Ferguson v. Killens

• Decision Date: 07 April 1998
• Docket Number: No. COA97-18,COA97-18
• Citation: 129 N.C.App. 131,497 S.E.2d 722
• Court: North Carolina Court of Appeals
• Parties: George Wagoner FERGUSON, Jr., Petitioner, v. Alexander KILLENS, Commissioner of the Division of Motor Vehicles of the State of North Carolina Department of Transportation, Respondent.

Page 722

497 S.E.2d 722

129 N.C.App. 131

George Wagoner FERGUSON, Jr., Petitioner, v. Alexander KILLENS, Commissioner of the Division of Motor Vehicles of the State of North Carolina Department of Transportation, Respondent.

No. COA97-18.

Court of Appeals of North Carolina.

April 7, 1998.

Appeal by petitioner from orders entered 2 January 1996 and 9 July 1996 by Judge John Mull Gardner, Jr. in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 September 1997.

Eugene C. Hicks, III, Charlotte, for petitioner-appellant.

Attorney General Michael F. Easley by Assistant Attorney General T. Lane Mallonee, for respondent-appellee.

LEWIS, Judge.

Petitioner appeals from two superior court orders sustaining the revocation of his license by the North Carolina Division of Motor Vehicles (DMV). We affirm.

On 14 February 1995, Officer T.J. Kwasnik of the Charlotte-Mecklenburg Police Department arrived at the scene of an accident involving a school bus and a Cadillac. Kwasnik found petitioner seated in the Cadillac and being attended by medics. Kwasnik approached petitioner and noticed a strong odor of alcohol about his person. Several people at the scene told Kwasnik that petitioner was driving the Cadillac when it hit the bus. Petitioner was taken to Carolinas Medical Center and Kwasnik followed him there to interview him.

When petitioner arrived at the hospital, blood samples were drawn and tested for alcohol concentration in accordance with the hospital's routine practice for people involved in motor vehicle accidents. The test revealed an alcohol concentration of 0.33. When Officer Kwasnik arrived, petitioner stated that he had hit the school bus but that "they" could not prove he had been driving. Kwasnik charged petitioner with impaired driving.

Deputy K.E. Biltcliffe of the Mecklenburg County Sheriff's Department was summoned to act as chemical analyst in petitioner's case. Biltcliffe informed petitioner both orally and in writing of his rights as listed in North Carolina General Statute section 20-16.2(a) (1993). Biltcliffe asked petitioner if he understood his rights and petitioner stated that he did. Biltcliffe asked petitioner if he wanted to call an attorney or have a witness present but petitioner said "No."

Officer Kwasnik then asked petitioner to submit to a blood test. Petitioner refused. At the time of this request, neither Kwasnik nor Deputy Biltcliffe knew that the hospital had already taken blood from petitioner for testing. Petitioner's license was immediately revoked for ten days for willfully refusing to take the blood test. See N.C. Gen.Stat. § 20-16.5 (1993). Petitioner does not contest this ten-day revocation.

By letter dated 24 May 1995, respondent notified petitioner that his license was to be suspended for an additional year for willful refusal pursuant to N.C. Gen.Stat. § 20-16.2(c). Petitioner requested an administrative review by a DMV hearing officer. The hearing officer sustained the revocation and petitioner filed for a de novo hearing in superior court. While that appeal was pending, petitioner was convicted of impaired driving as charged. On 29 November 1995 the superior court conducted a de novo hearing on the one-year suspension and upheld the DMV order. Petitioner was granted a rehearing, but the suspension was again sustained. Petitioner appeals.

Petitioner has abandoned assignment of error five by failing to argue it in his brief. N.C.R.App. P. 28.

Petitioner first assigns error to several findings of fact by the superior court. The superior court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence also supports findings to the contrary. Nowell v. Killens, 119 N.C.App. 567, 569, 459 S.E.2d 37, 38 (1995).

Petitioner argues that the evidence did not support the following findings of fact: (1) that neither Officer Kwasnik nor Deputy Biltcliffe knew that petitioner's blood had already been tested by hospital personnel when petitioner was asked to take the blood test; (2) that Biltcliffe gave petitioner oral and written notice of his rights as listed in G.S. 20-16.2(a); and (3) that petitioner responded that he understood his rights. The testimony of Kwasnik and Biltcliffe supports all of these findings and they are therefore binding on appeal. Moreover, finding number (3) is not inconsistent with the superior court's finding that petitioner was read his rights so rapidly that it was difficult to understand what was being said. The court found that it was difficult, not impossible, to understand what was being said.

Petitioner challenges one other finding by the superior court: that petitioner was read his 20-16.2(a) rights before he was asked to submit to a blood test. Petitioner argues that the affidavits completed by Kwasnik and Biltcliffe on the day of the accident indicate that he was asked to take the test before he was read his rights.

It is immaterial that the evidence may support a finding not made by the superior court. Our review is limited to whether competent evidence supports the findings that were made. The sworn testimony of Officer Kwasnik and Deputy Biltcliffe at the hearing supports the finding as to when petitioner was read his rights. All assignments of error pertaining to the superior court's findings of fact are overruled.

Before we discuss the remaining assignments of error regarding the superior court's conclusions of law, we find it worthwhile to summarize the relevant portions of the statute central to this appeal, North Carolina General Statutes section 20-16.2 (1993). This opinion refers only to the version of 20-16.2 in effect on the date of the offense.

Anyone who operates a vehicle on a highway or public vehicular area consents to a chemical analysis if charged with an "implied-consent offense," including impaired driving. G.S. 20-16.2(a), (a1). "The charging officer must designate the type of chemical analysis to be administered, and it may be administered when the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense." G.S. 20-16.2(a). Before the test is administered, a chemical analyst who is authorized to administer a breath test must give the person charged oral and written notice of his rights as enumerated in G.S. 20-16.2(a), including his right to refuse to be tested. Id.

Subsection (c) provides in part If the person charged willfully refuses to submit to [the designated] chemical analysis, none may be given under the provisions of this section.... Then the charging officer and the chemical analyst must without unnecessary delay go before an official authorized to administer oaths and execute an affidavit stating that the person charged, after being advised of his rights under subsection (a), willfully refused to submit to a chemical analysis at the request of the charging officer. The charging officer must immediately mail the affidavit to the Division [of Motor Vehicles].

G.S. 20-16.2(c). Subsection (d) states in part,

Upon receipt of a properly executed affidavit required by subsection (c), the Division must expeditiously notify the person charged that his license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.... The hearing ... must be limited to consideration of whether:

(1) The person was charged with an implied-consent offense;

(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense;

(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;

(4) The person was notified of his rights as required by subsection (a); and

(5) The person willfully refused to submit to a chemical analysis upon the request of the charging officer.

If the Division finds that the conditions specified in this subsection are met, it must order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is met, it must rescind the revocation.

G.S. 20-16.2(d) (emphasis added). Subsection (e) provides in part,

If the revocation is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court for a hearing de novo upon the issues listed in subsection (d), in the same manner and under the same conditions as provided in G.S. 20-25....

G.S. 20-16.2(e) (emphasis added). Finally, General Statute section 20-25 (1993) provides in relevant part,

Any person ... whose license has been ... revoked by the Division ... shall have a right to file a petition within 30 days thereafter for a hearing in the matter in the superior court[,] ... and such court ... is hereby vested with jurisdiction and it shall be its ... duty ... to determine whether the petitioner is entitled to a license or is subject to ... revocation of license under the provisions of this Article.

At his de novo hearing, petitioner argued for the rescission of his license revocation by raising issues not listed in G.S. 20-16.2(d). The superior court held that its review of a G.S. 20-16.2 license revocation was limited to the five issues listed in G.S. 20-16.2(d), and therefore any issues other than these five were not properly before it. Nevertheless, the superior court proceeded to rule upon petitioner's alternative grounds for relief to the extent they were properly before the court.

Our initial task, then, is to determine what issues the superior court may rule on when it reviews a DMV license revocation pursuant to G.S. 20-16.2(e). By statute, DMV's administrative review of a license revocation under G.S. 20-16.2 "must be limited" to a consideration of the five issues listed in G.S. 20-16.2(d). N.C. Gen.Stat. § 20-16.2(d) (emphasis added). If a DMV hearing officer...