Brower v. Killens

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

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.

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 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.

"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 Attorney and DMV were not in privity. First, the criminal proceeding directed by the District Attorney and the civil licensing hearing controlled by DMV protect different interests. Id. at 440, 442 S.E.2d at 139. Second, "the District Attorney had no role in the administrative proceeding and, therefore, was not 'fully protected' in that proceeding." Id.

Subsequent to this Court's decision in O'Rourke, however, our Supreme Court clarified that it was actually the people of North Carolina, rather than District Attorneys, who are the real parties in interest in criminal prosecutions. Simeon v. Hardin, 339 N.C. 358, 368, 451 S.E.2d 858, 865 (1994) (citing N.C. Const. art. IV, § 13(1)). Therefore, as DMV is also a servant of the people, see N.C. Const. art. I, § 2 ("All political power is vested in and derived from the people; all government ... is instituted solely for the good of the whole"), we conclude the district attorney and DMV actually represent the same interest in driving while impaired cases--that of the citizens of North Carolina in prohibiting individuals who drive under the influence of intoxicating substances from using their roads. See Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 239, 182 S.E.2d 553, 562 (1971) (license revocation statute is designed to promote breathalyzer examinations which supply evidence directly related to state's enforcement of motor vehicle laws).

Nevertheless, we remain bound by the O'Rourke Court's admonition, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989), that "the District Attorney [has] no role in the administrative proceeding and, therefore, [is] not 'fully protected' [therein]." O'Rourke, 114 N.C.App. at 440, 442 S.E.2d at 139. See also Whitener, 100 N.C.App. at 76-77, 394 S.E.2d at 266 (collateral estoppel applies only if interest of instant party is fully protected in previous proceeding). Consequently, under O'Rourke and Whitener, we recognize the District Attorney is not collaterally estopped from relitigating issues previously determined in license revocation proceedings.

The present case, however, does not implicate the same concerns of non-representation as O'Rourke because the District Attorney's office was necessarily involved from the inception of the criminal case against Brower. Therefore, we believe our Supreme Court's decision in State v. Lewis, 311 N.C. 727, 319 S.E.2d 145 (1984), rather than this Court's opinion in O'Rourke, is dispositive of the present case.

In Lewis, the State, through its New Bern Child Support Agency, filed a civil proceeding against defendant seeking indemnification for public assistance it rendered two of defendant's minor children. Id. at [122 N.C.App. 689] 728, 319 S.E.2d at 147. Defendant, in his answer, alleged he was not the father of the children. Id. Noting defendant was adjudicated the natural father of the children in a prior criminal action also instituted by the State, the trial court concluded defendant was estopped from denying paternity. Id. at 728-729, 319 S.E.2d at 147.

The Supreme Court, affirming the trial court, stated, "[d]efendant ... contends that the state in this [civil] action is not identical to or in privity with the state in the prior criminal action. We find this argument feckless." Id. at 732, 319 S.E.2d at 149. In reaching its holding, the Lewis Court recognized the State instituted both the criminal and civil proceeding; the State "was not a nominal party" in either action; and the State pursued the same interest in both cases--having parents financially support their children. Id.

Likewise, in the present case, the State instituted both the criminal prosecution for driving while impaired and the civil license revocation hearing. The State represented the same interest in both actions--that of the citizens of North Carolina in maintaining safe roadways. See Joyner, 279 N.C. at 239, 182 S.E.2d at 562. Further, we note the District Attorney, acting as the legal representative of the citizens of North Carolina, was actively involved in the probable cause determination in case I. Therefore, under...