Powers v. Tatum

• Decision Date: 05 May 2009
• Docket Number: No. COA08-137.,COA08-137.
• Citation: 676 S.E.2d 89
• Parties: John Weskett POWERS, Plaintiff, v. George TATUM, Commissioner of the N.C. Division of Motor Vehicles, Defendant.
• Court: North Carolina Court of Appeals

676 S.E.2d 89

John Weskett POWERS, Plaintiff, v. George TATUM, Commissioner of the N.C. Division of Motor Vehicles, Defendant.

No. COA08-137.

Court of Appeals of North Carolina.

May 5, 2009.

Appeal by plaintiff from judgment entered 18 May 2007 by Judge Paul G. Gessner in

Wake County Superior Court. Heard in the Court of Appeals 24 September 2008.

George B. Currin, Raleigh, for plaintiff-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks and Associate Attorney General Jess D. Mekeel, for respondent-appellee.

STEELMAN, Judge.

The district court's dismissal of the criminal charge of driving while impaired based upon a violation of petitioner's right to have a witness present did not operate as collateral estoppel on the issue of willful refusal to submit to an Intoxilyzer test in a subsequent administrative license revocation hearing. Where petitioner fails to challenge any of the trial court's findings of fact on appeal, they are binding on the appellate court, and establish that petitioner's refusal to take the Intoxilyzer test was not based upon the fact that his witness was not present.

I. Factual and Procedural Background

On 12 April 2006, John Weskett Powers (petitioner) was arrested and charged with driving while impaired. Petitioner was taken to the Wake County Public Safety Center, where he was advised of his right to select a witness to view the chemical analysis testing procedures (Intoxilyzer test) pursuant to N.C. Gen.Stat. § 20-16.2(a)(6). Petitioner stated that he wanted to have a witness present for the test and called his girlfriend. Approximately, thirty-four minutes later, at 12:29 a.m., Officer Holmes, requested that petitioner submit to the Intoxilyzer test to determine his blood alcohol content. Petitioner refused.

On 11 May 2006, petitioner was informed by the Division of Motor Vehicles (DMV) that his license had been revoked for a period of one year due to his willful refusal to submit to chemical analysis pursuant to N.C. Gen.Stat. § 20-16.2(d). Petitioner requested and was granted a hearing before DMV on 14 August 2006, which was then continued until 2 October 2006. After the hearing was conducted, DMV sustained petitioner's license revocation, "effective October 14, 2006 at 12:01 a.m." On 13 October 2006, petitioner filed an action in the Superior Court of Wake County seeking (1) de novo judicial review of the administrative agency decision pursuant to N.C. Gen.Stat. § 20-16.2(e) and (2) an order staying DMV's license revocation. An order was entered that same day staying the revocation pending a final hearing in superior court.

On 23 January 2007, while his civil action was pending in superior court, petitioner filed a motion to dismiss the criminal charge of driving while impaired in the District Court of Wake County. On 13 April 2007, the district court granted defendant's motion based upon the finding that defendant's witness had made reasonable and diligent efforts to locate defendant prior to the expiration of the thirty-minute time period allowed for her arrival, and through no fault of her own was denied access to defendant. The district court concluded the denial of access to his witness violated defendant's constitutional rights under Article 1, § 23 of the North Carolina Constitution and defendant's statutory rights under N.C. Gen.Stat. § 20-16.2.

The petition for de novo review of the administrative revocation was heard in Wake County Superior Court on 18 April 2007. Petitioner argued that DMV was collaterally estopped from proceeding with the revocation because the district court had found that his statutory rights under N.C. Gen.Stat. § 20-16.2 had been violated. In a judgment entered 18 May 2007, Judge Gessner affirmed DMV's revocation order. Petitioner appeals.

II. Collateral Estoppel

In petitioner's first two arguments, he contends that the superior court erred in concluding that collateral estoppel did not bar DMV from revoking his driving privileges. We disagree.

"Under the doctrine of collateral estoppel, also known as issue preclusion, parties and parties in privity with them—even in unrelated causes of action—are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination." Scarvey v. First Fed. Savings & Loan Ass'n of Charlotte, 146 N.C.App. 33, 38, 552 S.E.2d 655, 658-59 (2001) (quotation omitted). The burden of establishing that an issue is barred by collateral estoppel is on the party relying thereon. Bluebird Corp. v. Aubin, 188 N.C.App. 671, 678, 657 S.E.2d 55, 61 (citation omitted), disc. review denied, 362 N.C. 679, 669 S.E.2d 741 (2008). To carry this burden, the moving party must show: (1) a prior suit resulting in a final judgment or decree; (2) between identical parties or those in privity; (3) involving one or more identical issues; (4) that the specific issue was litigated and necessary to the prior judgment; and (5) that the specific issue was actually determined. State v. Summers, 351 N.C. 620, 622, 528 S.E.2d 17, 20 (2000). Whether the doctrine of collateral estoppel is applicable and bars a specific claim or issue is a question of law subject to de novo review. Bluebird Corp., 188 N.C.App. at 678, 657 S.E.2d at 61 (citation omitted).

In regards to collateral estoppel in the context of driving while impaired in both civil and criminal proceedings, our Supreme Court has stated:

Under implied consent statutes such as G.S. 20-16.2, the general rule is that neither an acquittal of a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, nor a plea of guilty, nor a conviction has any bearing upon a proceeding before the licensing agency for the revocation of a driver's license for a refusal to submit to a chemical test. It is well established that the same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person's privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one is of no consequence to the other.

Joyner v. Garrett, 279 N.C. 226, 238, 182 S.E.2d 553, 562 (internal citation and quotation omitted), reh'g denied, 279 N.C. 397, 183 S.E.2d 241 (1971). Notwithstanding this precedent, our appellate courts have allowed the doctrine of collateral estoppel to be applied when the same issue existed in a civil revocation proceeding and a separate criminal proceeding. See, e.g., Summers, supra; Brower v. Killens, 122 N.C.App. 685, 472 S.E.2d 33 (1996), disc. review improvidently allowed, 345 N.C. 625, 481 S.E.2d 86 (1997).

In Summers, our Supreme Court distinguished its holding in Joyner and upheld this Court's determination that where the superior court overturned a DMV license revocation upon finding that the defendant did not willfully refuse to submit to the Intoxilyzer test, this decision estopped the relitigation of that same issue in the defendant's criminal prosecution for driving while impaired. Summers, 351 N.C. at 626, 528 S.E.2d at 22.

In Brower, this Court addressed the issue of whether the superior court, on de novo review of the DMV's revocation order, erred by concluding the DMV was estopped from relitigating whether the officer had probable cause to arrest the defendant for driving while impaired, when the district court had previously found there was insufficient evidence and granted the defendant's motion to dismiss in a criminal proceeding. Brower, 122 N.C.App. at 686, 472 S.E.2d at 35. We noted that "there is no legal distinction between probable cause to arrest in a criminal proceeding and `reasonable ground to believe' that the accused was driving while impaired in a license revocation hearing." Id. at 690, 472 S.E.2d at 37 (citations omitted). This Court affirmed the trial court's order, which collaterally estopped the DMV from relitigating the issue of probable cause on the basis that "the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical." Id. However, this Court carefully limited its holding to probable cause determinations in order to comport with our Supreme Court's ruling in Joyner. Id. at 689, 472 S.E.2d at 36.

Petitioner cites the preceding authority for the proposition that collateral estoppel is applicable in the instant case. Petitioner's argument is unavailing for two separate reasons.

First, petitioner has failed to demonstrate that the issue of willful refusal was previously litigated and determined by the district court. Summers, 351 N.C. at 622, 528 S.E.2d at 20. In the present case, Judge Gessner determined that:

2. The Respondent is not collaterally estopped from proceeding in this matter, as the district court's order makes no finding as to willfulness of the Petitioner's refusal.

3. The issue of whether the Petitioner's refusal was willful or not was not a matter before the district court.... The issue in that matter concerned whether the petitioner was denied his right to a witness to observe the intoxilyzer proceeding. Accordingly, the issue of whether the Petitioner's refusal was willful has not [been] litigated by the parties and has not been ruled upon by the district court or a court of competent jurisdiction.

Unlike Summers, where the order from the civil proceeding addressed the issue of willful refusal, a review of the order of the district court in the criminal proceeding confirms that the issue of willful refusal was not decided by that court. Instead, having determined that petitioner's right to a witness had been violated, the...