Etheridge v. Peters, 117

Docket NºNo. 117
Citation301 N.C. 76, 269 S.E.2d 133
Case DateAugust 15, 1980
CourtUnited States State Supreme Court of North Carolina

Page 133

269 S.E.2d 133
301 N.C. 76
Gary D. ETHERIDGE, Petitioner,
Elbert L. PETERS, Jr., Commissioner, Division of Motor
Vehicles, Respondent.
No. 117.
Supreme Court of North Carolina.
Aug. 15, 1980.

Beaman, Kellum, Mills, Kafer & Stallings, P. A., by David P. Voerman and William H. Hollows, New Bern, for petitioner-appellant.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Jane P. Gray and Deputy Atty. Gen. William W. Melvin, Raleigh, for respondent-appellee.

EXUM, Justice.

The question presented for review is whether the evidence in the instant case supports the trial court's conclusion that petitioner did not willfully refuse to submit to a breathalyzer test. We hold that it does not.

Petitioner was arrested in Craven County, North Carolina and charged with driving while under the influence of intoxicating liquor. The arresting officer, L. T. DuBose, transported petitioner to the breathalyzer room at the Craven County Sheriff's Department and requested him to submit to a breathalyzer test. The breathalyzer operator, Trooper Johnny Brown, informed petitioner that he had a right to call an attorney but that he was only allowed thirty minutes in which to do so. Trooper Brown completed reading petitioner his rights relative to the breathalyzer procedure at 9:19 p. m. Petitioner said that he wanted to call an attorney and tried unsuccessfully several times to contact one. Eventually he was able to locate Mr. Lamar Sledge, an attorney in New Bern, North Carolina. Trooper Brown again offered to administer the breathalyzer test to petitioner, but petitioner responded that he wanted to wait for Mr. Sledge to arrive. Trooper Brown again reminded petitioner of the thirty-minute time limit and informed him that only ten minutes remained.

Mr. Sledge finally arrived and conferred briefly with petitioner. Approximately thirty-five minutes after he was advised of his rights, petitioner indicated that he was willing to take the test. Trooper Brown was at that time dismantling the breathalyzer[301 N.C. 78] machine and informed petitioner that thirty minutes had elapsed. He refused to administer the test and recorded the test results as a "refusal" on the part of petitioner.

Later the Division of Motor Vehicles advised petitioner by letter dated 7 April 1978 that pursuant to G.S. 20-16.2(c) his driver's license would be revoked for six months because he refused to submit to the breathalyzer test. Petitioner sought and was granted an order restraining the Division of Motor Vehicles from revoking his license until the matter was determined de novo in superior court.

The matter came on to be heard before Judge Rouse, who found in pertinent part:

Page 135

"6. . . . Trooper Brown completed reading the rights form to petitioner at 9:19 p. m.

"7. Petitioner did not decline to take the test but indicated to Trooper Brown that he would like to contact an attorney or have an attorney present during the test.

"12. Trooper Brown offered the breathalyzer test to petitioner at the conclusion of the required 20-minute waiting period and at the end of the 30-minute waiting period.

"13. At the end of the 30-minute period Officer Brown proceeded to disassemble the breathalyzer machine. Within two to four minutes after the 30-minute period expired Mr. Sledge arrived. The officer had not completed the process of disassembling the breathalyzer machine. He was in the process of taking the ampules out when the attorney arrived.

"14. Mr. Sledge asked to speak with petitioner. Officer DuBose and Brown were there and indicated he could talk with the petitioner. Mr. Sledge was not advised that the 30-minute period had expired or was about to expire. Mr. Sledge conferred quickly with the petitioner out of the hearing of the officers.

[301 N.C. 79] "15. Within two or three minutes after he arrived petitioner, upon advice of Mr. Sledge, indicated a willingness to take the test.

"18. Petitioner's request to take the test was made within five minutes of the expiration of the 30-minute period, and was made immediately after consultation with...

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23 cases
  • State v. Bonvie, 05-560.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 24 Agosto 2007
    ...but its holdings that refusal cannot be reconsidered involve consent given outside the thirty-minute period. See Etheridge v. Peters, 301 N.C. 76, 269 S.E.2d 133, 136 (1980) (finding willful refusal to submit to test after statutory thirty-minute period had expired); Seders v. Powell, 298 N......
  • Steinkrause v. Tatum, COA08-1080.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 8 Diciembre 2009
    ...test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test. Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980). "Obviously, one may refuse the test by inaction as well as by words." Mathis v. North Carolina Div. of Motor......
  • Powers v. Tatum, COA08-137.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 5 Mayo 2009
    ...permits the prescribed thirty-minute time limit to expire before he elects to take the test. Etheridge v. Peters, Comr. of Motor Vehicles, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980). The purpose of the statute is fulfilled when the motorist is given the option to take or refuse to take the......
  • St. John v. Thomas, COA16-847
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 2 Mayo 2017
    ...limit to expire before he elects to take the test."Steinkrause , 201 N.C. App. at 295, 689 S.E.2d at 383 (quoting Etheridge v. Peters , 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980) ). Put simply, a refusal is willful "when a person purposefully makes a conscious choice not to submit to a che......
  • Request a trial to view additional results

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