Guzman v. Gore, COA0 9-1241

• Court: Court of Appeal of North Carolina (US)
• Decision Date: 03 August 2010
• Docket Number: No. 08 CVS 860,NO. COA0 9-1241,COA0 9-1241,08 CVS 860
• Parties: EDUVIGES GARCIA GUZMAN,Petitioner, v. WILLIAM C. GORE, JR.,COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent.

EDUVIGES GARCIA GUZMAN, Petitioner,
v.
WILLIAM C. GORE, JR., COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent.

NO. COA0 9-1241
No. 08 CVS 860

North Carolina Court Of Appeals

Filed: 3 August 2010

The Dummit Law Firm, by E. Clarke Dummit, for petitionerappellant.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for respondent-appellee.

Appeal by petitioner from order entered 10 July 2009 by Judge Anderson D. Cromer in Stokes County Superior Court. Heard in the Court of Appeals 25 March 2010.

JACKSON, Judge.

Eduviges Garcia Guzman ("petitioner") appeals from the trial court's order affirming the revocation of his driver's license for willful refusal to submit to a breathalyzer test. For the reasons set forth below, we affirm.

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On the evening of 5 July 2008, police officer N.R. Wall ("Officer Wall") from the King, North Carolina Police Department, responded to a request for backup from Officer Harrison, on Highway 52 North in Stokes County, North Carolina. Officer Harrison advised Officer Wall that he had observed a red pickup truck that matched the description of a Stokes County dispatch alert for a possible intoxicated driver pulled over on the side of the highway. Officer Harrison approached the truck and observed petitioner sitting in the driver's seat with the engine running. Officer Harrison asked petitioner for his license, and petitioner responded by giving the officer his bank card. Officer Harrison then asked petitioner if he had had anything to drink and petitioner responded "a few."

Officer Wall arrived at the scene as Officer Harrison was speaking with petitioner. Officer Wall spoke with petitioner, noting that his eyes were glassy and bloodshot and that he smelled strongly of alcohol. Petitioner submitted an AlcoSensor sample, which produced a positive result. Officer Wall then had petitioner perform several field sobriety tests. Officer Wall testified that petitioner performed poorly on all tests. Officer Wall then arrested petitioner for driving while intoxicated.

After petitioner was arrested, Officer Wall transported him to the police department and asked him to submit to an Intox-CCR2 test. Officer Wall read petitioner's chemical analysis rights to him, and petitioner signed the rights form. Officer Wall then explained the testing procedure to petitioner and demonstrated how

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to give a proper sample. Petitioner had five opportunities to provide a sample, but he did not blow sufficient air into the machine to produce a valid reading. At that time, Officer Wall determined that petitioner had refused the test. Officer Wall submitted a signed affidavit dated 6 July 2008, attesting that petitioner willfully had refused to submit to chemical analysis.

Based upon Officer Wall's affidavit, the North Carolina Department of Transportation, Division of Motor Vehicles ("DMV") sent petitioner official notice that his driving privileges had been revoked pursuant to North Carolina General Statutes, section 20-16.2. Petitioner requested and was granted a hearing with the DMV on 28 August 2008, which was continued until 18 September 2008. Petitioner filed a second motion to continue until after the criminal proceedings resulting from the same incident were resolved. Hearing Officer P.M. Snow ("Hearing Officer Snow") denied petitioner's motion for another continuance, and the hearing took place as scheduled on 18 September 2008.

At the hearing, Officer Wall testified to the facts of the case. Petitioner did not testify at the hearing or offer any evidence. Counsel for petitioner stated that his client could not testify, "because there is a pending criminal case," and counsel feared that any testimony or evidence presented at the hearing would be used against petitioner in the criminal case.

On 18 September 2008, Hearing Officer Snow issued an order sustaining the revocation of petitioner's driving privileges pursuant to North Carolina General Statutes, section 20-16.2. On

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1 October 2008, petitioner filed a petition for review of the revocation with the Superior Court of Stokes County. On 8 July 2 009, the trial court held that the DMV did not err in revoking petitioner's driving privileges. On 20 July 2009, petitioner gave written notice of appeal from the trial court's order.

Petitioner first argues that Hearing Officer Snow lacked competent evidence to support a finding that petitioner willfully refused to provide a breath sample for chemical analysis and that the trial court erred in affirming Hearing Officer Snow's decision. Petitioner specifically challenges Hearing Officer Snow's findings of fact numbered fourteen, "Officer Walls's opinion based on his experience was that the petitioner was not trying to submit a proper sample," and fifteen, "petitioner willfully refused to submit to a chemical analysis of his breath upon request of the law enforcement officer." We disagree with petitioner's contention.

Pursuant to North Carolina General Statutes, section 20-16.2(a), when a law enforcement officer that has reasonable grounds to believe that a person driving a vehicle on a highway or public vehicular area "has committed the implied-consent offense [the law enforcement officer] may obtain a chemical analysis of the person." Refusal to submit to a chemical analysis results in the suspension of the refusing person's driver's license for a twelve-month period. N.C. Gen. Stat. § 20-16.2(d) (2007). The person charged may request a hearing before the DMV to contest the suspension. N.C. Gen. Stat. § 20-16.2(e) (2007). "If the revocation for a willful refusal is sustained after the hearing,

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the person whose license has been revoked has the right to file a petition in the superior court" where the charges were made, however

[t]he superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.

N.C. Gen. Stat. § 20-16.2(e) (2007).

When this Court reviews decisions in which the trial court sits without a jury, "'the court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulkner, 132 N.C. App. 728, 732-33, 515 S.E.2d 452, 455 (1999) (quoting Gilbert Engineering Co. v. City of Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 858, disc. rev. denied, 314 N.C. 329, 333 S.E.2d 485 (1985)).

This Court has determined that

[a] "willful refusal" to submit to a chemical test within the meaning of G.S. 20-16.2(c) occurs where a motorist: "(1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test."

White v. Tippett, 187 N.C. App. 285, 290, 652 S.E.2d 728, 731 (2007) (quoting Mathis v. Division of Motor Vehicles, 71 N.C. App. 413, 415, 322 S.E.2d 436, 437-38 (1984)). We also have held that "[f]ailure to follow the instructions of the breathalyzer operator

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is an adequate basis for the trial court to conclude that petitioner willfully refused to submit to a chemical analysis." Tedder v. Hodges, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885 (1995) (citing Bell v. Powell, 41 N.C. App. 131, 135, 254 S.E.2d 191, 194 (1979)). See Bell v. Powell, 41 N.C. App. 131, 254 S.E.2d 191 (1979) (explaining that the petitioner's failure to follow instructions to provide a sufficient sample of breath provided adequate basis for the trial court to determine that he willfully refused to take the test); Poag v....