NO. COA13-1382

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. New Hanover County

No. 12CRS003101

STEPHEN ANTHONY GRANGER,

Defendant.

Appeal by Defendant from judgments entered 22 August 2013

by Judge William R. Pittman in New Hanover County Superior 

Court. Heard in the Court of Appeals on 24 April 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney 

General Joseph L. Hyde, for the State.

Kerri L. Sigler, for Defendant-appellant.

DILLON, Judge.

Stephen Anthony Granger (“Defendant”) appeals from the

judgment entered for driving while impaired following the denial 

of his motion to suppress. For the foregoing reasons, we affirm 

the trial court’s order denying Defendant’s motion to suppress.

I. Background

In the early morning hours of 1 May 2012, Defendant was 

involved in a motor vehicle accident in Wilmington where the 

vehicle he was operating rear-ended another vehicle. As a 
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result of the accident, he was charged with driving while 

impaired (“DWI”) and failure to reduce speed.

On 25 June 2013, Defendant filed in the superior court1 a 

motion to suppress the results from the test of his blood which 

was drawn shortly after the accident, arguing inter alia that 

his Sixth Amendment right to confront witnesses had been 

violated by the State’s failure to prove the chain of custody of 

his blood sample. On 22 July 2013, Defendant filed a motion to 

dismiss, arguing that his Fourth Amendment rights had been 

violated because the blood draw was performed without a warrant.

On 21 August 2013, Defendant’s motions were argued before 

the trial court. Evidence presented by the State tended to show 

the following: On 1 May 2012, Officer Eric Lippert with the 

Wilmington Police Department responded to a report of an 

accident occurring around 2:19 a.m. When he arrived at the 

scene, Officer Lippert observed Defendant sitting in the 

driver’s seat alone in his vehicle and Defendant’s vehicle had 

rear-ended a truck towing an enclosed trailer. Officer Lippert 

approached Defendant’s vehicle and noticed that Defendant was 

“in some level of pain, discomfort[,]” and had “a moderate odor 

 

1 This matter was originally brought in district court where 

Defendant was convicted of DWI. Defendant appealed that 

conviction to superior court.
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of an alcoholic beverage coming from his person.” Defendant was 

subsequently transported to New Hanover Regional Medical Center

by EMS, without Officer Lippert performing any sobriety checks 

on Defendant.

Officer Lippert also traveled to the hospital where he

spoke with Defendant. During this encounter, Officer Lippert

noticed that Defendant had “bloodshot and glassy eyes[,]” and

Defendant kept interrupting him and telling him that “I’ve been 

drinking[.]” Defendant admitted to Officer Lippert that he had

taken “three shots” between 10 p.m. and 11 p.m. and his last 

shot was 20 minutes before the accident or approximately 2 a.m. 

While Defendant was lying in his hospital bed, Officer Lippert 

gave Defendant two Alcosensor portable breath tests, one at 3:04 

a.m. and the other at 3:09 a.m.; both tests were positive for 

alcohol. Because of Defendant’s condition, Officer Lippert was 

limited in the type of field sobriety tests he could perform. 

He administered the horizontal gaze nystagmus test, which 

Defendant did not pass. He also administered an alphabet test 

and a counting test, which Defendant passed.

Based on his investigation, Officer Lippert determined that 

he had sufficient probable cause to obtain a blood sample from 

Defendant. At 3:10 a.m., Officer Lippert read Defendant his 
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implied consent rights and waited for a nurse to draw 

Defendant’s blood for analysis. At 3:50 a.m., a nurse became 

available, and Officer Lippert made a request to Defendant for a 

blood draw; however, Defendant refused to give his consent. 

Officer Lippert testified that he did not get a warrant for the 

blood draw because, inter alia, he was by himself with Defendant 

and would have to get another officer to watch Defendant while 

he drove to the county jail to get the warrant, about 20 minutes 

away; he was concerned about the dissipation of the alcohol from 

Defendant’s blood stream, as it had been over an hour since the 

accident; and he had to get the blood evidence soon as he could 

not get an accurate blood sample if Defendant were given any 

medications for his pain or injuries. At 3:51 a.m., Officer 

Lippert instructed the nurse to draw Defendant’s blood. A test 

of this blood sampled revealed an alcohol concentration of 0.15,

in excess of the legal limit.

Following testimony, Defendant argued that there was 

insufficient exigent circumstances to justify the warrantless 

seizure of the blood evidence. The superior court ruled in open 

court that Defendant’s Fourth Amendment rights had not been 

violated because there was sufficient exigent circumstances
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present, but stated specifically that it was not ruling on the 

Sixth Amendment “chain of custody” issue.

On 22 August 2013, the superior court issued a written 

order, with findings of fact and conclusions of law, denying 

“defendant’s motion to suppress” after concluding that there 

were sufficient exigent circumstances to justify the warrantless 

blood draw. On the same day, after preserving his right to 

appeal the superior court’s denial of his motion to suppress, 

Defendant pled guilty to DWI. As a condition of the plea, the 

State dismissed the charge of failure to reduce speed. The 

superior court sentenced Defendant to a term of 12 months 

imprisonment; this sentence was suspended and Defendant was 

placed on supervised probation for 18 months. The Court also 

ordered Defendant to complete 48 hours of community service and 

“not to drive until licensed to do so.” On 22 August 2013, 

Defendant filed written notice of appeal from this judgment.

II. Argument

In his only issue on appeal, Defendant contends that the 

trial court erred in denying his motion to suppress certain 

blood evidence because there were insufficient exigent 

circumstances to support the warrantless seizure of that 

evidence in violation of his Fourth Amendment rights.
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A. Preliminary Manner

The State, citing State v. Golden, 96 N.C. App. 249, 385 

S.E.2d 346 (1989), argues that Defendant waived his right to 

argue a violation of his Fourth Amendment rights. Specifically, 

the State contends that none of Defendant’s attempts in superior 

court to challenge the admission of the blood test based on 

Fourth Amendment grounds followed N.C. Gen. Stat. § 15A-977(a) 

(2012), which requires, in part, that (1) the “motion to 

suppress . . . be in writing[,]” (2) it “state the grounds upon 

which it is made[,]” and (3) it “be accompanied with an 

affidavit containing facts supporting the motion.” Id. We 

disagree.

Specifically, the State argues that Defendant’s oral motion 

to suppress made at the hearing based on the Fourth Amendment 

was not sufficient to preserve Defendant’s appeal since this 

motion did not meet the requirement that it be “in writing.” 

Further, the State argues that Defendant’s written motion to 

suppress was not sufficient to preserve Defendant’s appeal, 

since the only ground stated in that motion is based on the 

Sixth Amendment (chain of custody/confrontation of witnesses) 

and not the Fourth Amendment (exigent circumstances). Finally, 

the State argues that Defendant’s written motion to dismiss was 
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not sufficient to preserve Defendant’s appeal because – though 

that motion stated the Fourth Amendment as the ground for the 

challenge - it was not accompanied by the required “affidavit

containing facts supporting the motion.” See id.

We believe that Defendant did satisfy the requirements of 

N.C. Gen. Stat. § 15A-977(a). Specifically, as the State 

concedes, Defendant’s motion to dismiss – which is based on 

Fourth Amendment grounds - may be treated as a motion to 

suppress, pursuant to our decision in Golden, supra. We 

recognize that, though the motion to dismiss sets forth factual 

allegations to support the motion, the motion was unverified. 

However, Defendant’s motion to suppress based on his Sixth 

Amendment challenge was verified2 and contains substantially the 

same factual allegations that are contained in Defendant’s 

unverified motion to dismiss. Since the factual allegations in 

the motion to suppress are verified and since these allegations 

are sufficient to support Defendant’s motion to dismiss, 

Defendant has satisfied the minimum requirements for a motion to 

suppress pursuant to N.C. Gen. Stat. § 15A-977(a). Accordingly, 

 

2 Although not initially included in the record on appeal, 

Defendant made a motion with this Court to amend the record on 

appeal to include the verification of his motion to suppress. 

We grant this motion.
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we turn to address Defendant’s substantive arguments regarding 

the denial of his motion to suppress and exigent circumstances.

B. Motion to Suppress-Exigent Circumstances

1. Standard of Review

This Court’s review of an appeal from the denial of a 

defendant’s motion to suppress is limited to determining 

“whether competent evidence supports the trial court’s findings 

of fact and whether the findings of fact support the conclusions 

of law.” State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 

878 (2011). When a defendant fails to challenge the trial 

court’s findings of fact,

they are deemed to be supported by competent 

evidence and are binding on appeal. 

Conclusions of law are reviewed de novo and 

are subject to full review. Under a de novo

review, the court considers the matter anew 

and freely substitutes its own judgment for 

that of the lower tribunal.

Id. at 168, 712 S.E.2d at 878 (citations and quotation marks 

omitted). On appeal, Defendant challenges only portions of 

finding of fact 41. Therefore, the remaining findings of fact 

are binding to us on appeal and deemed to be supported by 

competent evidence. See id. We first turn to Defendant’s 

challenges to the trial court’s finding of fact 41, arguing that 
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subsections (a) and (c) of this finding are not supported by 

competent evidence in the record.

2. The trial court’s finding of fact 41

Finding of fact 41(a) states

(a) The first exigent circumstance was the 

fact that defendant’s percentage alcohol 

[sic] in the his [sic] blood was dissipating 

and had been for approximately 1 hour and 32 

minutes, from the time of the accident until 

the time the defendant refused a consensual 

blood draw. Such dissipation destroys the 

vital evidence in the case. An additional 

40 plus minute delay by traveling to the New 

Hanover County Jail to seek a magistrate’s 

signature on a search warrant would allow 

further dissipation of alcohol and further 

evidence to be destroyed.

First, Defendant contends that it was not 1 hour and 32 

minutes from the accident until he refused a consensual blood 

draw, as the trial court found, but 1 hour and 32 minutes from 

the accident until when his blood was actually drawn. Defendant 

also argues that Officer Lippert arrived at 2:50 a.m. and 

“wasted” 20 minutes performing field sobriety tests on Defendant 

and then “wasted” another 40 minutes between Defendant’s refusal 

and the blood draw, enough time for him to obtain the search 

warrant and he “simply refused to do so.” We find Defendant’s 

arguments unpersuasive.
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It appears that Defendant is challenging the first and last 

sentences of this finding. As to the first sentence, Officer 

Lippert testified that the accident occurred at 2:19 a.m. 

Officer Lippert further testified that at 3:50 a.m., when a 

nurse finally became available to perform a blood draw, 

Defendant refused to give his consent to the draw. One minute 

later, the nurse drew Defendant’s blood at 3:51 a.m. We do not 

believe that Officer Lippert “waste[d]” 40 minutes, as Defendant 

argues, from 3:10 until 3:50 a.m., but he was waiting for a 

nurse. Therefore, this finding is supported by competent 

evidence in the record. Defendant’s argument may be based on 

the implied consent rights form which shows 3:10 a.m. as the 

time that Defendant refused, but Officer Lippert clarified in 

his testimony that he gave the form to Defendant at 3:10 a.m. 

but it was not until a nurse arrived at 3:50 a.m. that Defendant

refused to give his consent.

As to the last sentence in this finding, Officer Lippert 

testified that it would have taken 15 or 20 minutes to drive to 

the county jail to see a magistrate and get a warrant and it 

would take him some amount of time to fill out the proper search 

warrant form and did not know how long the process would take. 
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Therefore, the trial court’s finding that there would have been 

a “40 plus minute delay” is supported by competent evidence.

We also find Defendant’s argument that Officer Lippert 

“wasted” 20 minutes doing field sobriety tests unpersuasive 

because it is well understood that Officer Lippert would have to 

have probable cause in order to obtain the contested blood draw 

evidence. See U.S. Const. Amend. IV. Those sobriety tests 

would be in furtherance of establishing probable cause. 

Therefore, Defendant’s arguments are overruled.

As to finding of fact 41(c), Defendant contends Officer 

Lippert’s testimony regarding Defendant needing pain medication 

was “purely hypothetical,” and there was no evidence that 

Defendant needed or was given any pain medication that would 

interfere with him getting a blood sample. We likewise find 

these arguments to be without merit.

Officer Lippert testified that when he arrived on the scene 

of the accident Defendant appeared to be “in some level of pain

[and] discomfort[],” he was taken out of his vehicle and 

transported to the hospital on a backboard, and, at the 

hospital, Defendant complained of foot, ankle, knee, and 

shoulder pain. Officer Lippert testified that he had seen 

accident victims receive pain medication before and was 
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concerned that pain medication would prevent him from getting an 

accurate blood test. He further stated that he would not stop 

or interfere with a person’s medical treatment. We are not 

persuaded by Defendant’s argument that no evidence supports 

finding of fact 41(c) and that Officer Lippert’s concerns were 

merely “hypothetical[.]” Rather, there was competent evidence 

in the record to support the trial court’s finding of fact 41(c) 

and Defendant’s arguments are overruled. We next turn to 

Defendant’s challenges to the trial court’s conclusions of law.

3. The trial court’s conclusions of law

Defendant contends that the trial court’s findings of fact 

do not support its conclusion of law that sufficient exigent 

circumstances existed to justify the warrantless collection of 

his blood sample. Defendant contends that the trial court’s 

findings of fact do not show that Officer Lippert “faced an 

emergency that justified action without a warrant” as required 

by Missouri v. McNeely, ___ U.S. ___, 185 L. Ed. 2d 696 (2013), 

for sufficient exigent circumstances. Defendant concludes that 

the denial of his motion to suppress should be reversed, the 

evidence suppressed, and his charges dismissed.

Our Supreme Court has stated that “[t]he withdrawal of a 

blood sample from a person is a search subject to fourth 
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amendment protection.” State v. Welch, 316 N.C. 578, 585, 342 

S.E.2d 789, 793 (1986) (citation omitted). Therefore, “a search 

warrant must be procured before a suspect may be required to 

submit to such a procedure unless probable cause and exigent 

circumstances exist that would justify a warrantless search.” 

Id. Defendant raises no argument regarding probable cause for 

the warrantless blood draw. Thusly, our review is limited to

whether there were sufficient exigent circumstances.

The United States Supreme Court recently held in Missouri 

v. McNeely, supra, that the natural dissipation of alcohol in 

the bloodstream, standing alone, cannot create an exigency in a 

case of alleged impaired driving sufficient to justify 

conducting a blood test without a warrant. The inquiry into an 

exigency is fact-specific and “demands that we evaluate each 

case of alleged exigency based ‘on its own facts and 

circumstances.’” McNeely, ___ U.S. at ___, 185 L. Ed. 2d at 705 

(citation omitted). It stated that in DWI-type investigations, 

“where police officers can reasonably obtain a warrant before a 

blood sample can be drawn without significantly undermining the 

efficacy of the search, the Fourth Amendment mandates that they 

do so.” Id. at ___, 185 L. Ed. 2d at 707. By way of example, 

the Court stated that there may be “a situation in which the 
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warrant process will not significantly increase the delay before 

the blood test is conducted because an officer can take steps to 

secure a warrant while the suspect is being transported to a 

medical facility by another officer.” Id. at ___, 185 L. Ed. 2d 

at 708. But the Court also recognized that “some circumstances 

will make obtaining a warrant impractical such that the 

dissipation of alcohol from the bloodstream will support an 

exigency justifying a properly conducted warrantless blood 

test.” Id. at ___, 185 L. Ed. 2d at 707. The Court stated 

that, for example, “exigent circumstances justifying a 

warrantless blood sample may arise in the regular course of law 

enforcement due to delays from the warrant application process.” 

Id. at ___, 185 L. Ed. 2d at 709. The Court, in affirming the 

lower court’s ruling, concluded that

[i]n short, while the natural dissipation of 

alcohol in the blood may support a finding 

of exigency in a specific case, . . . it 

does not do so categorically. Whether a 

warrantless blood test of a drunk-driving 

suspect is reasonable must be determined 

case by case based on the totality of the 

circumstances.

Id.

In State v. Dahlquist, ___ N.C. App. ___, 750 S.E.2d 580 

(2013), appeal dismissed and disc. review denied, ___ N.C. ___, 

___ S.E.2d ___, 2014 N.C. LEXIS 203 (N.C., 2014), we addressed 
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the effect of the U.S. Supreme Court’s holding in McNeely, 

supra, stating that “the question for this Court remains 

whether, considering the totality of the circumstances, the 

facts of this case gave rise to an exigency sufficient to 

justify a warrantless search.” Id. at ___, 750 S.E.2d at 583.

In the present case, we conclude that the trial court’s 

findings support its conclusion that the totality of the 

circumstances showed that exigent circumstances justified the 

warrantless blood draw. Specifically, the trial court found 

that Officer Lippert had concerns regarding the dissipation of 

alcohol from Defendant’s blood, as it had been over an hour 

since the accident when Officer Lippert established sufficient 

probable cause to make his request for Defendant’s blood. Those 

findings also state Officer Lippert’s concerns “due to delays 

from the warrant application process[.]” See McNeely, ___ U.S. 

at ___, 185 L. Ed. 2d at 709. Its findings show that Officer 

Lippert did not have the opportunity to investigate the matter 

adequately until he arrived at the hospital because of 

Defendant’s injuries and need for medical care. Even if he had 

the opportunity to investigate the matter at the accident scene 

sufficiently to establish probable cause, unlike the example in 

McNeely, ___ U.S. at ___, 185 L. Ed. 2d at 708, Officer Lippert 
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was investigating the matter by himself and would have had to 

call and wait for another officer to arrive before he could 

travel to the magistrate to obtain a search warrant. Its 

findings show that Officer Lippert’s “knowledge of the 

approximate probable wait time” and “time needed to travel[,]” 

as being over a 40 minute round trip to the magistrate at the 

county jail. See Dahlquist, ___ N.C. App. at ___, 750 S.E.2d at

583 (holding that there were sufficient exigent circumstances 

justifying the warrantless blood draw in part because of the 

officer’s knowledge of the travel time and delays as a result of 

the warrant application process). Additionally, Officer Lippert 

had the added concern of the administration of pain medication 

to Defendant. Defendant had been in an accident severe enough 

that he was placed on a backboard for transportation to the 

hospital and complained of pain in several parts of his body. 

There was a reasonable chance if Officer Lippert left him 

unattended to get a search warrant or waited any longer for the 

blood draw, Defendant would have been administered pain 

medication by hospital staff as part of his treatment, 

contaminating his blood sample.3

 

3 We note that a defendant can be guilty of impaired driving 

under N.C. Gen. Stat. § 20-138.1 not only for having “consumed 

sufficient alcohol” but also for being “under the influence of 
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For the foregoing reasons, we affirm the trial court’s 

denial of Defendant’s motion to suppress.

AFFIRMED

Judge STROUD and Judge HUNTER, JR. concur.

 

an impairing substance” or with “any amount of a Schedule I 

controlled substance, as listed in G.S. 90-89, or its 

metabolites in his blood or urine.” A blood test for 

Defendant’s blood alcohol content could also presumably reveal 

if he was also under the influence of another “impairing 

substance” or “Schedule I controlled substance[.]”