Guzman v. Gore
| Decision Date | 03 August 2010 |
| Docket Number | No. 08 CVS 860,NO. COA0 9-1241,COA0 9-1241,08 CVS 860 |
| Court | North Carolina Court of Appeals |
| Parties | EDUVIGES GARCIA GUZMAN,Petitioner, v. WILLIAM C. GORE, JR.,COMMISSIONER OF THE NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent. |
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.
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.
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 howto 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 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.
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)).
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 operatoris 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) (); Poag v. Powell, 39 N.C. App. 363, 366, 250 S.E.2d 93, 96 (1979) ().
In the case sub judice, petitioner was read his rights and signed the form acknowledging that refusing to submit to a breath analysis would result in the suspension of his driving privileges. Officer Wall testified that he demonstrated the appropriate technique for providing a sufficient breath analysis sample and that petitioner had five opportunities to do so. In the opinion of Officer Wall, a certified chemical analyst, petitioner did not follow the instructions given to provide a sufficient sample. Consequently, Officer Wall determined that petitioner willfully refused to provide a sample for chemical analysis.
We hold that the evidence presented at the 18 September 2008 hearing was sufficient to support Hearing Officer Snow's challenged findings of fact. These findings of fact support the conclusion of law that petitioner willfully refused to submit to chemicalanalysis. Accordingly, petitioner's assignment of error is overruled.
Next, petitioner argues that because he had pending criminal charges against him, he was unable to testify or provide evidence in his defense because of his fear that it would be used against him in the criminal proceedings. Petitioner claims that Hearing Officer Snow improperly denied his motion to continue the hearing until after the criminal proceedings resulting from the same incident were resolved and violated his right to a fair hearing guaranteed by the Due Process Clause of the United States Constitution. We disagree.
Generally, this Court reviews denial of a motion to continue for abuse of discretion. Morin v. Sharp, 144 N.C. App. 369, 3 73, 549 S.E.2d 871, 873 (2001). "'A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.'" Pellom v. Pellom, 194 N.C. App. 57, 62, 669 S.E.2d 323, 325 (2008) (quoting White v. White, 312 N.C. 770, 777, ...
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