Joyner v. Garrett

• Citation: 182 S.E.2d 553,279 N.C. 226
• Decision Date: 30 July 1971
• Docket Number: No. 75,75
• Court: United States State Supreme Court of North Carolina
• Parties: Donald Gray JOYNER v. Joe W. GARRETT, Commissioner, N.C. Department of Motor Vehicles.

Page 553

182 S.E.2d 553

279 N.C. 226

Donald Gray JOYNER v. Joe W. GARRETT, Commissioner, N.C. Department of Motor Vehicles.

No. 75.

Supreme Court of North Carolina.

July 30, 1971.

Rehearing Denied Aug. 30, 1971.

Vaughn S. Winborne, Raleigh, for plaintiff appellant.

Atty. Gen. Robert Morgan, Asst. Attys. Gen., Wm. W. Melvin and T. Buie Costen, for respondent appellee.

SHARP, Justice:

Petitioner 'prays' this Court to rescind the action of the Department and to declare his license 'in good standing as it pertains to this arrest.' He contends that he is entitled to this relief because (1) he was denied the right to cross-examine Patrolman Spainhour at the administrative hearing; (2) the hearing officer did not find that he Wilfully failed to submit to the chemical test, and therefore his findings did not sustain the Department's order of revocation; (3) Judge Clark erred in ruling that the burden of proof is on petitioner; and (4) the evidence was insufficient to sustain a finding that petitioner wilfully refused to take the test.

Summarized, except when quoted, G.S. § 20--16.2 provides in pertinent part: Any person arrested upon the charge of operating a motor vehicle on a public highway of this State while under the influence of intoxicating liquor shall submit to a chemical test of his breath or blood upon the request of a law-enforcement officer having reasonable grounds to believe him guilty of the charge. If the accused 'wilfully refuses' the request, no test shall be given, 'but the Department, upon the receipt of a sworn report of the law-enforcement officer or other witness that the arrested person had been driving a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor and that the person had wilfully refused to submit to the test upon the request of the law-enforcement officer, shall revoke his driving privilege for a period of sixty days.' Upon receipt of the sworn report the Department shall notify the arrested person that 'his license to drive is revoked immediately' unless he files a written request for a hearing within three days of receipt of the notice. Such a request permits the person to retain his license until after the hearing. The scope of the hearing 'shall cover the issues of whether the person had been driving a motor vehicle upon the public highways of the State * * * while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test upon the request of the officer. Whether the person was informed that his privilege to drive would be revoked if he refused to submit to the test shall be an issue.' The hearing shall be conducted under the conditions specified in G.S. § 20--16(d).

G.S. § 20--16(d), Inter alia, empowers the duly authorized agents of the Department to administer oaths and to issue subpoenas for witnesses and the production of relevant books and papers. 'Upon such hearing the Department shall either rescind its order of suspension, Or good cause appearing therefor, may extend the suspension of such license.' (Emphasis added.) If the revocation is sustained G.S. § 20--25 gives the person whose driving privilege has been revoked 'a right to file a petition within thirty (30) days thereafter for a hearing in the matter in the superior court * * *.' Upon the filing of such a petition for review the court has jurisdiction 'to take testimony and examine into the facts of the case, and to determine whether the petitioner * * * is subject to suspension * * * of license * * *.'

From the foregoing statutes it is clear that any person whose driver's license has been suspended by the Department of Motor Vehicles under the provisions of G.S. § 20--16.2(d) has the right to a 'full De novo review by a Superior Court judge.' Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 476, 164 S.E.2d 2, 5. Accord, In re Donnelly, 260 N.C. 375, 132 S.E.2d 904; In re Revocation of License of Wright, 228 N.C. 301, 45 S.E.2d 370; Id., 228 N.C. 584, 46 S.E.2d 696; Annot., 97 A.L.R.2d 1367, 1371. This means the court must hear the matter 'on its merits from beginning to end as if no trial or hearing had been held' by the Department and without any presumption in favor of its decision. In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649. No discretionary power is conferred upon the court in matters pertaining to the revocation of licenses. If, under the facts found by the judge, the statute requires the suspension or revocation of petitioner's license 'the order of the department entered in conformity with the facts found must be affirmed.' In re Revocation of License of Wright, 228 N.C. at 589, 46 S.E.2d at 700. The power to issue, suspend, or revoke a driver's license is vested exclusively in the Department of Motor Vehicles, subject to review by the Superior Court and, upon appeal, by the appellate division. Harrell v. Scheidt, Com'r of Motor Vehicles, 243 N.C. 735, 92 S.E.2d 182; State v. Cooper, 224 N.C. 100, 29 S.E.2d 18.

In this case petitioner concedes that at the time of his arrest he was operating a motor vehicle upon a public highway while under the influence of an intoxicant and that twelve days later he pled guilty to the offense. He does not deny that he was requested to take the Breathalyzer test, that he was told he could call an attorney and select a witness to view the test, or that he was apprised of the consequences of his refusal to take the test. His contention is that he does not remember anything the officer said to him; that he was so drunk he was incapable of Wilfully refusing to take the test. Thus, the only issue before the Department and in the Superior Court on appeal was whether petitioner wilfully refused to submit to the test.

We note that section (c) of G.S. § 20--16.2 directs that the chemical test shall not be given if the arrested person 'wilfully refuses' to take it and requires the Department to revoke his license upon the law-enforcement officer's sworn report that the person had 'wilfully refused' to submit to the test. However, section (d), which specifies the issues determining whether the initial suspension of petitioner's license should be sustained, states the third issue to be 'whether he refused to submit to the test upon the request of the officer.' In that issue the word Wilfully is omitted. Obviously, however, when the legislature used the word Refused in section (d) it referred back to the wilful refusal specified in section (c) and embraced the concept of a conscious choice purposely made. It is equally clear that the Department's hearing officer employed the word in that sense when he stated the issues In the words of the statute in his report of petitioner's hearing. In Black's Law Dictionary (4th Ed., 1951) Refusal is defined as 'the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.' See also State v. Arnold, 264 N.C. 348, 141 S.E.2d 473. This is the sense of the word Refuse as used in G.S. § 20--16.2 and as used by the Department in its proceedings under that statute. Accordingly, Judge Clark specifically found as a fact that petitioner 'did wilfully refuse to submit to the test.'

Petitioner contends the Department's finding that he 'did refuse' to take the test was insufficient to sustain its order suspending his license; that a finding of Wilful refusal was required. This contention is without merit. However, it is suggested that in future proceedings under G.S. § 20--16.2, in the interest of clarity and uniformity, the Department should employ the word Wilful or Willfully in its findings and orders dealing with an arrested person's refusal to take the test.

Petitioner also complained in the Superior Court that at the administrative hearing he 'was not afforded the right of cross-examination and the right to confront his accuser.' On this appeal he says that the evidence against him at the first hearing was only 'the printed form affidavit' of the arresting officer. 'Rules governing the admissibility of evidence in civil proceedings generally have been applied in proceedings for the suspension or revocation of a driver's license.' 60 C.J.S. Motor Vehicles § 164.29 (1969). G.S. § 20--16.2 does not make the law-enforcement officer's sworn report prima facie evidence that the arrested eprson wilfully refused to submit to the Breathalyzer test. Therefore, if he objects to its introduction, the report cannot be used as evidence against him.

The record, however, fails to show that at the hearing he either objected to the introduction of the sworn report or demanded the right to cross-examine Patrolman Spainhour. Evidence admitted without objection is properly considered by the court and, on appeal, the question of its competency cannot be presented for the first time. 4 Strong, N.C. Index Trial § 15 (1961). Petitioner's blanket exceptions to the hearing officer's report and to the Department's order of suspension will not sustain his assignment of error that he was denied the right to cross-examine Officer Spainhour. 'An assignment of error is not a substitute for an exception.' Clark Equipment Company v. Johnson, Comr. of Revenue, 261 N.C. 269, 273, 134 S.E.2d 327, 330.

Upon receipt of Patrolman Spainhour's sworn report that petitioner had wilfully refused to take the Breathalyzer test, G.S. § 20--16.2 required the Department to revoke his license. Petitioner's timely request for a hearing, however, temporarily suspended the revocation. After the hearing the Department could either rescind its order of suspension or 'good cause appearing therefor' extend the suspension of his license. G.S. § 20--16(d). Upon the hearing, therefore, the burden was upon the Department to show that petitioner had wilfully refused to take the test.

Proceedings involving the suspension or revocation of a license to operate a motor...