Mathis v. North Carolina Div. of Motor Vehicles, 8428SC602
| Docket Nº | No. 8428SC602 |
| Citation | 322 S.E.2d 436, 71 N.C.App. 413 |
| Case Date | November 20, 1984 |
| Court | Court of Appeal of North Carolina (US) |
Page 436
v.
NORTH CAROLINA DIVISION OF MOTOR VEHICLES and Commissioner
of Motor Vehicles, R.W. Wilkins, Jr.
Roberts, Cogburn, McClure & Williams by Max O. Cogburn and Isaac N. Northrup, Jr., Asheville, for petitioner-appellant.
Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen., Jean A. Benoy, Raleigh, for respondent-appellee.
VAUGHN, Chief Judge.
Plaintiff principally contends that the evidence does not show that he "willfully refused" to submit to a chemical test and is therefore insufficient to sustain the license suspension order entered against him. G.S. 20-16.2 (Cum.Supp.1981).
[71 N.C.App. 415] In support of his position, plaintiff points out that he was willing to take the test at 7:15 p.m., within 30 minutes of his first explicit refusal at 6:46 p.m. Plaintiff contends that there was no evidence that he either heard or acknowledged Officer Lefler's request until that time or knowingly let the 30 minute time limit expire. According to plaintiff, "there is only evidence that he was told of the 30 minute time limit" and there is "no evidence that petitioner voluntarily elected not to take the test." We believe plaintiff's arguments to be patently untenable and clearly contrary to existing case law.
G.S. 20-16.2 (Cum.Supp.1981) does not require that a suspected drunk driver submit to a chemical test. Montgomery v. North Carolina Dep't of Motor Vehicles, 455 F.Supp. 338 (W.D.N.C.1978), aff'd, 599 F.2d 1048 (4th Cir.1979). It does, however, provide that a suspect who "willfully refuses" a request to submit to the test will have his driving privileges automatically revoked for a period of six months. The standard of "willful refusal" in this context is clear. Once apprised of one's rights and having received a request to submit, a driver is allowed 30 minutes in which to make a decision. A "willful refusal" occurs whenever a driver "(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
Page 438
not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test." Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980).In the present case, plaintiff was requested to take the test and acknowledged an understanding of his rights. Plaintiff was told of the 30 minute time limit and was repeatedly asked if he would take the test before...
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