious or more efficient.

The State’s argument that having a hearing on the record in Superior Court in some way promotes a consistent application of the law throughout the State is also not related to a legitimate State interest. (St. Br. p. 14) The State presumably means that the existence of such a record subjects such decisions to public scrutiny and appellate review. If the existence of a record of the court proceeding were the prerequisite for consistency and oversight, then the placement of recording devices in District Court would be the answer to our State’s drunk driving woes. In addition, such action would apply equally to all criminal cases, and to review of an order denying as well as granting a motion to suppress or to dismiss.

Accordingly, because these statutes achieve no legitimate State purpose, these statutes violate the Equal Protection Clauses of the federal and state Constitutions, and Judge Bell erred by finding that they did not.


CONCLUSION

Judge Bell correctly found that these statutes violate Separation of Powers by stripping the District Court of the power to hear a case to final judgment, and by improperly directing the Superior Court to hear an interlocutory appeal. These statutes also deprive a defendant charged with an implied consent offense of the fundamental right and statutory right to have his or her case tried to a final decision by the District Court. Deprivation of these fundamental and property rights deprives persons charged with implied consent offenses of substantive and procedural due process under the North Carolina and Federal Constitutions. For these reasons, Judge Bell’s Order must be affirmed.

In the alternative, these statutes violate Equal Protection under the North Carolina and Federal Constitutions by drawing arbitrary distinctions between the rights of persons charged with implied consent offenses and those charged with non-implied consent offenses to have their charges tried to a final judgment or decision in District Court without any legitimate State interest in doing so. In addition, these statutes violate Equal Protection by treating differently the way such motions are handled depending on whether District Court Judge intends to enter a judgment on a motion to suppress in favor of the State or of the Defendant without the existence of any legitimate State interest for making this distinction. For these reasons, this Court should reverse the part of Judge Bell’s order finding that N.C.G.S. §§ 20-38.6(f) and 38.7(a) do not violate Equal Protection, and declare the statutes unconstitutional on that ground.


Respectfully submitted, this the 20th day of April, 2009.


__________________________________

Dean P. Loven, Assistant Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870), (704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov



CERTIFICATE OF SERVICE



The undersigned hereby certifies that he served a copy of the foregoing on counsel for the Appellant by depositing a copy, contained in a first-class-postage-paid wrapper, into a depository under the exclusive care and custody of the United States Postal Service, addressed as follows, this the 20th day of April, 2009:


Sebastian Kielmanovich

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602







______________________________

Dean P. Loven

Assistant Public Defender Counsel for Appellee

720 East 4th Street, Suite 308 Charlotte, North Carolina 28202

(704) 347-7870

(704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov Kevin P. Tully

Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870

Kevin.Tully@mecklenburgcountync.gov


Table of Contents for Appendix



Appendix Appearing in

Page brief at

1 N.C. Gen. Stat. § 20-38.6(f) passim


1 N.C. Gen. Stat. § 20-38.7(a) passim



N.C.G.S. § 20-38.6(f)

(f) The judge shall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied. If the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


N.C.G.S. §§ 20-38.7(a))


(a) The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo. Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.



1 Conclusions of Law 1-6 in Judge Bell’s order addressed whether these statutes violate the Separation of Powers provision of the North Carolina Constitution. (Rp. 75). The only two of these Conclusions of Law to which the State assigned error were Conclusions of Law Nos. 5 and 6. (St. Br. p. 75, Assignments of Error 1 and 2).


2 Conclusions of Law 7-9 in Judge Bell’s order addressed whether these statutes create a right to an interlocutory appeal in violation of the North Carolina Constitution. (Rp. 59). The State objected to these Conclusions of Law by way of Assignments of Error Nos. 3, 4 and 5. (Rp. 75).

3 Conclusions of Law 10-19 of Judge Bell’s order address whether these statutes violate Due Process. (Rpp. 59-60). The State assigned errors to Conclusions of Law Nos. 11-18 as Assignments of Error 6-12. (Rpp. 75-76). Defendant cross-assigned error to Conclusion of Law No. 19 (Rp. 78).

4 Appellee’s Cross assignment of error No. 3 incorrectly refers to Conclusion of Law 20 instead of 21, but cites the language from Conclusion of Law 21. Rp. 78.

NO. COA08-1555 26TH JUDICIAL DISTRICT



NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA )

)

V. ) From Mecklenburg County

) No. 07 CR 244475

KELLY MANGINO )



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DEFENDANT-APPELLEE’S BRIEF

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TABLE OF CONTENTS


TABLE OF CASES AND AUTHORITIES iv

QUESTIONS PRESENTED 1

STATEMENT OF THE CASE 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW 2

STATEMENT OF THE FACTS 3

ARGUMENT 4

STANDARD OF REVIEW 5

INTRODUCTION 5

I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION. 6

II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED 13

III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES 18

A. Substantive Due Process 19

B. Procedural Due Process 20

IV. THE TRIAL COURT ERRED IN FINDING THAT N.C. GEN. STAT. § 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES. 22

A. Fundamental Rights 25

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest 26

C. No Rational Basis for Disparate Treatment 30

D. No Legitimate State Interest in Disparate Treatment 32

CONCLUSION 34

CERTIFICATE OF SERVICE 36

APPENDIX 1

N.C.G.S. § 20-38.6(f) 1

N.C.G.S. §§ 20-38.7(a) 1


TABLE OF CASES AND AUTHORITIES

United States Supreme Court Cases

Barrett v. Indiana, 229 U.S. 26, 57 L. Ed. 1050 (1913) 32, 33

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 584, (1972) 21

Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140 (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003) 25

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 87 L. Ed. 2d 313 (1985) 26

F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993) 32

Harris v. McRae, 448 U.S. 297, 65 L. Ed. 2d 784 (1984) 32

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995) 9, 10

Romer v. Evans, 517 U.S. 620, 134 L.Ed.2d 855 (1996) 32

U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 37 L.Ed.2d 782 (1973) 32

Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060 (2000) 30

W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 68 L. Ed. 2d 514 (1981) 33



North Carolina Cases

Clayton v. Branson, 170 N.C. App. 438, 613 S.E.2d 259 (2005) 24

Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001) 19, 24, 25

DOT v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999) 15

Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E. 2d 406, (1978) 24

Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954) 16

Ex parte Schenck, 65 N.C. 353 (1871) 9

Peace v. Employment Sec. Comm’n, 349,N.C. 315, 507 S.E.2d 272 (1998) 21

Rhyne v. K-mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004) 8, 20

State v. Biggerstaff, 226 N.C. 603, 39 S.E.2d 619 (1946) 18

State v. Brunson, 327 N.C. 244, 393 S.E.2d 860 (1990) 17

State v. Bryant, 359 N.C. 554, 614 S.E.2d 479 (2005) 19, 20

State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000) 13

State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975) 20

State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005) 15

State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008) 17

State v. Scott, 343 N. C. 313, 471 S.E.2d 605 (1996) 13

State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003) 23

State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984) 27

State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980) 14

State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005) 5

State v. White, 331 N.C. 604, 419 S.E.2d 557 (1992) 12

Stone v. State, ____ N.C. App. ___, 664 S.E.2d 32 (2008) 5

Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980) 31


Other State Cases

Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) 12, 20

Crawford v. State, 881 P.2d 88 (OK Crim. App. 1994) 31

Dinkins v. State, 894 S.W.2d 330 (TX Crim. App. 1995) 31

Ex parte Jenkins, 723 So. 2d 649 (Ala. App. 1998) 11, 20

Ex parte Segrest, 718 So. 2d 1 (Ala. 1998) 10, 11, 20


United States Constitution

U.S. Const. Amend. 14 20, 23


North Carolina Constitution

N.C. Const. Art. I, § 19 20, 23

N.C. Const. Art. I, § 6 7

N.C. Const. Art. IV, § 1 7

N.C. Const. Art. IV, § 12(4) 6

N.C. Const. Art. IV, § 13(2) 7

North Carolina Statutes

N.C. Gen. Stat. § 7A-27(d) 15

N.C. Gen. Stat. § 7A-27(e) 3

N.C. Gen. Stat. § 7A-272 6, 21

N.C. Gen. Stat. § 15A- 979(c) 15

N.C. Gen. Stat. § 15A-1432(a) 17, 30

N.C. Gen. Stat. § 15A-1432(a)(1) 16

N.C. Gen. Stat. § 15A-1432(a)(2) 15

N.C. Gen. Stat. § 15A-1432(e) 2

N.C. Gen. Stat. § 15A-1445(a)(1) 3

N.C. Gen. Stat. § 15A-1445(a)(2) 15, 16

N.C. Gen. Stat. § 15A-1446(a) 3

N.C. Gen. Stat. § 20- 16.2(a1) 5

N.C. Gen. Stat. § 20- 38.1 et seq. 5

N.C. Gen. Stat. § 20- 38.6(f) passim

N.C. Gen. Stat. § 20- 38.7(a) passim

N.C. Gen. Stat. § 20- 38.7(b) 18, 29

N.C. Gen. Stat. § 20-138.1 5


North Carolina Rules of Appellate Procedure

N.C. R. App. P. 10(a) 23

N.C. R. App. P. 10(d) 3

N.C. R. App. P. 28(b)(2) 4

N.C. R. App. P. 28(b)(5) 3

N.C. R. App. P. 28(b)(6) 4, 5

N.C. R. App. P. 28(d)(1)c 5



NO. COA08-1555 26TH JUDICIAL DISTRICT



NORTH CAROLINA COURT OF APPEALS


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STATE OF NORTH CAROLINA )

)

V. ) From Mecklenburg County

) No. 07 CR 244475

KELLY MANGINO )



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DEFENDANT-APPELLEE’S BRIEF

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QUESTIONS PRESENTED


I. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION?


II. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED?


III. DID THE SUPERIOR COURT CORRECTLY FIND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERR IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGED WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES?


IV. DID THE TRIAL COURT ERR IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES?

STATEMENT OF THE CASE

There are two errors in the caption on the State’s brief. First, because the matter before the Superior Court was the review of a District Court preliminary indication of intent to grant a motion to suppress pursuant to N.C.G.S. § 20-38.7(a), the case number for the matter appealed is 07 CR 244475, not 07 CRS 244475. This is the case number found on the Record on Appeal, the State’s Notice of Appeal, Rp. 64, the cover of the Record on Appeal, and on the Appellate Entries, Rp. 68.

Second, 07 IF 713514 (speeding and exceeding safe speed) are not implied consent offenses and therefore were not subject to review by the Superior Court with respect any motion to suppress filed in District Court pursuant to N.C.G.S. §§ 20-38.6(f) or 20-38.7(a). This matter was not before the Superior Court, and was not listed on the State’s Notice of Appeal, Rp.64, or on the Appellate Entries, Rp. 68.

Other than these corrections, Defendant agrees with the State’s Statement of the Case and adopts them as her own.


STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This matter is before this Court by way of an appeal by the State authorized by N.C.G.S. § 20-38.7(a)in pari materia with N.C.G.S. § 15A-1432(e), which allows the State to appeal to the Appellate Division in implied consent cases where a pre-trial ruling on a motion to dismiss or to suppress will prevent the State from prosecuting the defendant. In addition, N.C.G.S. § 15A-1445(a)(1) allows the State to appeal the dismissal of a charge if jeopardy has not attached. In this case, the ruling of the Superior Court in effect lets stand the preliminary findings of the District Court that no probable cause exists to arrest the Defendant for driving while impaired. Rp. 6.

Defendant has made cross-assignments of error pursuant to N.C. R. App. P. 10(d), (Rp. 78), which allows an appellee to

[c]ross assign as error any action or omission of the trial court which was properly preserved for appellate review and which deprived the appellee of an alternative basis for supporting the judgment order or other determination from which appeal has been taken.


N.C.G.S. § 7A-27(e) authorizes an appeal of right to this Court “[f]rom any other order or judgment of the Superior Court from which an appeal is authorized by statute.” Defendant preserved these assignments of error by way of timely motion pursuant to N.C.G.S. § 15A-1446(a).


STATEMENT OF THE FACTS

Defendant adopts the summary of facts as provided by the State. Defendant agrees with the State that the Superior Court did not conduct an evidentiary hearing in this matter when it ruled as a matter of law granting Defendant’s motion to declare N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) unconstitutional (R pp. 57-67), and any further recitation of the facts would not be “necessary to understand all questions presented for review.” N.C. R. App. P. 28(b)(5).



ARGUMENT

N.C. R. App. P. 28(b)(2) states that the Appellant’s Brief shall contain “a statement of the questions presented for review.” The State’s brief lists only one question:

Did the trial court err in granting Defendant’s motion to dismiss based on constitutional grounds and remanding to the District Court for entry of a final order granting Defendant’s Motion to Suppress when N.C. G.S. §§ 20-38.6(a) and 20-38.7(f) do not violate Defendant’s constitutional rights?


(St. Br. P. 1). In addition, the State’s Brief lists only one argument:

The Trial Court erred in granting Defendant’s motion to dismiss based on constitutional grounds and remanding the case to the District Court for entry of a final order granting Defendant’s motion to suppress when N.C.G.S. §§ 20-38.6(f) and 20-38.7(a) do not violate Defendant’s constitutional rights.


Assignments of Error 1-14 (R pp. 75-77).

The State then proceeds to lay out four separate arguments, labeled “Equal Protection,” (St. Br. P. 8), “Due Process,” (St. Br. p. 16), “Separation of Power Between Branches of Government,” (St. Br. p. 22), and “Interlocutory Appeal,” (St. Br. p. 27). The State’s brief actually presents four separate questions based upon each of the listed arguments, and therefore should have had four questions presented pursuant to N.C. R. App. P. 28(b)(2) with a separate argument for each question presented referencing each specific assignment of error. See N.C. R. App. P. 28(b)(6). Because the State did not do this, Defendant will attempt to lay out the appropriate assignments of error in the respective arguments in her brief.


STANDARD OF REVIEW

The State, in its brief, failed to include a Standard of Review pursuant to N.C. R. App. P. 28(b)(6). However, “[i]t is well settle that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Stone v. State, ____ N.C. App. ___, ___, 664 S.E.2d 32, 36 (2008) (citation omitted); State v. Thorne, 173 N.C. App. 393, 618 S.E.2d 790 (2005).

INTRODUCTION

The State failed to attach as an Appendix copies of the relevant statutes, N.C.G.S. §§ 20-38.6(f) and 20-38.7(a)as required pursuant to N.C. R. App. P. 28(d)(1)c. For the sake of clarity, these statutory provisions are attached as Appendix A.

The statutory provisions at issue in this case (hereinafter “the statutes” or “these statutes”) fall within Chapter 20, Article 2D, “Implied Consent Offense Procedures.” N.C.G.S. §§ 20-38.1 – 38.7. These statutes apply only to individuals charged with implied consent offenses, including violation of N.C.G.S. § 20-138.1, driving while impaired, for which Defendant was charged in 07 CR 244475. (Rp. 4) An implied consent offense is defined as “an offense involving impaired driving or an alcohol-related offense made subject to the procedure of this section.” N.C.G.S. § 20-16.2(a1). Although Defendant was also charged with speeding and exceeding safe speed in 07 IF 713514 (Rp. 6), these offenses are not implied consent offenses and do not fall under Chapter 20, Article 2D. The specific statutes at issue in this case are those dictating the mechanism of review when a District Court Judge finds that a defendant’s motion to suppress should be granted in an implied consent case. See Appendix A.


I. THE SUPERIOR COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 20-38.7(a) ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE THE SEPARATION OF POWERS PROVISIONS OF THE NORTH CAROLINA CONSTITUTION.1


North Carolina Constitution Article IV, § 12(4)states:

The General Assembly shall, by general law uniformly applicable in every local court district of the State, prescribe the jurisdiction and power of the District Courts.


Our Legislature has defined the exclusive original jurisdiction of the District Court in criminal matters to be all criminal actions below the grade of felony. N.C.G.S. § 7A-272. The statutes at issue in this case do not purport to alter the exclusive original jurisdiction of the District Court. They instead alter how certain matters are handled in District Court by preventing the District Court Judge from entering a final order granting a motion to suppress or to dismiss if the State wishes to enter an interlocutory appeal of the District Court Judge’s “preliminary indication” that the motion will be granted. N.C. Gen. Stat. § 20-38.6(f).

The Legislature has the constitutional power to establish trial procedure in the Superior and District Court Divisions:

The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division. The General Assembly may make rules of practice and procedure for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury. If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for Superior Court or District Court Divisions.


N.C. Const. Art. IV, § 13(2). In addition,


The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article.


N.C. Const. Art. IV, § 1. Finally, North Carolina’s Constitution contains the following Separation of Power Clause:

The legislative, executive and supreme judicial powers of the State government shall be forever separate and distinct from each other.


N.C. Const. Art. I, § 6.

These constitutional provisions recognize that the judiciary has certain inherent powers. The inherent power of the judiciary includes the power of a trial court not merely to rule on cases, but to decide them. Our Supreme Court has stated:

The Separation of Powers Clause of our state Constitution provides: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” N.C. Const. art. I, § 6. In tandem with Article I Section 6, the North Carolina Constitution mandates that “the General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government.” N.C. Const. art. IV, § 1. Thus, our Constitution shields the judicial branch “‘from legislative interference, so far at least as its inherent rights and powers are concerned.’”


Rhyne v. K-mart Corp., 358 N.C. 160, 168, 594 S.E.2d 1, 8 (2004)(citations omitted).

In Rhyne, the Court upheld a statute limiting the common law right to punitive damages, noting “it is well settled that North Carolina common law ‘may be modified or repealed by the General Assembly, except [for] any parts of the common law which are incorporated in our Constitution.’” Id. at 169, 594 S.E.2d at 8 (citation omitted). Therefore, even if the judicial power to enter a final judgment in a case is a common law right, this right cannot be abridged if it has been incorporated in our Constitution. This is the case under the Separation of Powers Clause. The General Assembly has the power to allot the judicial power and jurisdiction among the various inferior courts. It does not have the power to divest even a trial court of its inherent powers.

Courts of justice are established by the Constitution, and are invested with certain inherent powers, which are essential to their existence, and of which they cannot be deprived by the Legislature.

Their province is to construe existing laws and to administer justice, and they must necessarily have the power by summary remedies to preserve order during their sessions, control the action of their officers, and enforce their mandates and decrees.

If the courts could be deprived by the Legislature of these powers, which are essential in the direct administration of justice, they would be destroyed for all efficient and useful purposes.


Ex parte Schenck, 65 N.C. 353, 366 (1871).

Defendant can find no North Carolina appellate cases addressing whether the inherent powers of a trial court include the power to enter final judgment in a case properly before the trial court. However, other jurisdictions have considered this matter, and have concluded that a trial court does have the inherent power to render a final judgment in a case properly before the court, subject only to review by an appellate court.

In Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328 (1995), the United States Supreme Court considered the constitutionality of a statute directing federal courts to re-open a class of cases where the statute of limitations had expired. Writing for the majority, Justice Scalia, when considering the federal Separation of Powers Clause, stated:

The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy – with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.


Id. at 218-219, 131 L.Ed. 2d at 342 (emphasis added). The appellees in Plaut argued that the statute violated the Separation of Powers Clause in Article III § 1 of the United States Constitution as well as the Due Process Clause of the Fifth Amendment to the United States Constitution. Id. at 217, 131 L. Ed. 2d at 342. However, the Court declined to reach the Due Process argument, noting that:

Because the latter submission, if correct, might result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional question in the case, and we therefore consider it first.


Id. at 218, 131 L. Ed. 2d at 341-42 (citation omitted). Justice Scalia’s opinion, however, strongly indicates that the Court would find the right to have a court render a dispositive judgment is a substantive right protected by the Fifth and Fourteenth Amendments to the United States Constitution if presented with the appropriate case from a State Court.

Although the Court in Plaut did not reach the issue of whether Due Process required a court to be able to enter a final judgment, at least two state courts have found that the inherent power of the judiciary includes the power to render a final judgment in cases before the court. In Ex parte Segrest, 718 So. 2d 1 (Ala. 1998), a trial judge sought a writ of mandamus from the Alabama Supreme Court after an intermediate appellate court issued a writ of prohibition against the judge with respect to a contempt proceeding. The Court, in its opinion granting the petition, stated that

[t]he Constitution of Alabama of 1901 vests the judicial power in the Unified Judicial System. Ala. Const. 1901, amend. 328, § 6.01(a). The judicial power, at its core, is the power to render final judgments in cases before the courts.  See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803)(“It is emphatically the province and duty of the judicial department to say what the law is.”); Plaut v. Spendthrist Farm, Inc., 514 U.S. 211, 219, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995)(stating that the Constitution gives the “Judiciary the power, not merely to rule on cases, but to decide them”); Sanders v. Cabaniss, 43 Ala. 173, 177 (1869)(stating that the judicial power requires the exercise of judgment in a case or controversy). Inherent in the constitutional obligation to render final judgments is the power to conduct judicial proceedings in an efficient and effective manner. See Ex parte Wetzel, 243 Ala. 130, 132, 8 So. 2d 824, 825 (1942) (stating that a court has the “inherent power” to punish for contempt); Hall v. Hall, 485 So. 2d 747, 749-50 (Ala. Civ. App. 1986)(stating that the Judiciary’s authority to protect its adjudicatory processes is fundamental to its ability to effectively and efficiently administer justice).

Id. at 5 (footnotes omitted) (emphasis added). See also Ex parte Jenkins, 723 So. 2d 649, 665 (Ala. App. 1998)(quoting and relying on the reasoning of Plaut in finding that a statute attempting to reopen provisions incorporated into paternity judgments that became final before the legislation was enacted “impinge[d] on the core judicial power”).

The Supreme Court of Florida has also recognized that separation of powers requires the courts to not merely rule on a case, but to decide it.

Under the express separation of powers provision in the Florida state constitution, “the judiciary is a coequal branch of the Florida government vested with the sole authority to exercise the judicial power,” and “the legislature cannot, short of constitutional amendment, reallocate the balance of power expressly delineated in the constitution among the three coequal branches.”  Children A, B, C, D, E & F, 589 So. 2d at 268-9; see also Office of State Attorney v. Parrotino, 628 So. 2d 1097, 1099 (Fla. 1993)(“[T]he legislature cannot take actions that would undermine the independence of Florida’s judicial . . . offices.”).  As the United States Supreme Court has explained, the power of the judiciary is “not merely to rule on cases, but to decide them, subject to review only by superior courts” and “having achieved finality . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy.” Plaut, 514 U.S. at 227.


Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) (emphasis added).

Plaut, Schiavo and Jenkins all dealt with the issue of reopening a final judgment, which is admittedly different from the issue in the present case.  Nevertheless, in reaching the constitutional basis for invalidating the relevant statutes, the Federal, Alabama, and Florida Courts all recognized the fundamental power of a court to enter a dispositive judgment.

The right to an independent judiciary to enter a final judgment is part and parcel with the criminal defendant’s “fundamental right to a fair trial.” See State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564 (1992) (holding improper admission of evidence deprived the defendant of the fundamental right to a fair trial). The statutory scheme at issue here addresses the right of the criminal defendant to challenge the constitutionality of a search or seizure. The ability of a criminal defendant to challenge the reasonableness of a search or seizure under the North Carolina or Federal Constitutions involves “the individual’s right to personal security free from arbitrary interference by law officers.” State v. Scott, 343 N. C. 313, 327, 471 S.E.2d 605, 614 (1996) (citation omitted). Any statute that impairs the ability of a criminal defendant to challenge the reasonableness of a search or seizure therefore interferes with a substantive right. See State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000)(individual’s “liberty interest is substantial”).

Because the statutory scheme at issue here interferes with the ability of the District Court to adjudicate to conclusion a criminal defendant’s substantial rights in implied consent cases, this statutory scheme violates separation of powers.  For this reason, Judge Bell properly found these statutes unconstitutional.


II. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) IMPROPERLY AUTHORIZE AN INTERLOCUTORY APPEAL WHERE NO FINAL ORDER HAS BEEN ENTERED AND NO SUBSTANTIAL RIGHT HAS BEEN IMPAIRED.2


The State argues in its brief that these statutes merely establish a route for interlocutory appeal, and therefore do not deprive the District Court of the power to enter a final judgment. (St. Br. Pp. 27-28) This argument ignores the plain language of N.C Gen. Stat. §20-38.6(f), which specifically prohibits the District Court Judge from entering a final judgment on a motion to suppress where the State decides to appeal the District Court’s “preliminary indication” on the motion to suppress. In other words, this is not an interlocutory order subject to appeal, because no order has been entered from which to appeal. As discussed above, this legislative mandate violates separation of powers. See Argument I, supra.

The State argues that the designation by N.C.G.S. §20-38.6(f) of the decision of the District Court as a “preliminary indicat[ion] that the motion should be granted” as opposed to an order granting the motion to suppress is mere semantics. (St. Br. p. 26) This simply is not the case. N.C. Gen. Stat §20-38.6(f) specifically states that

[i]f the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


Thus, the plain language of the statute prevents the District Court from entering an order that could be the subject of an interlocutory appeal. 

In addition, a ruling on a pretrial motion to suppress is a ruling on a motion in limine and not a final order. State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980). If a motion to suppress is granted pretrial, the State may revisit the issue during trial. State v. McNeil, 170 N.C. App. 574, 613 S.E.2d 43 (2005). At that time, the District Court could reverse its preliminary ruling and allow admission of the evidence.

The State’s appeal of the “preliminary indication” from District Court is clearly interlocutory, because it involves an appeal of a preliminary ruling prior to the entry of final judgment in the controversy. Such piecemeal appeals are discouraged because they lead to unnecessary delay and expense. See Dept. of Transportation v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). In fact, with the exception of the right to appeal created by N.C.G.S. § 20-38.6(f) and 38.7(a), interlocutory appeals to the appellate division are generally not allowed in criminal cases. Cf. N.C.G.S. § 7A-27(d)(allowing interlocutory appeals in four instances in civil cases).

The State cites three statutes to support its proposition that the Legislature can create the right of interlocutory appeal: N.C.G.S. §15A-979(c)(allowing the State to appeal a Superior Court pretrial order granting a motion to dismiss to the appellate division); N.C.G.S. § 15A-1432(a)(2)(allowing the State to appeal the grant of a motion for a new trial on the basis of newly discovered evidence from District to Superior Court); and N.C.G.S. § 15A-1445(a)(2)(allowing the State to appeal the grant of a motion for new trial on the basis of newly discovered evidence from Superior Court to the appellate division). (St. Br. p. 27). Two of these statutes deal with post-trial motions. The third address a final order dismissing a charge. More importantly, all include the identical language “decision or judgment” to describe what the State can appeal.

In the present case, the Superior Court is in effect sitting as an Appellate Court to review an interlocutory “preliminary indication” of the District Court. The Superior Court does not have the entire controversy before it, and if it does take evidence, the Court can do so only for the limited purpose of considering validity of the “preliminary indication.” Further, even if the Superior Court reverses the decision to suppress the evidence, the District Court may still exclude the evidence at trial on other grounds, such as evidentiary objections.

Even if the Legislature can mandate the right of the State to an interlocutory appeal before a final decision or judgment is entered, such an appeal is appropriate only where one party might lose a substantial right if the order is not reviewed before a final judgment. See, e.g., Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954). Defendant concedes that while the grant of a pretrial motion to suppress is subject to revisitation during trial, the State could lose the right of review of a possibly erroneous decision if double jeopardy attached in District Court. See N.C.G.S. § 15A-1432(a)(1) (permitting appeal by the State where the District Court Judge has granted a motion to dismiss, unless the rule against double jeopardy prohibits further prosecution); N.C.G.S. § 15A-1445(a)(2)(prohibiting the State from appealing a decision of the Superior Court to the appellate division where double jeopardy prohibits further prosecution); State v. Brunson, 327 N.C. 244, 249, 393 S.E.2d 860, 864 (1990) (“The rule in North Carolina is that in nonjury trials, jeopardy attaches when the court deigns to hear evidence or testimony”). However, N.C.G.S. §20-38.6(a) requires the defendant in an implied consent case to “move to suppress evidence or dismiss charges only prior to trial.” The only exception to this is where, “during the course of the trial, the defendant discovers facts not previously known, a motion to suppress or dismiss may be made during the trial.” Id. Therefore, the State’s substantive right to review is protected without the need for interlocutory review of a “preliminary indication” in implied consent cases.

In addition, there is no reason that our Legislature could not amend N.C.G.S. § 15A-1432(a) to allow interlocutory appeals by the State in all cases where a District Court Judge has granted a motion to suppress and jeopardy has not attached. In fact, this Court noted that N.C.G.S. § 20-38.6(f) was passed in part to address the issue of double jeopardy. See State v. Morgan, ___ N.C. App. ___, 660 S.E.2d 545, disc. rev. denied, ___ N.C.___, 671 S.E.2d 329 (2008)(noting that N.C.G.S. §20-38.6(f) was enacted in part to address the attachment of double jeopardy when motions to dismiss were made during trial on implied consent charges in District Court).

Finally, these statutes create piecemeal litigation that prolongs the resolution of the matter. In the present case, Defendant’s potentially dispositive Knoll motion could not be appealed for consideration at the same time the “preliminary indication” on her motion to suppress was reviewed in Superior Court. See N.C.G.S. § 20-38.7(b). In the meantime, her related infraction remains within the jurisdiction of the District Court awaiting the resolution of this matter on appeal. Because theses statutes constitute an improper legislative mandate from a coordinate branch of the government to hear an interlocutory appeal, Judge Bell properly found that these statutes violate N.C. Const. Art. IV, § 1.


III. THE TRIAL COURT CORRECTLY FOUND THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) VIOLATE SUBSTANTIVE AND PROCEDURAL DUE PROCESS WITH RESPECT TO FUNDAMENTAL RIGHTS, AND ERRED IN FINDING THAT THESE STATUTES DO NOT VIOLATE DUE PROCESS BY DENYING DEFENDANTS CHARGES WITH IMPLIED CONSENT OFFENSES RIGHTS THAT ARE AFFORDED THE STATE OR DEFENDANTS CHARGED WITH NON-IMPLIED CONSENT OFFENSES.3


CROSS-ASSIGNMENT OF ERROR NO. 1 (Rp. 78)

Conclusion of Law 19, Rp. 60.


The State did not assign error to Conclusions of Law No. 10. This Conclusion of Law is therefore binding on appeal. State v. Biggerstaff, 226 N.C. 603, 604, 39 S.E.2d 619, 620 (1946). The State therefore has conceded that if Judge Bell correctly found there is right to a hearing on a criminal matter to a final judgment, then this right is a fundamental right implicit in the concept of ordered liberty


A. Substantive Due Process

Due process has come to provide two types of protection for individuals against improper governmental action, substantive and procedural due process. Substantive due process ensures that the government does not engage in conduct that “shocks the conscience,” or hinder rights “implicit in the concept of ordered liberty[.]” In the event that that the legislation in question meets the requirements of substantive due process, procedural due process “ensures that when government action deprive[s] a person, of life, liberty, or property . . . that action is implemented in a fair manner.”


State v. Bryant, 359 N.C. 554, 563-4, 614 S.E.2d 479, 485 (2005)(citations omitted).

The constitutional inquiry for a violation under either the Due Process Clause of the Fourteenth Amendment or the North Carolina Constitution is identical to that for violations of the Equal Protection Clause. Dept. of Transportation v. Rowe, 353 N.C. 671, 549 S.E.2d 203 (2001). As discussed below in Argument IV, these statutes fail to pass constitutional muster under the Equal Protection Clause, and therefore do not survive analysis under the Due Process Clause.

As discussed in Argument I, the challenged statutes impair the ability of a District Court Judge to render a final judgment on the defendant’s motion to suppress. Although Justice Scalia in Plaut declined to consider whether this judicial power constitutes a substantive right, other courts have found this power to be a substantive right. See Segrest, 718 So. 2d 1; Jenkins, 723 So. 2d 649; Shiavo, 885 So.2d 321. In addition, the State failed to assign error to Conclusion of Law No. 10, which found this to be a substantive and fundamental right implicit in the concept of ordered liberty. (R. p. 59), citing Bryant, 359 N.C. 554, 614 S.E.2d 479 (citing Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 292 (1937), overruled on other grounds by Benton v. Maryland, 359 U.S. 784, 23 L. Ed. 2d 707 (1969) (addressing whether a statute requiring certain individuals to register as sex offenders afforded defendant adequate notice to comply with the requirements of procedural due process). Where a substantive right exists, that right is protected by U.S. Const. Amend. 14 and by N.C. Const. Art. I, § 19. See Rhyne, 358 N.C. at 180, 358 S.E.2d at 15 (law of the land clause synonymous with due process clause of the Fourteenth Amendment).

Substantive due process is a guaranty against arbitrary legislation, demanding that the law shall not be unreasonable, arbitrary or capricious, and that the law be substantially related to the valid object sought to be obtained.


State v. Joyner, 286 N.C. 366, 371, 211 S.E.2d 320, 323 (1975) (citations omitted). Because a fundamental right is impaired by these statutes, the reasons given by the State as being compelling grounds for depriving individuals charged with implied consent offenses of this right are without merit for the reasons stated below in Argument IV.


B. Procedural Due Process

Even if the right to a final judgment is not a fundamental right, this right has been created by state law. Once a right is created by state law, an individual may not be deprived of that right absent due process of law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 584, 561 (1972) (property interest created by state law or understandings that secure certain benefits support claims of entitlements to those benefits). Once a right is created, “[p]rocedural due process restricts government actions and decisions which ‘deprive individuals of ‘liberty’ or ‘property’ interests with the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.’” Peace v. Employment Sec. Comm’n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Matthews v. Eldridge, 424 U.S. 319, 332, 47 L.Ed.2d 18, 31 (1976)).

In the case at bar, our Legislature has created the right to have a misdemeanor case tried to final judgment in District Court by granting the District Court exclusive jurisdiction over misdemeanor cases. See N.C.G.S. § 7A-272. As discussed below, the State has articulated no legitimate reason for why an individual charged with an implied consent offense should be deprived of this statutory right. As discussed in Argument II above, any State interest in having a review of the grant of a motion to suppress by a District Court Judge can be met by amending the appropriate statute without depriving the Defendant of the right to a final judgment.

Because there is no legitimate State interest for allowing the State the right to appeal a “preliminary indication” to grant a motion to suppress in an implied consent offense while denying the same right to a defendant when the motion is denied, this statute creates an arbitrary and capricious classification that deprives defendants of a substantive right while affording the same right to the State. Judge Bell’s Conclusion of Law No. 19 that these statutes do not deprive persons charged with implied consent offenses of procedural due process is therefore in error. (Rp. 60).


IV. THE TRIAL COURT ERRED IN FINDING THAT N.C.G.S. §§ 20-38.6(f) AND 38.7(a) DO NOT VIOLATE EQUAL PROTECTION WHERE THESE STATUTES TREAT INDIVIDUALS ACCUSED OF IMPLIED CONSENT OFFENSES DIFFERENTLY THAN THE STATE AND PERSONS ACCUSED OF OTHER CRIMINAL OFFENSES.


CROSS-ASSIGNMENTS OF ERROR NOS. 2-3 (Rp. 78)

Conclusion of Law 20 p. 60

Conclusion of Law 21 p. 604


Judge Bell’s Conclusions of Law 20 and 21 addressed Defendant’s Equal Protection claims. (Rp. 60). As a threshold matter, it should be noted that the State contends that there is a lapsus linguae in the trial court’s order with respect to its findings concerning equal protection. (St. Br. p. 8) In actuality, Judge Bell ruled in favor of the State with respect to the Equal Protection argument. (Conclusions of Law Nos. 20 and 21, Rp. 60). The State cites no statutory authority for challenging Conclusions of Law under such circumstances. In addition, the State failed to assign error to these Conclusions of Law. (R. pp. 75-77). The scope of appellate review is limited to items set out in the assignments of error. N.C. R. App. P. 10(a); State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003). Defendant, however, has cross assigned error to these two Conclusions of Law, and will proceed to address them.

The State in part alleges the lapsus linguae exists because Judge Bell applied a rational relation test in Conclusions of Law Nos. 15 through 17. (St. Br. p. 8, Rp. 60). A review of these assignments of error shows that Judge Bell found no “legitimate grounds” for depriving the Defendant of her right to have an implied consent charge heard to final judgment in District Court. As discussed below, these statutes serve no legitimate State interest and therefore fail to pass muster under the lowest level of constitutional scrutiny, which is the “rational relation” test. If these statutes fail to pass constitutional muster under the less stringent “rational relation” test, then the same statutes will likewise not meet the more stringent requirements of “narrow tailoring to a compelling State interest” that represents the standard of constitutional review for strict scrutiny.

The Equal Protection Clauses of Article 1, § 19 of the North Carolina Constitution and U.S. Const. Amend. 14 forbid the State of North Carolina from denying any person the equal protection of the law. Thus, while substantive due process protects the citizen from arbitrary and irrational laws, equal protection guards against the use of “invidious classification schemes.” Clayton v. Branson, 170 N.C. App. 438, 457, 613 S.E.2d 259, 272 (2005). The Equal Protection Clause “simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Id. (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 12 (1992)). When determining whether a law violates either of these constitutional provisions, North Carolina Courts apply the same two-part test as the federal courts. Duggins v. N.C. State Bd. of Certified Pub. Accountant Exam’r, 294 N.C. 120, 240 S.E.2d 406 (1978). First, the reviewing court must determine which tier of scrutiny must be utilized. Second, the court must determine whether the statute passes the relevant standard of review.

Our Supreme Court recently considered the appropriate standards of review in Rowe, 353 N.C. 671, 549 S.E.2d 203. Strict scrutiny applies when a regulation classifies persons on the basis of certain designated suspect characteristics or when it infringes on the ability of some person to exercise some fundamental right. If a statute requires strict scrutiny, the State must prove that the classification is narrowly tailored to advance a compelling State interest. Other classifications, including gender and illegitimacy, trigger “intermediate scrutiny,” which requires the State to prove a regulation is substantially related to an important government interest. Any other classification is subject to the “rational relation” test, which requires the party challenging the regulation to show that the regulation bears no rational relation to any legitimate government interest. Id. at 675, 549 S.E.2d at 207.


A. Fundamental Rights

As discussed above, a fundamental right is involved in this case –- the right to have a District Court judge enter a final judgment in a matter properly before the court, subject only to appropriate judicial review. Because this fundamental right is inherent in our system of ordered justice, it is not necessary to address the State’s admonition to exercise restraint in recognizing or discovering additional rights. See St. Br. p. 10 (citing Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003)).

The State’s argument that there is no fundamental right at issue is without merit. See St. Br. p. 13. The State incorrectly assumes that the four listed rights in its brief are the only fundamental rights that exist with respect to trial. (St. Br. pp. 10-11). Appellee has never asserted that any of these rights listed by the State -- the right public trial, to notice of specific charges, to confrontation, to effective assistance of counsel, or to speedy trial -- are abridged by these statutes. However, the right to a final judgment is inherent in the concept of separation of powers and ordered liberty, and, as discussed above, is a fundamental right. Accordingly, “strict scrutiny analysis” is appropriate.

A statute will survive strict scrutiny analysis if it is “suitably tailored to serve a compelling state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 87 L. Ed. 2d 313, 320 (1985). Similar scrutiny is applied “when the state law impinges on personal rights protected by the constitution.” Id. As discussed below, the State has articulated no compelling interest for interfering with the substantive right to an independent judiciary to enter a final judgment.

B. The Statutes are not Narrowly Tailored to Serve a Compelling State Interest


In the present case, the State argues the statutes serve legitimate State interests based upon four grounds. (St. Br. p. 14). The State first argues that the statutes “[e]stablish procedures whereby impaired drivers are held accountable for their actions and are kept off the road, both for their safety and for the safety of others.” (St. Br. p. 14). This argument is without merit. The statutes in question do not address the detention of persons while they are actually under the influence of an impairing substance. They instead address the trial procedures for persons charged with implied consent offenses. The procedures in existence before the enactment of these statutes were wholly sufficient to hold drivers charged with implied consent offenses “accountable for their actions.”

Furthermore, before the enactment of this legislation in 2006, District Court Judges were deemed fully capable of entering final rulings and judgments in implied consent offenses without Superior Court oversight. Defendants charged with implied consent offenses were already being held “accountable” for their conduct in cases where the District Court Judge found no violations of the Defendant’s constitutional rights and entered a final judgment based upon his or her finding of guilt beyond a reasonable doubt. Additionally, the State has offered no compelling reason why individuals charged with implied consent offenses must be held accountable for their alleged criminal conduct using a procedure different than that used for individuals charged with non-implied consent offenses.

The State next argues that the statutes serve the purpose of “[e]nsur[ing] that district court determinations on a legal issue during a pre-trial motion to suppress are made after sound legal judgment.” (St. Br. p 14). Assuming this is a legitimate State interest, this argument would apply to any District Court case where the defendant has made a motion to suppress. The State has articulated no reason why implied consent cases should be treated differently than non-implied consent cases. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. Moreover, as the our Supreme Court of North Carolina stated in State v. Smith, 312 N.C. 361, 376, 323 S.E.2d 316,325 (1984):

The State correctly points out that in District Court in North Carolina we have an educated and experienced fact-finder. The District Court Judge presides over hundreds of DWI cases each year.


For the State to argue that District Court Judges cannot be entrusted with such powers in implied consent cases is to unfairly deny the experience and education of these duly elected judges and the soundness of judgments they have rendered for decades.

However, even if there is a compelling State interest in assuring that the grant of a motion to suppress made in District Court is based upon “sound legal judgment,” the procedure fails to meet this aim. First, because there is no record of the testimony taken in District Court, the Superior Court cannot make a determination as to whether the District Court Findings of Fact are based upon competent evidence. Second, because the Superior Court conducts a hearing de novo when the District Court’s Findings of Fact are in dispute, the Superior Court is not reviewing the Findings of Fact and Conclusions of Law of the District Court, but is instead substituting its own Findings of Fact and Conclusions of Law for those of the District Court. In other words, this is not an appeal where the Superior Court reviews the order of the District Court, but is instead a proceeding de novo where the Superior Court takes new evidence and is not bound by any of the Conclusions of Law in the District Court “preliminary indication,” even if they have not been contested by specific assignment of error. Finally, if the issue is to assure “sound legal judgment,” in the decisions of the District Court, this interest would apply whether the decision of the District Court favored the State or the Defendant. The scope of this statute is simply too narrow to achieve such an interest.

The State’s third argument is that the statutes “[c]reate a more efficient process whereby the State can appeal pre-trial determinations in DWI cases while defendants’ rights are not affected.” (St. Br. p. 14). Again, this argument would apply to all criminal cases, not just implied consent offenses. There is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. In addition, the State fails to explain how a process that halts proceedings in District Court while a “preliminary indication” is appealed to Superior Court is more efficient than having the District Court enter a final order. The facts of the present case point out the inefficiencies of this entire process. Defendant’s set of charges arising from a single incident are currently pending before two courts. Her infraction remains in District Court while her implied consent offense is before this Court. In the meantime, her Knoll motion, which was denied in District Court, could not be appealed to Superior Court at the same time the “preliminary indication” was appealed. See N.C.G.S. § 20-38.7(b) As a result, it is still possible that if the motion to suppress is reversed by the Superior Court and the Defendant pleads guilty or is found guilty of an implied consent offense in District Court and appeals to Superior Court, the Superior Court could ultimately review the Knoll motion de novo and grant the motion. This would render the entire process of review of the District Court “preliminary indication” meaningless, because the Superior Court could find an alternate ground to dismiss the implied consent offense.

Finally, the State argues that the procedure “[a]ssures that the laws are consistently applied throughout the State and allow records of such application in the Superior Court.” (St. Br. p. 14). Again, there is no fair reason for subjecting one group of criminal defendants to this procedure in violation of a fundamental right while exempting another group from the same requirements. If the Legislature wished to afford the State the right to appeal the grant of a pretrial motion to suppress in District Court, it could do so in all cases by amending N.C.G.S. § 15A-1432(a) to allow the State to appeal from the grant of any pretrial motion to suppress.


C. No Rational Basis for Disparate Treatment

These statutes classify similarly situated persons differently without any rational basis for doing so. See Village of Willowbrook v. Olech, 528 U.S. 562, 145 L. Ed. 2d 1060(2000)(recognizing that intentional treatment of similarly situated individuals differently where there is no rational basis to do so is a violation of equal protection). In the present case, all persons charged with misdemeanors whose charges fall within the original jurisdiction of the District Court are similarly situated with respect to how their cases are handled in District Court. To classify persons charged with implied consent cases differently from other misdemeanor cases with respect to how they are handled in District Court is to arbitrarily treat this group of defendants differently. The State has provided no legitimate reason for this distinction.

The State’s argument that criminal defendants do not constitute a suspect or quasi-suspect class is without merit with respect to the Equal Protection argument in this case. (St. Br. p. 13, fn. 3) (citing Crawford v. State, 881 P.2d 88, 91 fn.4 (OK Crim. App. 1994); Dinkins v. State, 894 S.W.2d 330, 342 (TX Crim. App. 1995)). First, because the statutes at issue impair a fundamental right, the question of whether the criminal defendant is a suspect class is irrelevant. “Strict scrutiny” is the appropriate standard of review in such cases even where no suspect or quasi-suspect class is involved. See Texfi Indus. Inc. v. City of Fayetteville, 301 N.C. 1, 11, 269 S.E.2d 142 149 (1980) (holding that strict scrutiny analysis applies when State action deprives an individual of a fundamental right).

Even if no fundamental right is at issue, the question is not whether criminal defendants as a class are a suspect or quasi-suspect class when compared to persons who are not criminal defendants. See St. Br. pp 12-13. The question is whether criminal defendants who are charged with an implied consent offense are treated differently than the State or criminal defendants who are charged with other criminal offenses. As the Supreme Court said in Harris v. McRae, 448 U.S. 297, 322, 65 L. Ed. 2d 784, 808 (1984):

It is well settled that where a statutory classification does not itself impinge on a right or liberty protected by the Constitution, the validity of classification must be sustained unless “the classification rests on grounds wholly irrelevant to the achievement of [any legitimate governmental] objective.” McGowan v. Maryland, 366 U.S. at 425.


D. No Legitimate State Interest in Disparate Treatment

Even if these statutes do not impair a “fundamental right” invoking “strict scrutiny” analysis, these statutes still do not pass constitutional muster under the less stringent “rational basis” review. See Romer v. Evans, 517 U.S. 620, 631, 134 L.Ed.2d 855, 865 (1996). The “rational basis” test requires that the classification be rationally related to further a legitimate government interest. U.S. Dep’t of Agric. v. Moreno, 413 U.S.528, 533, 37 L.Ed.2d 782, 787 (1973). However,

[t]he legislature is permitted to make a reasonable classification, and before a court can interfere with the exercise of its judgment, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.


Barrett v. Indiana, 229 U.S. 26, 30, 57 L. Ed. 1050, 1052 (1913). Such statutes will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Communications, 508 U.S. 307, 124 L. Ed. 2d 211 (1993).

The rational basis test utilizes a two part analysis. The court must determine (1) whether the purpose of the law is legitimate; and (2) whether it was “reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose.” W. & S. Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 668, 68 L. Ed. 2d 514, 531 (1981). As discussed above, none of the reasons articulated by the State for the enactment of these two statutes constitute a legitimate State interest. Therefore, the statutes do not survive “rational basis” scrutiny with respect to Equal Protection.

Even if the articulated reasons do constitute legitimate reasons for disparate treatment by the State, the statutes are not rationally related to the articulated interest. Such a classification based upon these arguments therefore fails to meet even the rational relationship test. See Barrett v. Indiana, 229 U.S. at 30, 57 L. Ed. at 1052.

The State argues that the mere incidence of alcohol-related traffic fatalities justifies the use of different procedures for handling motions to suppress in such cases. (St. Br. p. 14). The defect in the State’s argument is the presumption that there previously existed an error in the way such motions are handled in District Court. However, the State has presented no evidence that such a problem exists.

The State’s argument that these statutes assure a more efficient procedure for the disposition of DWI cases is likewise without merit. (St. Br. p. 14). The State fails to explain how stopping a District Court proceeding while a Superior Court judge reviews an interlocutory order following a full-blown hearing is either more expeditious or more efficient.

The State’s argument that having a hearing on the record in Superior Court in some way promotes a consistent application of the law throughout the State is also not related to a legitimate State interest. (St. Br. p. 14) The State presumably means that the existence of such a record subjects such decisions to public scrutiny and appellate review. If the existence of a record of the court proceeding were the prerequisite for consistency and oversight, then the placement of recording devices in District Court would be the answer to our State’s drunk driving woes. In addition, such action would apply equally to all criminal cases, and to review of an order denying as well as granting a motion to suppress or to dismiss.

Accordingly, because these statutes achieve no legitimate State purpose, these statutes violate the Equal Protection Clauses of the federal and state Constitutions, and Judge Bell erred by finding that they did not.


CONCLUSION

Judge Bell correctly found that these statutes violate Separation of Powers by stripping the District Court of the power to hear a case to final judgment, and by improperly directing the Superior Court to hear an interlocutory appeal. These statutes also deprive a defendant charged with an implied consent offense of the fundamental right and statutory right to have his or her case tried to a final decision by the District Court. Deprivation of these fundamental and property rights deprives persons charged with implied consent offenses of substantive and procedural due process under the North Carolina and Federal Constitutions. For these reasons, Judge Bell’s Order must be affirmed.

In the alternative, these statutes violate Equal Protection under the North Carolina and Federal Constitutions by drawing arbitrary distinctions between the rights of persons charged with implied consent offenses and those charged with non-implied consent offenses to have their charges tried to a final judgment or decision in District Court without any legitimate State interest in doing so. In addition, these statutes violate Equal Protection by treating differently the way such motions are handled depending on whether District Court Judge intends to enter a judgment on a motion to suppress in favor of the State or of the Defendant without the existence of any legitimate State interest for making this distinction. For these reasons, this Court should reverse the part of Judge Bell’s order finding that N.C.G.S. §§ 20-38.6(f) and 38.7(a) do not violate Equal Protection, and declare the statutes unconstitutional on that ground.


Respectfully submitted, this the 20th day of April, 2009.


__________________________________

Dean P. Loven, Assistant Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870), (704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov



CERTIFICATE OF SERVICE



The undersigned hereby certifies that he served a copy of the foregoing on counsel for the Appellant by depositing a copy, contained in a first-class-postage-paid wrapper, into a depository under the exclusive care and custody of the United States Postal Service, addressed as follows, this the 20th day of April, 2009:


Sebastian Kielmanovich

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602







______________________________

Dean P. Loven

Assistant Public Defender Counsel for Appellee

720 East 4th Street, Suite 308 Charlotte, North Carolina 28202

(704) 347-7870

(704) 347-2358 (direct)

Dean.Loven@mecklenburgcountync.gov Kevin P. Tully

Public Defender

720 East 4th Street, Suite 308

Charlotte, North Carolina 28202

(704) 347-7870

Kevin.Tully@mecklenburgcountync.gov


Table of Contents for Appendix



Appendix Appearing in

Page brief at

1 N.C. Gen. Stat. § 20-38.6(f) passim


1 N.C. Gen. Stat. § 20-38.7(a) passim



N.C.G.S. § 20-38.6(f)

(f) The judge shall set forth in writing the findings of fact and conclusions of law and preliminarily indicate whether the motion should be granted or denied. If the judge preliminarily indicates the motion should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal.


N.C.G.S. §§ 20-38.7(a))


(a) The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo. Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.



1 Conclusions of Law 1-6 in Judge Bell’s order addressed whether these statutes violate the Separation of Powers provision of the North Carolina Constitution. (Rp. 75). The only two of these Conclusions of Law to which the State assigned error were Conclusions of Law Nos. 5 and 6. (St. Br. p. 75, Assignments of Error 1 and 2).


2 Conclusions of Law 7-9 in Judge Bell’s order addressed whether these statutes create a right to an interlocutory appeal in violation of the North Carolina Constitution. (Rp. 59). The State objected to these Conclusions of Law by way of Assignments of Error Nos. 3, 4 and 5. (Rp. 75).

3 Conclusions of Law 10-19 of Judge Bell’s order address whether these statutes violate Due Process. (Rpp. 59-60). The State assigned errors to Conclusions of Law Nos. 11-18 as Assignments of Error 6-12. (Rpp. 75-76). Defendant cross-assigned error to Conclusion of Law No. 19 (Rp. 78).

4Appellee’s Cross assignment of error No. 3 incorrectly refers to Conclusion of Law 20 instead of 21, but cites the language from Conclusion of Law 21. Rp. 78.