Montgomery v. NC Dept. of Motor Vehicles

• Decision Date: 04 August 1978
• Docket Number: No. C-C-77-122.,C-C-77-122.
• Citation: 455 F. Supp. 338
• Court: U.S. District Court — Western District of North Carolina
• Parties: Donald H. MONTGOMERY, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES and Commissioner Edward Powell, Defendants.

455 F. Supp. 338

Donald H. MONTGOMERY, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES and Commissioner Edward Powell, Defendants.

No. C-C-77-122.

United States District Court, W. D. North Carolina, Charlotte Division.

August 4, 1978.

William H. Elam, Charlotte, N. C., for plaintiff.

Jean A. Benoy, Deputy Atty. Gen., Raleigh, N. C., for defendants.

JUDGMENT

McMILLAN, District Judge.

On May 6, 1977, the plaintiff filed this action claiming that the procedures adopted by N.C.G.S. § 20-16.2(a) and the procedures which led to the revocation of his driving privileges for six months are an unconstitutional deprivation of a property right without due process of law and a denial of equal protection of the laws. He sought a preliminary and permanent injunction against the enforcement of the judgment revoking his license and a declaratory judgment that the statute on its face and as applied in his case is unconstitutional. On June 14, 1977, an order was filed denying the motion for a preliminary injunction. By this judgment the plaintiff is denied all relief sought.

N.C.G.S. § 20-16.2 provides:

"§ 20-16.2. Mandatory revocation of license in event of refusal to submit to chemical tests. — (a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. The law-enforcement officer shall designate which of the aforesaid tests shall be administered. The person arrested shall forthwith be taken before a person authorized to administer a chemical test and this person shall inform the person arrested both verbally and in writing and shall furnish the person a signed document setting out:

"(1) That he has a right to refuse to take the test;

"(2) That refusal to take the test will result in revocation of his driving privilege for six months;

"(3) That he may have a physician, qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of the law-enforcement officer; and

"(4) That he has the right to call an attorney and select a witness to view for him the testing procedures; but that the test shall not be delayed for this purpose for a period in excess of 30 minutes from the time he is notified of his rights.

"(b) Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered, subject to the provisions of G.S. 20-139.1.

"(c) The arresting officer, in the presence of the person authorized to administer a chemical test, shall request that the person arrested submit to a test described in subsection (a). If the person arrested willfully refuses to submit to the chemical test designated by the arresting officer, none shall be given. However, upon the receipt of a sworn report of the arresting officer and the person authorized to administer a chemical test that the person arrested, after being advised for his rights as set forth in subsection (a), willfully refused to submit to the test upon the request of the officer, the Division shall revoke the driving privilege of the person arrested for a period of six months.

"(d) Upon receipt of the sworn report required by G.S. 20-16.2(c) the Division shall immediately notify the arrested person that his license to drive is revoked immediately unless said person requests in writing within three days of receipt of notice of revocation a hearing. If at least three days prior to hearing, the licensee shall so request of the hearing officer, the hearing officer shall subpoena the arresting officer and any other witnesses requested by the licensee to personally appear and give testimony at the hearing. If such person requests in writing a hearing, he shall retain his license until after the hearing. The hearing shall be conducted in the county where the arrest was made under the same conditions as hearings are conducted under the provisions of G.S. 20-16(d) except that the scope of such hearing for the purpose of this section shall cover the issues of whether the law-enforcement officer had reasonable grounds to believe the person had been driving or operating a motor vehicle upon a highway or public vehicular area while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he willfully refused to submit to the test upon the request of the officer. Whether the person was informed of his rights under the provision of G.S. 20-16.2(a)(1), (2), (3), (4) shall be an issue. The Division shall order that the revocation either be rescinded or sustained. If the revocation is sustained, the person shall surrender his license immediately upon notification.

"(e) If the revocation is sustained after such a hearing, the person whose driving privilege has been revoked, under the provisions of this section, shall have the right to file a petition in the superior court for a hearing de novo to review the action of the Division in the same manner and under the same conditions as is provided in G.S. 20-25. . . ."

By a stipulation filed August 24, 1977, the parties have agreed that the following facts are true:

On September 13, 1975, the plaintiff was arrested for driving under the influence of alcohol in Union County, North Carolina. After being advised of his rights and the results of a refusal as required by N.C.G.S. § 20-16.2(a), the plaintiff was requested to submit to a breathalyzer examination. The plaintiff refused. On November 10, 1975, the North Carolina Department of Motor Vehicles issued a notice that the plaintiff's driver's license was revoked for six months beginning November 20, 1975. The plaintiff within three days of receipt of the notice requested a hearing in writing. Under subsection (d) of § 20-16.2, this request automatically stayed the revocation. The revocation was sustained by a hearing officer of the North Carolina Department of Motor Vehicles. On December 5, 1975, the plaintiff filed a petition for stay of the revocation and for hearing de novo in Mecklenburg County Superior Court to determine whether his license was properly revoked. On December 9, 1975, an order of the Superior Court stayed enforcement of the license revocation notice and set the case for de novo hearing. That hearing was conducted on January 26, 1976. The trial judge, pursuant to a judgment filed January 29, 1976, found among other things that the arresting officer had reasonable grounds to arrest the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor, and he affirmed the revocation. The plaintiff sought review of the decision by the North Carolina Court of Appeals and the North Carolina Supreme Court. On December 15, 1976,...