Gibson v. Faulkner
| Decision Date | 06 April 1999 |
| Docket Number | No. COA98-712.,COA98-712. |
| Court | North Carolina Court of Appeals |
| Parties | Johnny Richard GIBSON, Petitioner/Appellant, v. Janice FAULKNER, Commissioner North Carolina Division of Motor Vehicles, Respondent/Appellee. |
Hyler Lopez & Walton, P.A., by George B. Hyler, Jr., and Robert J. Lopez, Asheville, for petitioner appellant.
Attorney General Michael F. Easley, by Associate Attorney General Jeffrey R. Edwards, for respondent appellee.
Petitioner contends the trial court erred in, among other things, (I) concluding, as a matter of law, that Trooper Silver had reasonable grounds to believe that petitioner committed an implied consent offense; (II) finding as fact that petitioner had been advised of his rights under the appropriate statute; (III) concluding, as a matter of law, that petitioner wilfully refused to submit to a chemical analysis upon the request of Trooper Silver; and (IV) finding that DMV could proceed to revoke petitioner's driver's license, despite petitioner being found not guilty of the related criminal offenses in district court.
Defendant contends that the trial court erred in concluding as a matter of law that Trooper Silver had "reasonable grounds" to believe that petitioner committed an implied consent offense. Petitioner claims that Trooper Silver based his arrest upon hearsay information submitted to him by Deputy Reece, and that such hearsay testimony is inadmissible in court. Petitioner asks this Court to review its holding in Melton v. Hodges, 114 N.C.App. 795, 443 S.E.2d 83 (1994), that "reasonable grounds for belief may be based upon information given to the officer by another, the source of the information being reasonably reliable, and it is immaterial that the hearsay information itself may not be competent in evidence at the [criminal] trial of the person arrested." Id. at 798, 443 S.E.2d at 85.
We are bound by our holding in Melton. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Since our ruling in Melton has not been overturned by a higher court, it is binding upon this panel. This assignment of error is overruled.
Petitioner argues that the trial court erred in determining that he had been advised of his rights under the appropriate statute. Petitioner relies on the following excerpt from the transcript of proceedings before the trial court, and argues that Trooper Silver advised him of his rights under the incorrect statute:
Petitioner contends that the rights to which he was entitled to be advised are actually found in N.C.Gen.Stat. § 20-16.2(a), and that based on Trooper Silver's testimony the trial court did not have competent evidence to conclude as a matter of law that petitioner had been properly advised of his rights. We disagree.
Where the trial judge sits as the trier of fact, "[t]he court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary." Gilbert Engineering Co. v. City of Asheville, 74 N.C.App. 350, 364, 328 S.E.2d 849, 858, disc. review denied, 314 N.C. 329, 333 S.E.2d 485 (1985). In the case before us, we find there was competent evidence to support the trial judge's findings of fact. We note that N.C.Gen.Stat. § 20-16.2(b) does not even contain a recital of rights. Further, the written form referred to by Trooper Silver appears of record as an exhibit at the hearing in this matter. The written form, which the petitioner understood but refused to sign, sets out in detail the rights found in N.C.Gen.Stat. § 20-16.2(a). One of the rights enumerated in N.C.Gen.Stat. § 20-16.2(a) is the right to telephone an attorney and select a witness to view the testing procedure. The written notice of rights indicates that Trooper Silver advised petitioner of his rights at 10:10 p.m., and that petitioner called an attorney or witness at 10:11 p.m. The conduct of the petitioner in making telephone calls immediately after being advised that he had the right to do so supports the finding of the trial court that petitioner was fully advised of his rights under the correct statutory section. There is other competent evidence of record in the form of the Affidavit signed and filed by Trooper Silver affirming that he advised the petitioner of his rights pursuant to N.C.Gen. Stat. § 20-16.2(a). The reference in the district attorney's question to advising petitioner of his rights under N.C.Gen.Stat. § 20-16.2(b ) rather than (a ) appears to be either a transcription error or a mere lapsus linguae by the district attorney. See State v. Kandies, 342 N.C. 419, 445, 467 S.E.2d 67, 81,
cert. denied, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996). In any event, there was other competent evidence to support the trial court's findings of fact, and those findings support its conclusion of law that petitioner had been advised of his rights under N.C.Gen.Stat. § 20-16.2(a). Petitioner's assignment of error is overruled.
Petitioner does not contend that he actually furnished the sequential breath samples requested of him by the trooper. He argues, however, that to constitute a "valid chemical analysis" N.C.Gen.Stat. § 20-139.1(b) requires that the test be "performed according to methods approved by the Commission for Health Services and by an individual possessing a valid permit" for that type of chemical analysis. State v. Gray, 28 N.C.App. 506, 507, 221 S.E.2d 765, 765 (1976). He argues that "[t]he burden of proving compliance with G.S. 20-139.1(b) lies with the State[,]" id., and that, in the case sub judice, "[t]he failure of the State to produce evidence of the test operator's compliance with G.S. 20-139.1(b) must be deemed prejudicial error." Id. at 506, 221 S.E.2d at 765.
Our holding in Gray addressed the issue of admitting the results of the chemical test into evidence in a criminal proceeding. The administrative hearing referred to in N.C.Gen. Stat. § 20-16.2(d) addresses the issue of revoking one's driving privilege based upon a willful refusal to submit to a chemical analysis, and is in the nature of a civil proceeding. N.C.Gen.Stat. § 20-16.2(d) lists five issues to be considered in the hearing:
Since the gist of the revocation proceeding is to determine whether a person willfully refused to submit to a chemical analysis, it is irrelevant in the civil proceeding whether the test was performed according to the applicable rules and regulations. In the case before us, there is competent evidence that petitioner refused to give sequential...
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