Price v. North Carolina Dept. of Motor Vehicles

Decision Date20 June 1978
Docket NumberNo. 7726SC295,7726SC295
Citation36 N.C.App. 698,245 S.E.2d 518
PartiesFrancis Edward PRICE, Jr. v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES.
CourtNorth Carolina Court of Appeals

Atty. Gen. Rufus L. Edmisten, by Deputy Atty. Gen. Jean A. Benoy, Raleigh, for the respondent-appellee.

Ruff, Bond, Cobb, Wade & McNair, by James O. Cobb, Charlotte, for the petitioner-appellant.

MORRIS, Judge.

In his brief petitioner raises the question of whether the refusal to submit to a breathalyzer test until one's attorney arrives in person at the site of the test when that refusal delays the test more than 30 minutes amounts to a "willful refusal" under G.S. 20-16.2. Obviously, if one has either a statutory or a constitutional right to await the arrival in person of the attorney, then the facts of this case would not constitute a "willful refusal" under G.S. 20-16.2, and petitioner's driving privilege could not be revoked.

Petitioner advances both statutory arguments and constitutional arguments. Obviously, petitioner's rights under the Constitution of the United States have not been violated. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Our Supreme Court has upheld the admissibility of evidence obtained under G.S. 20-16.2 against constitutional challenges. State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974).

Petitioner advances two statutory arguments. First, he argues that he substantially complied with G.S. 20-16.2. Next, he argues that if he has not complied with G.S. 20-16.2, then G.S. 20-16.2 and G.S. 15A-501(5) are in conflict and that G.S. 15A-501(5) controls. We will address these arguments in order.

The relevant portions of G.S. 20-16.2 provide that "he (the accused) 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." (Emphasis supplied.) G.S. 20-16.2(a)(4). Obviously, there is an ambiguity. The first clause sets out two rights which the petitioner has: (1) the right to call an attorney and (2) the right to select a witness. The second clause says that the test shall not be delayed for more than 30 minutes "for this purpose ". "This purpose" is clearly singular. However, the preceding clause sets out two rights. Thus, there is an ambiguity.

Petitioner argues that "this purpose" refers to the right "to call an attorney". Petitioner asserts that one must call an attorney within the 30-minute limit, but that one has a reasonable time of not less than 41 minutes (in this case) within which to select a witness and secure his attendance. We disagree for reasons that will be subsequently set out.

Next, petitioner argues that G.S. 15A-501(5) gives him the right to confer in person with his attorney prior to taking the breathalyzer test and that G.S. 20-16.2 impermissibly restricts that right. G.S. 15A-501 provides in pertinent part that "(u)pon the arrest of a person, . . . a law enforcement officer . . . (m)ust without unnecessary delay advise the person arrested of his right to communicate with counsel . . . and must allow him reasonable time and reasonable opportunity to do so." Petitioner argues that he has a reasonable time to confer in person with counsel prior to the test and that, in this case, 41 minutes was a reasonable time. Again, we must disagree with petitioner's construction.

We acknowledge the ambiguity in G.S. 20-16.2(a)(4) and the potential conflict between G.S. 20-16.2(a)(4) and G.S. 15A-501(5). Because of its ambiguity, G.S. 20-16.2(a)(4) can be interpreted in three ways: (1) We could assume that the legislature chose the wrong language and that the legislature really meant to say "these purposes". Thus, the statute should read "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 these purposes for a period in excess of 30 minutes." This interpretation requires rewriting the statute. (2) We might assume, as the defendant does, that the legislature used the singular (i. e., "this purpose") intentionally and that "this purpose" refers to the right to "call an attorney" and not the right to "select a witness". Thus, an accused would have only 30 minutes to call an attorney. However, an accused would have some other length of time to select a witness (it is unclear how long). (3) We might assume that the legislature used the singular (i. e., "this purpose") intentionally and that "this purpose" refers to the right to "select a witness", the phrase closest to it, and not to the right to "call an attorney". Thus, an accused would have a reasonable time (as limited by G.S. 15A-501(5)) to "call an attorney", but would have only 30 minutes to "select a witness". If we use either of the first two possible interpretations, a conflict would exist between G.S. 15A-501(5) and G.S. 20-16.2(a)(4). G.S. 15A-501(5) gives the defendant a "reasonable time" "to communicate with counsel". G.S. 20-16.2(a)(4), under either of the first two interpretations gives the accused only 30 minutes to communicate regardless of the circumstances. However, if we adopt the third interpretation of G.S. 20-16.2(a)(4) (i. e., that "this purpose" refers only to the right to "select a witness"), there is no conflict between G.S. 20-16.2(a)(4) and G.S. 15A-501(5).

We believe that these problems can be easily resolved through the application of two rules of statutory construction. (1) When a statute imposes a penalty, it must be strictly construed. Jones v. Georgia-Pacific Corp., 15 N.C.App. 515, 190 S.E.2d 422 (1972). (2) "(S)tatutes in pari materia, and all parts thereof, should be construed together", and harmonized if possible, and if there be irreconcilable ambiguity, it should be so resolved as to effectuate the intent of the legislature. Com'r of Insurance v. Automobile Rate Office, 287 N.C. 192, 202, 214 S.E.2d 98, 104 (1975). G.S. 20-16.2 clearly imposes a penalty. Because it does so, we must strictly construe the statute. Thus, we interpret the 30-minute time limitation to refer only to the right to "select a witness", leaving G.S. 15A-501(5) to control the time limitation on the right to "call an attorney" (i. e., a reasonable time). The interpretation compelled by the rules of statutory construction, and the interpretation we now adopt, is that G.S. 15A-501(5) and G.S. 20-16.2(a)(4) give an accused a reasonable time to call an attorney and communicate with him but that G.S. 20-16.2(a)(4) gives an accused only 30 minutes to select a witness and secure his attendance at the breathalyzer test. See State v. Lloyd, 33 N.C.App. 370, 235 S.E.2d 281 (1977).

We believe that this interpretation of the statutes is supported by common sense and sound policy. Whether the procedure is deemed civil or criminal, most, if not all, persons in the petitioner's situation will desire to speak with their attorney. Indeed, G.S. 20-16.2(a)(4) acknowledges this desire and confers the right to do so. Generally, both the need and the right will be satisfied by a telephone call. G.S. 15A-501(5) speaks in terms of a "right to communicate". Usually, in deciding whether to submit to a breathalyzer test, that right to communicate will be fully accorded to the accused by allowing him to call an attorney on the telephone. Because telephonic communication will generally require only a few minutes, there is no great need for a time limitation. On the other hand, there is a genuine need for a time limit in selecting a witness because a lengthy delay will render the test ineffective. Under all ordinary circumstances, the accused can telephone his attorney and fully communicate with him in a matter of minutes. However, it might frequently take a longer time for the witness, whether it be the lawyer, a doctor, or a friend, to...

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6 cases
  • Brosan v. Cochran
    • United States
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    ...approval Prideaux v. State, Dept. of Public Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976); Price v. N.C. Dept. of Motor Vehicles, 36 N.C.App. 698, 703, 245 S.E.2d 518, 521 (1978). Other states which have enacted statutes providing drunk driving suspects with a right to communicate ......
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    ...Safety, 310 Minn. 405, 247 N.W.2d 385 (1976); Gooch v. Spradling, 523 S.W.2d 861 (Mo.Ct.App.1975); Price v. North Carolina Dept. of Motor Vehicles, 36 N.C.App. 698, 245 S.E.2d 518 (1978). Such a holding would ensure the integrity of administrative and judicial proceedings as well as deter t......
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