(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.
(b) The defendant may not appeal a denial of a pretrial motion to suppress or to dismiss but may appeal upon conviction as provided by law.
(c) Notwithstanding the provisions of G.S. 15A-1431, for any implied-consent offense that is first tried in district court and that is appealed to superior court by the defendant for a trial de novo as a result of a conviction, when an appeal is withdrawn or a case is remanded back to district court, the sentence imposed by the district court is vacated and the district court shall hold a new sentencing hearing and shall consider any new convictions unless one of the following conditions is met:
(1) If the appeal is withdrawn pursuant to G.S. 15A-1431(c), the prosecutor has certified to the clerk, in writing, that the prosecutor has no new sentencing factors to offer the court.
(2) If the appeal is withdrawn and remanded pursuant to G.S. 15A-1431(g), the prosecutor has certified to the clerk, in writing, that the prosecutor has no new sentencing factors to offer the court.
(3) If the appeal is withdrawn and remanded pursuant to G.S. 15A-1431(h), the prosecutor has certified to the clerk, in writing, that the prosecutor consents to the withdrawal and remand and has no new sentencing factors to offer the court.
(d) Following a new sentencing hearing in district court pursuant to subsection (c) of this section, a defendant has a right of appeal to the superior court only if:
(1) The sentence is based upon additional facts considered by the district court that were not considered in the previously vacated sentence, and
(2) The defendant would be entitled to a jury determination of those facts pursuant to G.S. 20-179.
A defendant who has a right of appeal under this subsection, gives notice of appeal, and subsequently withdraws the appeal shall have the sentence imposed by the district court reinstated by the district court as a final judgment that is not subject to further appeal. (2006-253, s. 5; 2007-493, s. 9; 2008-187, s. 10; 2015-150, s. 5; 2015-264, s. 39(a).)
Article 3.
Motor Vehicle Act of 1937.
Part 1. General Provisions.
§ 20-38.100: Reserved for future codification purposes.
Part 2. Authority and Duties of Commissioner and Division.
Notes of Decisions
Cited in
15
cases (
2 in the last 5 years), 2009–2026 · leading case:
State v. Fowler, 676 S.E.2d 523 (N.C. Ct. App. 2009).
State v. Fowler, 676 S.E.2d 523 (N.C. Ct. App. 2009).
· cites it 56× “” N.C. Gen. Stat. § 20-38.7 (a) (emphasis added).”
State v. Palmer, 676 S.E.2d 559 (N.C. Ct. App. 2009).
· cites it 32× “” N.C. Gen. Stat. § 20-38.7 (a) (2007). However, neither these provisions, nor the remaining provisions of Article 2D of the General Statutes, set forth the procedures with which the State must comply in order to properly give notice of, or perfect, its appeal *205 to superior…”
State v. Osterhoudt, 731 S.E.2d 454 (N.C. Ct. App. 2012).
· cites it 19× “The State gave oral notice of its appeal to superior court pursuant to N.C. Gen. Stat. § 20-38.7 (2010) and filed its notice of appeal on 30 November 2010.”
State v. Miller, 786 S.E.2d 367 (N.C. Ct. App. 2016).
· cites it 35× “Pursuant to N.C. Gen.Stat. § 20-38.7, [t]he State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss.”
State v. Bryan, 749 S.E.2d 900 (N.C. Ct. App. 2013).
· cites it 8× “The State appealed to superior court on 2 September 2011, pursuant to N.C. Gen. Stat. § 20-38.7 (a) and N.C. Gen.”
State v. Miller, 783 S.E.2d 194 (N.C. 2016).
· cites it 6× “On 18 July 2013, the State filed a written notice of appeal from Judge Best-Staton’s preliminary indication to the Superior Court, Mecklenburg County, that included a request for a de novo hearing pursuant to N.C.G.S. § 20-38.7. On 25 October 2013, defendant filed a motion…”
State v. Parisi, 796 S.E.2d 524 (N.C. Ct. App. 2017).
· cites it 12× “The State again filed a written notice of appeal to the superior court pursuant to N.C. Gen. Stat. § 20-38.7 . The State argued "no competent evidence was presented to support the motion to suppress.”
State v. Rackley, 684 S.E.2d 475 (N.C. Ct. App. 2009).
· cites it 4× “On 23 April 2008, pursuant to North Carolina General Statutes, section 20-38.7(a), the State appealed Judge Vincent’s order to Pitt County Superior Court, and on 11 July 2008, the matter came on for hearing before the Honorable John E.”
State v. Woolard (N.C. 2023).
· cites it 22× “Because that order was final, the State could no longer use section 20-38.7 to challenge it. In other words, the State had to look elsewhere for a right of appeal.”
State v. Hutton, 780 S.E.2d 202 (N.C. Ct. App. 2015).
· cites it 11× “Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes.”
State v. Mangino, 683 S.E.2d 779 (N.C. Ct. App. 2009).
· cites it 2× “6 (f) (2007) provides that district court judges shall “preliminarily indicate whether a pretrial motion to suppress or dismiss should be granted or deniedf,]” but “shall not enter a final judgment on the motion until the State has appealed to superior court or has indicated it…”
State v. Dade (N.C. Ct. App. 2026).
· cites it 9× “N.C.G.S. § 20-38.7(a). However, where the State’s appeal specifies that it disputes certain factual findings, the superior court reviews the matter de novo.”
— N.C. Gen. Stat. § 20-38.7(a) — 11 cases
State v. Fowler, 676 S.E.2d 523 (N.C. Ct. App. 2009).
“” N.C. Gen. Stat. § 20-38.7 (a) (emphasis added).”
State v. Palmer, 676 S.E.2d 559 (N.C. Ct. App. 2009).
“” N.C. Gen. Stat. § 20-38.7 (a) (2007). However, neither these provisions, nor the remaining provisions of Article 2D of the General Statutes, set forth the procedures with which the State must comply in order to properly give notice of, or perfect, its appeal *205 to superior…”
State v. Miller, 786 S.E.2d 367 (N.C. Ct. App. 2016).
“Pursuant to N.C. Gen.Stat. § 20-38.7, [t]he State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss.”
State v. Bryan, 749 S.E.2d 900 (N.C. Ct. App. 2013).
“The State appealed to superior court on 2 September 2011, pursuant to N.C. Gen. Stat. § 20-38.7 (a) and N.C. Gen.”
State v. Osterhoudt, 731 S.E.2d 454 (N.C. Ct. App. 2012).
“The State gave oral notice of its appeal to superior court pursuant to N.C. Gen. Stat. § 20-38.7 (2010) and filed its notice of appeal on 30 November 2010.”
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