Potchak v. Tatum, No. COA07-1303 (N.C. App. 5/6/2008)
| Decision Date | 06 May 2008 |
| Docket Number | No. COA07-1303,COA07-1303 |
| Parties | DAVID GERALD POTCHAK, Petitioner, v. GEORGE TATUM, COMMISSIONER, NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent. |
| Court | North Carolina Court of Appeals |
Amos Granger Tyndall, P.A., by Amos Granger Tyndall, for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General John W. Coggleton, for respondent-appellee.
Where the trial court's finding of a willful refusal by petitioner to submit to a chemical analysis under N.C. Gen. Stat. § 20-16.2(c) was supported by competent evidence, the trial court did not err in affirming respondent's revocation of petitioner's driver's license for twelve months.
At the outset of his de novo hearing in superior court, see N.C. Gen. Stat. § 20-16.2(e), petitioner stipulated that he had been charged with driving while impaired (DWI), that North Carolina Highway Patrol Trooper M.G. Blake had reasonable grounds for the charge, and that petitioner was properly advised of his rights. See N.C. Gen. Stat. § 20-16.2(d)(1), (2), (4) (2007). Accordingly, the sole issue before the court was whether petitioner "willfully refused to submit to a chemical analysis." N.C. Gen. Stat. § 20-16.2(d)(5).
Trooper Blake testified that he arrested petitioner for DWI on the night of 22 February 2006. Upon stopping the defendant, Trooper Blake administered an alco-sensor test and subsequently transported defendant to the Durham County Jail for testing by an Intoxilyzer 5000. Blake was present when Durham Police Officer J.J. Ellsworth attempted to administer the Intoxilyzer.
Officer Ellsworth, a certified chemical analyst, testified that he advised petitioner of his rights and obtained petitioner's signature indicating his understanding of his rights at 11:01 p.m on 22 February 2006. At 11:19 p.m., Trooper Blake asked petitioner to give a breath sample. Petitioner stood up and vomited into a trash can, requiring Ellsworth to record a "no-test" at 11:22 p.m. and re-start the observation period. At 11:43 p.m., petitioner provided a valid breath sample which registered his blood alcohol level as .17. As Ellsworth prepared the Intoxilyzer for the required second sample, petitioner "sort of belched, stood back, went and sat down." Ellsworth asked him, "Are you going to take this test?" Petitioner "shook his head, no." Seconds later, he leaned over the trash can and vomited a second time. Ellsworth pushed the button on the Intoxilyzer indicating a refusal by petitioner at 11:43 p.m. Although he was advised that Ellsworth "was treating it as a refusal when he shook his head[,]" petitioner did not ask to complete the test.
Petitioner testified that he did not remember the events of 22 February 2006, but hypothesized he "wouldn't have refused" the Intoxilyzer if he had understood the consequences of a refusal.
In its judgment affirming the revocation of petitioner's driver's license, the trial court found, inter alia, that petitioner was properly advised of his Intoxilyzer rights under N.C. Gen. Stat. § 20-16.2(a), that he "signed the rights form[,]" and that he "understood his rights." The court made the following additional findings regarding petitioner's actions following his initial breath sample indicating a blood alcohol level of .17:
20. Petitioner was advised that he would have to provide a second valid sample of breath by Officer Ellsworth.
21. Before being asked by the officer to provide that second breath sample, petitioner sat down due to his physical condition. Officer Ellsworth then asked petitioner to provide a second sample of breath. . . . [T]he officer observed the petitioner shake his head from side to side, which the officer took to mean that petitioner had declined the request to submit a second breath test and that petitioner would not submit to the test. Immediately following this indication of the petitioner by shaking his head, he began to vomit again. Officer Ellsworth was of the opinion that the petitioner . . . had willfully refused the second breath test.
. . .
23. . . . The Court finds as a fact from the totality of the evidence that the petitioner willfully refused the second breath test.
In its conclusions of law, the court reiterated its determination that petitioner was informed of his rights under N.C. Gen. Stat. § 20-16.2(a) and "willfully refused to submit to a chemical analysis" after being arrested on reasonable grounds for an implied consent offense.
On appeal, petitioner claims that the evidence was insufficient to show that he willfully refused to submit to the Intoxilyzer under N.C. Gen. Stat. § 20-16.2(c)-(d). He argues that the evidence established his inability to provide a sequential breath sample, rather than his unwillingness to do so. Petitioner further contends that Officer Ellsworth's 11:43 p.m. inquiry into whether he "was going to take the test" did not constitute a proper request to submit to chemical analysis under N.C. Gen. Stat. § 20-16.2(c), inasmuch as Ellsworth was required to wait fifteen minutes after petitioner vomited before using the Intoxilyzer.
In reviewing a judgment entered following a bench trial, "'the court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulkner, 132 N.C. App. 728, 732-33, 515 S.E.2d 452, 455 (1999) (quotation omitted). As trier of fact, the superior court is entitled to assess the credibility of witnesses, resolve conflicts or discrepancies in the evidence, and draw any reasonable inferences supported thereby. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). Whether the court's findings of fact support its conclusions of law is fully reviewable on appeal. State v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993).
"A person's refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c)." N.C. Gen. Stat. § 20-139.1(b3) (2007). For purposes of this statute,
[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 not to take the test; and (4) knowingly permits the prescribed...
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