State v. O'Rourke, 9310SC549

• Decision Date: 19 April 1994
• Docket Number: No. 9310SC549,9310SC549
• Citation: 114 N.C.App. 435,442 S.E.2d 137
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James A. O'ROURKE.

Page 137

442 S.E.2d 137

114 N.C.App. 435

STATE of North Carolina v. James A. O'ROURKE.

No. 9310SC549.

Court of Appeals of North Carolina.

April 19, 1994.

Michael F. Easley, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., and Robert T. Hargett, Asst. Atty. Gen., Raleigh, for the State.

Bass, Bryant & Moore by John Walter Bryant and John K. Fanney, Raleigh, for defendant.

LEWIS, Judge.

Defendant appeals from a conviction of driving while impaired ("DWI"). Defendant was arrested on 28 August 1992, and he refused to submit to a chemical analysis test known as a "breathalyzer". On 10 September, defendant was notified that his North Carolina driving privilege would be revoked. Defendant then requested a revocation hearing before the Division of Motor Vehicles ("DMV"), pursuant to N.C.G.S. § 20-16.2(d) (1993). The hearing was held in December of 1992. After the hearing, DMV rescinded defendant's revocation. On 10 March 1993, defendant's jury trial on the DWI charge commenced in Wake County Superior Court. The jury returned a verdict of guilty, and the trial court entered judgment suspending sentence.

Defendant's first argument on appeal is that the trial court erred in not granting his motion in limine to exclude evidence of his refusal to submit to a chemical analysis. Defendant argues that DMV concluded that he did not willfully refuse to submit and that the decision of DMV is binding on the trial court. We note that the only evidence of such a conclusion by DMV is defendant's testimony at trial. Section 20-16.2(d) provides for the rescission of a revocation on any one of five grounds, one of those being that the petitioner did not willfully refuse to submit to a chemical analysis. The record does not reveal which of the five grounds DMV relied on to rescind the revocation. However, even assuming that DMV found that defendant did not willfully refuse, the trial court did not err in admitting the State's evidence of defendant's refusal.

N.C.G.S. § 20-139.1(f) (1993) provides that evidence of a defendant's refusal to submit to a chemical analysis is admissible against him in a DWI prosecution. Defendant first argues that section 20-16.2 provides for the final determination of whether a person willfully refused to submit and that this determination by DMV precludes the State from offering evidence of a refusal at a subsequent criminal trial.

In Joyner v. Garrett, 279 N.C. 226, 182 S.E.2d 553 (1971), the defendant was convicted of driving under the influence. The trial court revoked his driver's license for one year with limited driving privileges. Because the defendant had willfully refused to submit to a chemical analysis, DMV notified him that his driver's license would be revoked for sixty days. DMV's decision was sustained by a hearing officer and by the superior court. The defendant appealed the superior court's ruling, arguing that the revocation of his driver's license by the trial court in his criminal case constituted his "full penalty" and he was, thus, exempted from the mandatory sixty-day revocation for willful refusal. In rejecting the defendant's argument, the Supreme Court held:

'It is well established that the same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person's privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one is of no consequence to the other.'

Id. at 238, 182 S.E.2d at 562 (quoting Ziemba v. Johns, 183 Neb. 644, 163 N.W.2d 780, 781 (1968)).

We find the Court's reasoning in Joyner applicable to the instant case. The decision by DMV to rescind the revocation of defendant's driver's license was independent of, and inconsequential to, defendant's criminal trial for DWI.

Defendant next argues that the doctrine of collateral estoppel barred the State from introducing evidence of his refusal to submit to a chemical analysis, after DMV had concluded that defendant did not willfully refuse. This is apparently an issue of first impression in this state.

The doctrine of collateral estoppel provides that a party will be estopped from relitigating an issue where 1) the issue has been necessarily determined previously and 2) the parties to that prior action are identical to, or in privity with, the parties in the instant action. County of Rutherford ex rel. Hedrick v. Whitener, 100 N.C.App. 70, 75, 394 S.E.2d 263, 265 (1990).

As to the first requirement, we again note that the only evidence supporting defendant's contention that DMV found that he did not willfully refuse to submit is defendant's own testimony. However, even assuming that defendant has satisfied the first requirement, we conclude that the privity requirement has not been met.

This Court, in Whitener, explored the privity requirement of collateral estoppel. The Court stated that privity exists where one party is so identified in interest with the other that it represents the same legal right as the other. Id. at 76, 394 S.E.2d at 266. However, privity is not established from the mere fact that two parties may happen to be interested in the same question or in proving the same facts. Id. Further, a party should be estopped from contesting an issue only where that party was fully protected in the earlier proceeding. Id.

In the instant case, the parties at issue are the Commissioner of Motor Vehicles, the District Attorney, and the defendant. Defendant contends that because both the Commissioner and the District Attorney represent the rights of the State, privity exists. We disagree, and we find instructive the analysis of the Appellate Court of Connecticut, which recently addressed the precise issue now before us in State v. Barlow, 30 Conn.App. 36, 618 A.2d 579 (1993).

In that case, the court held that there was no privity. The court reasoned that the purpose of the administrative proceeding is to enforce licensing requirements within the state, while the District Attorney's interest is in having guilt beyond a reasonable doubt or innocence determined under the criminal law. Id. 618 A.2d at 581. Further, the District Attorney represents the broader public interest in the effective administration of criminal justice. Id. The administrative decision did not address the broader questions of criminal guilt, nor did the Commissioner represent the public interest in the effective administration of criminal justice. Id. Rather, the administrative proceeding focused only on the issue of licensing. Thus, the court concluded, the Commissioner and the District Attorney were not in privity. Id.

In addition to the separate interests involved, it is important to note that in the instant case, the District Attorney had no...