Etheridge v. Peters
| Decision Date | 15 August 1980 |
| Docket Number | No. 117,117 |
| Citation | 301 N.C. 76,269 S.E.2d 133 |
| Parties | Gary D. ETHERIDGE, Petitioner, v. Elbert L. PETERS, Jr., Commissioner, Division of Motor Vehicles, Respondent. |
| Court | North Carolina Supreme Court |
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.
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 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:
Judge Rouse then concluded as a matter of law that petitioner "did not willfully refuse to submit to a breathalyzer test."
Respondent appealed to the Court of Appeals. That Court, relying on Seders v. Powell, Comr. of Motor Vehicles, 298 N.C. 453, 259 S.E.2d 544 (1979), reversed the judgment of the trial court. The Court of Appeals held that Judge Rouse's unchallenged findings of fact compelled the conclusion that "petitioner did willfully refuse to take the breathalyzer test within the meaning of the statute." 45 N.C.App. at 363, 263 S.E.2d at 311. Petitioner appealed to this Court pursuant to G.S. 7A-30(2). We agree with the decision of the Court of Appeals and accordingly affirm.
The relevant statute, G.S. 20-16.2, provides in pertinent part as follows:
" § 20-16.2. Mandatory revocation of license in event of refusal to submit to chemical tests; right of driver to request test. (a) Any person who drives or operates a motor vehicle upon any highway . . . shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the request of a law- enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. The law-enforcement officer shall designate which of the aforesaid tests shall be administered. The person arrested shall forthwith be taken before a person authorized to administer a chemical test and this person shall inform the person arrested both verbally and in writing and shall furnish the person a signed document setting out:
(4) That he has the right to call an attorney and select a witness to view for him...
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State v. Bonvie
...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......
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Steinkrause v. Tatum
...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 Vehic......
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Powers v. Tatum
...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......
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St. John v. Thomas
...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 chemical ......