Brower v. Killens, No. COA95-1015

• Docket Nº: No. COA95-1015
• Citation: 122 N.C.App. 685, 472 S.E.2d 33
• Case Date: June 18, 1996
• Court: Court of Appeal of North Carolina (US)

Page 33

472 S.E.2d 33 122 N.C.App. 685 Stephen Moore BROWER, Petitioner-Appellee,
v.
Alexander KILLENS, Commissioner, North Carolina Division of
Motor Vehicles, Respondent-Appellant. No. COA95-1015. Court of Appeals of North Carolina. June 18, 1996.

Attorney General Michael F. Easley by Associate Attorney General Sondra C. Panico, for respondent-appellant.

Smith, Follin & James, L.L.P. by Seth R. Cohen, and Charles A. Lloyd, Greensboro, for petitioner-appellee.

[122 N.C.App. 686] MARK D. MARTIN, Judge.

Respondent Alexander Killens ¹, Commissioner of the North Carolina Division of Motor Vehicles (DMV), appeals from order of the trial court finding DMV was collaterally estopped from litigating the existence of probable cause to arrest petitioner Stephen Brower (Brower).

On 10 February 1994 Brower was stopped by Trooper R.D. Mendenhall while traveling on Interstate 40 in Guilford County and subsequently arrested for operating his vehicle under the influence of an impairing substance. Trooper Mendenhall offered Brower the opportunity to submit to chemical analysis of his breath. Brower was marked as having refused such analysis.

As a result of the alleged refusal, DMV revoked Brower's license. Brower requested, and received, an administrative hearing to contest the automatic license revocation. By letter dated 24 June 1994, the revocation was upheld. On 30 June 1994 Brower instituted the present action for de novo review of the revocation (case II).

In September 1994 the criminal case against Brower for driving while impaired was called in Guilford County District Court (case I). At trial Brower challenged his arrest for lack of probable cause. After a full hearing, the trial court, by order issued 14 September 1994, concluded Trooper Mendenhall had insufficient probable cause to arrest Brower. The trial court suppressed the tainted evidence and granted Brower's motion to dismiss.

On 20 October 1994 Brower amended his complaint in case II to assert collateral estoppel as an affirmative defense to the license revocation. By order filed 23 June 1995 the trial court concluded DMV was estopped from relitigating whether or not Trooper Mendenhall had probable cause to arrest Brower for driving while impaired.

On appeal DMV contends the trial court erred by: (1) concluding DMV was collaterally

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estopped from relitigating the probable cause issue; and (2) signing an invalid order.

I.

We first consider whether DMV is collaterally estopped from relitigating the existence of probable cause to arrest Brower for driving while impaired.

[122 N.C.App. 687] "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." State v. O'Rourke, 114 N.C.App. 435, 439, 442 S.E.2d 137, 139 (1994). In the present case, the lack of probable cause to arrest was clearly established in case I; and Brower was the defendant in both case I and case II. Further, to sustain Brower's license revocation, DMV must establish Trooper Mendenhall had reasonable grounds to believe Brower was driving while impaired, see N.C. Gen.Stat. § 20-16.2(d)(2) (1993), which is "substantially equivalent" to a probable cause determination, see In re Gardner, 39 N.C.App. 567, 571, 251 S.E.2d 723, 726 (1979) (" 'Probable cause and "reasonable ground to believe" are substantially equivalent terms.' " (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971))). It follows therefore that our consideration of the collateral estoppel issue is necessarily limited to whether DMV in case II is in privity with the prosecution in case I.

Privity exists where one party is "so identified in interest with another that [it] represents the same legal right [as the other]." County of Rutherford ex rel. Hedrick v. Whitener, 100 N.C.App. 70, 76, 394 S.E.2d 263, 266 (1990) (quoting 46 AM.JUR.2D Judgments § 532 (1969)). "Privity is not established, however, from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts...." Id. Indeed, the doctrine of issue preclusion should operate to bar relitigation of an issue only where the instant party was "fully protected" in the earlier proceeding. Id.

DMV argues this Court's decision in State v. O'Rourke, 114 N.C.App. 435, 442 S.E.2d 137 (1994), is dispositive of the present case. In O'Rourke this Court considered whether the State was collaterally estopped from introducing evidence of the defendant's refusal to submit to a blood alcohol test because DMV had previously concluded defendant did not willfully refuse the test. Id. at 439, 442 S.E.2d at 139. The O'Rourke Court held the District Attorney was not collaterally estopped from introducing the challenged evidence because, even assuming the willful refusal issue was resolved by DMV, the District Attorney and DMV were not in privity. Id. at 439-440, 442 S.E.2d at 139.

The O'Rourke Court focused on two factors in concluding the District...