Lee v. Gore

• Decision Date: 17 August 2010
• Docket Number: No. COA09-370-2.,COA09-370-2.
• Citation: 698 S.E.2d 179
• Parties: Richard James LEE, Petitioner-Appellant,v.William C. GORE, Jr., as Commissioner of the Division of Motor Vehicles, North Carolina Department of Transportation, Respondent-Appellee.
• Court: North Carolina Court of Appeals

698 S.E.2d 179

Richard James LEE, Petitioner-Appellant,v.William C. GORE, Jr., as Commissioner of the Division of Motor Vehicles, North Carolina Department of Transportation, Respondent-Appellee.

No. COA09-370-2.

Court of Appeals of North Carolina.

Aug. 17, 2010.

Appeal by Petitioner from order entered 22 October 2008 by Judge Henry E. Frye, Jr. in Superior Court, Wilkes County. This matter was originally heard in the Court of Appeals 27 October 2009. An opinion was filed by this Court on 19 January 2010, vacating the order of the Wilkes County Superior Court and remanding to the North Carolina Division of Motor Vehicles. Respondent filed a Petition for Rehearing on 23 February 2010. An order granting the Petition for Rehearing was filed on the 19th day of March 2010.

Richard J. Lee, J.D., LL.M., Petitioner-Appellant, pro se.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for Respondent-Appellee.

McGEE, Judge.

Petitioner, a resident and registered driver of the State of Florida, was driving through Wilkes County just before midnight on 22 August 2007, when he was stopped by Officer Jason Ratliff of the Wilkesboro Police Department. Officer Ratliff testified at a later review hearing before the Division of Motor Vehicles (the Division) that he believed probable cause existed to arrest Petitioner for driving while impaired. Officer Ratliff transported Petitioner to an intake center to administer a chemical analysis (by an Intoxilyzer alcohol analyzer) to determine the concentration of alcohol in Petitioner's body. Officer Ratliff testified that Petitioner never specifically refused to submit to the chemical analysis. Officer Ratliff told Petitioner several times that failure to take the chemical analysis would result in Petitioner's being marked as willfully refusing the chemical analysis, and would result in the revocation of Petitioner's North Carolina driving privileges. However, Petitioner did not agree to take the Intoxilyzer test and Officer Ratliff marked “refused” on a form DHHS 3908 at 12:47 a.m. on 23 August 2007.

Officer Ratliff testified he then went to a magistrate to execute an affidavit concerning Petitioner's refusal to submit to a chemical analysis. Form DHHS 3907, titled “Affidavit and Revocation Report,” was created by the Administrative Office of the Courts for this purpose. Form DHHS 3907 includes fourteen sections with an empty box before each section. The person swearing to the accuracy of the affidavit, having been “first duly sworn,” checks the boxes relevant to the circumstances, and then signs the affidavit in front of an official authorized to administer oaths and execute affidavits. Section fourteen of form DHHS 3907 states: “The driver willfully refused to submit to a chemical analysis as indicated on the attached [form] [ ] DHHS 3908, [ ] DHHS 4003.” 3 Officer Ratliff testified that he did not check the box for section fourteen and the affidavit he sent to the Division did not have the box for section fourteen checked. Therefore, the “Affidavit and Revocation Report” sent to the Division did not state that Petitioner had willfully refused to submit to a chemical analysis.

Upon receipt of the form DHHS 3907 sent by Officer Ratliff, the Division revoked Petitioner's North Carolina driving privileges. Petitioner requested a review hearing to contest the revocation,¹ and a hearing was conducted on 20 November 2007 before Administrative Hearing Officer P.M. Snow. At this hearing, it was discovered that the copy of form DHHS 3907 received by the Division had an “x” in the section fourteen box. All the other boxes marked on the form DHHS 3907 contained check marks, not “x's.” Petitioner's copy of the form DHHS 3907 did not contain the “x” in the box preceding section fourteen.

Hearing Officer Snow decided that the revocation of Petitioner's North Carolina driving privileges was proper, and Petitioner appealed to Wilkes County Superior Court, which affirmed the decision of Hearing Officer Snow. Petitioner then appealed to this Court. Our Court held that the Division lacked the authority to revoke Petitioner's North Carolina driving privileges, because the Division never received an affidavit indicating that Petitioner had willfully refused to submit to a chemical analysis of his blood alcohol level. We therefore vacated the order of the superior court affirming the decision of Hearing Officer Snow, and remanded to the Division for reinstatement of Petitioner's North Carolina driving privileges. Lee v. Gore, ---N.C.App. ----, 688 S.E.2d 734 (2010) (filed 19 January 2010). Respondent filed a petition for rehearing in the matter on 23 February 2010, requesting our Court to reconsider certain issues. By order filed 19 March 2010, we granted Respondent's petition, limited to certain issues, and directed Respondent and Petitioner to submit briefs addressing the limited issues included in our order. We now file an amended opinion in this matter in light of the additional arguments presented in the parties' supplemental briefs. This opinion supersedes and replaces the opinion filed 19 January 2010 Lee v. Gore, --- N.C.App. ----, 688 S.E.2d 734 (2010).

Analysis-Willful Refusal

In Petitioner's second argument, he contends the trial court erred in upholding the Division's revocation of Petitioner's North Carolina driving privileges because the Division was without authority to revoke Petitioner's driving privileges.

N.C. Gen.Stat. § 20-1 (2006) ² states: “The Division of Motor Vehicles of the Department of Transportation is established. This Chapter sets out the powers and duties of the Division.” Therefore, we must look to N.C. Gen.Stat. § 20-1 et seq. for the full scope of the duties and powers conferred upon the Division by the General Assembly. N.C. Gen.Stat. § 20-16.2 (2006) is the statute delineating the powers of the Division when a person has been charged with an implied-consent offense, and that person refuses to submit to a chemical analysis.

(c) Request to Submit to Chemical Analysis.-A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.

(c1) Procedure for Reporting Results and Refusal to Division.-Whenever a person refuses to submit to a chemical analysis ... the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating [ ]:

....

(5) The results of any tests given or that the person willfully refused to submit to a chemical analysis.

The officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.

(d) Consequences of Refusal; Right to Hearing before Division; Issues.- Upon receipt of a properly executed affidavit required by subsection (c1), the Division shall expeditiously notify the person charged that the person's 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.

....

(e) Right to Hearing in Superior Court.-If the revocation for a willful refusal 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 on the record. The 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.G.S. § 20-16.2 (emphasis added).³

Respondent argues that our Court should look to the title of N.C.G.S. § 20-16.2: “Implied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis[,]” and to section (a) of that statute, which mandates that a person authorized to perform a chemical analysis must inform the suspect of certain rights before administering the chemical analysis. N.C.G.S. § 20-16.2(a) states, in part:

Basis for Officer to Require Chemical Analysis; Notification of Rights.-Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person's breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:

(1) You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.

N.C.G.S. § 20-16.2(a). Respondent contends that the Division is empowered to suspend driving privileges when “a person refuses to submit to chemical analysis[.]” Respondent's presentation of the requirements of N.C.G.S. § 20-16.2 seems to negate any requirement that the refusal be “willful.” However, Respondent also states that N.C.G.S. § 20-16.2(d)...