In June of 2026, the North Carolina Court of Appeals filed a very important opinion in a case that arose out of Orange County. In State of North Carolina v. Brandon Anthony Dade, the appellate court rendered a decision in a case of first impression. The question before the court essentially boiled down to whether the statutory requirements of N.C.G.S. § 20-38.6(f) were jurisdictional in nature or procedural. The distinction is important because if found to be jurisdictional, the impact upon fundamental jurisprudence cannot be ignored. There is a dissenting opinion in this case and given that it was an issue of first impression, we are likely to hear much more about this case in the future.
This case encompasses a myriad of interesting factual and procedural issues. The facts of the case involve a driving while impaired arrest in Chapel Hill. In October of 2022, an officer with the Chapel Hill Police Department observed Mr. Dade driving his vehicle, veering dividing lines, and running a red light. The officer eventually stopped Mr. Dade and observed him having red eyes and a “blank stare”. The officer further noted that Mr. Dade had difficulty focusing, had an odor of alcohol on his breath, and covered his mouth while speaking. Mr. Dade denied that he had been drinking alcohol. Mr. Dade exited his vehicle when requested to do so by the officer, but he refused to perform any field sobriety tests. Upon his exiting the vehicle, the officer noted that Mr. Dade kept his hand on his car as if to brace himself. Mr. Dade also dropped his keys as he exited his vehicle. Based on these observations, the officer determined that Mr. Dade had consumed a sufficient amount of alcohol to impair his mental and/or physical faculties. Mr. Dade was placed under arrest for driving while impaired. Mr. Dade refused to submit to a breath test but blood tests later revealed a blood alcohol concentration of .12 with the legal limit being .08.
Mr. Dade was formally charged with driving while impaired a year later in October of 2023. Mr. Dade made a motion in court to suppress the evidence against him on the grounds that there was no probable cause for his arrest. The motion to suppress was verbally granted by the district court, however a written preliminary determination as required under N.C.G.S §20-38.6(f) was not entered. This failure on the part of the district court to enter its determination in writing was key to what gave rise to this matter being before the appellate court. In February of 2024, the State filed notice of appeal to the superior court on this preliminary determination to grant Mr. Dade’s motion to suppress and requested a de novo hearing.
A de novo hearing on the verbal ruling of the district court was held in Orange County Superior Court in May of 2024. That court found there was probable cause to arrest Mr. Dade, reversed the ruling of the district court, and remanded the case back to the district court. In September of 2024, Mr. Dade pled guilty to driving while impaired in district court and gave notice of appeal. In December of 2024, Mr. Dade pled guilty to driving while impaired in superior court pursuant to a plea agreement. Under the terms of the plea agreement, Mr. Dade expressly reserved his right to appeal the superior court's denial of his motion to suppress. In January of 2025, Mr. Dade gave notice of appeal on the grounds that the superior court lacked subject matter jurisdiction to reverse the district court's verbal ruling on his motion to suppress because the district court’s preliminary ruling had not been reduced to a writing as required by statute.
Before reviewing the merits of this case, the Court of Appeals was first tasked with determining whether or not this matter was properly before the Court. The State contended that because the district court had never entered a final judgment on Mr. Dade’s motion, he had no right to appeal the ruling of the superior court. Therefore, his appeal should be dismissed. The Court of Appeals in essence agreed with the State on this point. However, Mr. Dade also petitioned for Writ of Certiorari in the matter and this ultimately served as the grounds for appellate review.
The North Carolina Court of Appeals granted Mr. Dade’s Petition for Writ of Certiorari in order to determine the jurisdictional issues that were presented in this case. In its review, the appellate court considered the question of whether or not the superior court had subject matter jurisdiction in this matter. The appellate court conducted a de novo review. Because the statute expressly states that the district court is required to make its preliminary findings in writing, and the district court failed to do so, the district court’s decision was neverformalized.Notwithstanding the lack of a formalized decision by the district court, the State gave notice of appeal. The appellate court determined that the State had no ability to appeal because the preliminary decision of the district court had not been formalized. The superior court actually pointed out that it did not see a written preliminary determination or order. Furthermore, the State’s appeal stated that a written preliminary determination did not exist, but it was proceeding as if there were no preliminary findings or conclusions of law in existence. The Court of Appeals noted that the State did not seek a Writ of Mandamus to instruct the district court to enter a written order in the case when it could have done so.
The failure of the district court to not reduce its preliminary order to a writing and the State’s appeal to superior court without the existence of a writing of the preliminary determination lead the Court of Appeals to conclude that the superior court lacked subject matter jurisdiction to conduct a de novo hearing in the matter. In its opinion, the Court of Appeals goes into a lengthy and detailed discussion on the vital importance of subject matter jurisdiction. Without subject matter jurisdiction, any decision rendered by a court is null. Furthermore, subject matter jurisdiction cannot be conferred by agreement of the parties. The Court of Appeals found fault with the district court, the State, and the superior court in this matter. For a court to issue a ruling in a criminal case without it having subject matter jurisdiction raises significant constitutional implications.
The order of the superior court was vacated, Mr. Dade’s plea agreement was rescinded, and the matter was remanded to the district court. The Court of Appeals ruled that the district court must enter a written preliminary determination granting its motion to suppress under N.C.G.S §20-38.6(f) and at that time the State can decide whether or not it will appeal that ruling.
Of note, there was a dissent in the Court of Appeals. The dissent opined that the requirement of a wiring as expressed in N.C.G.S §20-38.6(f) was procedural and not jurisdictional. In the view of the dissent, Mr. Dade was free to oppose the de novo hearing occurring in superior court. Because Mr. Dade agreed to enter a plea of guilty in the matter, the dissent did not feel that he was prejudiced by a lack of written preliminary determination on the motion to suppress from the district court.
Because this is an issue of first impression with a dissenting opinion from the Court of Appeals, it is unlikely that we have heard the last of this issue. Our office will be sure to keep abreast of any further developments in this case and share those with our readers.
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