McDowell v. Tatum, No. COA06-1212 (N.C. App. 12/18/2007), COA06-1212

CourtCourt of Appeal of North Carolina (US)
Docket NumberNo. COA06-1212,COA06-1212
Decision Date18 December 2007

Page 1

Unpublished Opinion

No. COA06-1212
Court of Appeals of North Carolina.
Filed December 18, 2007
This case not for publication

Avery County No. 05 CVS 344.

Appeal by respondent from order entered 15 May 2006 by Judge Ronald K. Payne in Avery County Superior Court. Heard in the Court of Appeals 11 April 2007.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State-appellant.

Jeffrey M. Hedrick, for petitioner-appellee.


George Tatum, Commissioner of the North Carolina Division of Motor Vehicles ("respondent"), appeals from a 15 May 2006 order permanently enjoining respondent from revoking or suspending Kenneth Lee McDowell's ("petitioner") driving privilege for his refusal to submit to a chemical breath analysis. We reverse.

On 21 August 2005, just prior to 4:32 p.m., Sergeant Byron Clawson ("Sgt. Clawson") of the Banner Elk Police Department was dispatched to the scene of an accident on Highway 184. Sgt. Clawson arrived on the scene approximately three minutes later and observed a vehicle that was positioned upside down on the highway. Sgt. Clawson identified petitioner as the driver of the vehicle. Sgt. Clawson approached the vehicle and checked to see if petitioner or the two passengers were injured. When Sgt. Clawson asked petitioner to walk back to his patrol vehicle and take a seat inside, he noticed petitioner was unsteady on his feet. Sgt. Clawson noted that this unsteadiness could have been the result of trauma from the accident.

During the accident investigation, Sgt. Clawson noticed that petitioner's eyes were red and watery and his speech "slightly slurred." At the conclusion of the investigation, Sgt. Clawson noticed a strong odor of alcohol. When he asked petitioner to recite the alphabet, petitioner was unable to satisfactorily complete the test. Petitioner refused to attempt other field sobriety tests and refused to submit to an Alco-Sensor test. Sgt. Clawson then arrested petitioner for driving while impaired and transported him to the Avery County Law Enforcement Center.

At the law enforcement center, at 6:06 p.m., Sgt. Clawson asked petitioner to submit to a chemical analysis of petitioner's breath. Petitioner not only failed to verbally respond to Sgt. Clawson's request, he also failed to approach the Intoxilyzer machine. As a result, Sgt. Clawson recorded that petitioner willfully refused the test.

There was no evidence offered to establish the "actual or exact time" of the petitioner's automobile accident. Petitioner was not asked any questions about the time he consumed alcoholic beverages or how much he had consumed. The trial court found in Finding of Fact No. 10 that, "The Respondent has offered no evidence which tends to show that the alcoholic beverage in this case was consumed either prior to or during the operation of the vehicle as an essential element necessary for a violation of N.C. Gen. Stat. . 20-138.1."

Avery County Superior Court Judge Ronald K. Payne found the facts stated above and concluded on those facts that Sgt. Clawson had no reasonable grounds to believe that petitioner had committed an implied consent offense because there was "no evidence to show that any alcoholic beverage was consumed prior to or during the driving; therefore the officer's conclusion that the [petitioner] was impaired or that he had committed an implied consent offense is mere speculation." Judge Payne further concluded that "[t]he charging officer had no reasonable grounds to believe that the Petitioner had committed an implied consent offense and no basis to request a chemical analysis; therefore the revocation of his privilege to drive is without legal justification." He therefore ordered that respondent be enjoined from revoking or suspending petitioner's driving privilege as a result of his refusal to submit to chemical analysis. From that order, respondent appeals.

On appeal, respondent brings forth two assignments of error. In both assignments respondent argues the trial court erred in concluding, as a matter of law, that Sgt. Clawson did not have reasonable grounds to believe that petitioner was driving while impaired. We agree. First, we note that respondent has not assigned error to the trial court's findings of fact, and those findings are therefore binding on appeal. In re S.N.H. & L.J.H., 177 N.C. App. 82, 83, 627 S.E.2d 510, 512 (2006). Thus, our sole determination is whether the trial court erred by concluding, as a matter of law, that there were no reasonable grounds for Sgt. Clawson to believe petitioner was guilty of driving while impaired. We review conclusions of law de novo. State v. Ripley, 360 N.C. 333, 339, 626 S.E.2d 289, 293 (2006).

North Carolina General Statute § 20-16.2(a) states in relevant part as follows:

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. The charging officer shall designate the type of chemical analysis to be administered, and it may be administered when the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense.

N.C. Gen. Stat. § 20-16.2(a) (2005).

"Reasonable grounds" has been held to be coterminous with "probable cause." Rock v. Hiatt, 103 N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991). Thus, the issue here is whether Sgt. Clawson had probable cause to arrest petitioner for the implied consent offense of driving while impaired. "Probable cause exists if the facts and circumstances at that moment within the charging officer's knowledge and of which the officer had reasonably trustworthy information are such that a prudent man would believe that the suspect had committed or was committing an offense." Moore v. Hodges, 116 N.C. App. 727, 730, 449 S.E.2d 218, 220 (1994).

"[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n.13, 76 L. Ed. 2d 527, 552 (1983). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty." State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (citation omitted). "The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 773 (2003).

Proceedings under N.C. Gen. Stat. . 20-16.2 for the civil revocation of a driver's license and the criminal prosecution of the driving while impaired charge have some important differences. Proceedings for revocation of the driver's license are civil not criminal. Joyner v. Garrett, 279 N.C. 226, 234, 182 S.E.2d 553, 559 (1971). However, this...

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