Rock v. Hiatt, No. 903SC551

• Docket Nº: No. 903SC551
• Citation: 103 N.C.App. 578, 406 S.E.2d 638
• Case Date: August 06, 1991
• Court: Court of Appeal of North Carolina (US)

Page 638

406 S.E.2d 638 103 N.C.App. 578 David Andrew ROCK, III, Petitioner/Appellant,
v.
William S. HIATT, Commissioner, North Carolina Division of
Motor Vehicles, Respondent/Appellee. No. 903SC551. Court of Appeals of North Carolina. Aug. 6, 1991.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Mabel Y. Bullock, Raleigh, for respondent-appellee State.

Jeffrey L. Miller, Greenville, for petitioner-appellant.

ORR, Judge.

We note at the outset that petitioner voluntarily abandoned assignment of error three concerning the trial court's signing of the judgment on 22 February 1990 and filing the same on 28 February 1990 prior to considering petitioner's objections to the proposed judgment. We shall now address the remaining assignments of error.

I.

Petitioner's assignments of error focus upon two elements of N.C.Gen.Stat. § 20-16.2. Petitioner first argues that the trial court erred in determining that petitioner had "willfully refused" to submit to a chemical analysis on the grounds that he did not receive the statutory 30-minute waiting period to contact an attorney, that he was denied access to any method of personally communicating with counsel and that he, in fact, asserted his statutory right before the expiration of the 30-minute period and consented to the chemical analysis test. For the following reasons, we hold that the trial court erred in its order of 28 February 1990, in concluding that petitioner wilfully refused to submit to a chemical analysis and test to determine his blood alcohol level. [103 N.C.App. 580] We therefore reverse and remand for additional action consistent with this opinion.

Under N.C.Gen.Stat. § 20-16.2, upon revocation of a petitioner's driving privileges and an appeal de novo to the Superior Court, the trial court's review is limited to a determination of whether:

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(1) The person was charged with an implied-consent offense;

(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense;

(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;

(4) The person was notified of his rights as required by subsection (a); and

(5) The person willfully refused to submit to a chemical analysis upon the request of the charging officer.

N.C.Gen.Stat. §§ 20-16.2(d) and (e) (1989).

Under the statute, the respondent has the burden of proof to show that petitioner "willfully refused to submit to a chemical analysis." Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 236, 182 S.E.2d 553, 560, reh'g denied, 279 N.C. 397, 183 S.E.2d 241 (1971).

Under § 20-16.2(a)(6), a person charged with an implied consent offense (such as driving under the influence of intoxicating liquors) "has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights." N.C.Gen.Stat. § 20-16.2(a)(6) (1989).

In Seders v. Powell, Comr. of Motor Vehicles, 298 N.C. 453, 259 S.E.2d 544 (1979), our Supreme Court stated that § 20-16.2(a)(4) (now § 20-16.2(a)(6)) gives a petitioner "the right to have advice and support during the testing process,...." Id. at 458, 259 S.E.2d at 548. The Court further stated that "[t]he 30 minute time limit applies to both components of that one right [to call an attorney and select a witness]." Id. at 459, 259 S.E.2d at 548.

The Seders Court also held that although a petitioner has a statutory right to a 30-minute time limit to contact an attorney, [103 N.C.App. 581] he does not have a constitutional right to confer with an attorney before deciding to submit to a breathalyzer test. Id. at 461, 259 S.E.2d at 550 (citations omitted). This is based on two grounds: (1) these revocation or suspension proceedings are civil, not criminal in nature; and (2) when a person "accepts the privilege of driving upon our highways [he consents] to the use of the breathalyzer test and has no constitutional right to consult a lawyer to void that consent." Id. at 462, 259 S.E.2d at 550 (citations omitted).

In 1980, our Supreme Court established a four-part test to determine what constitutes a "willful refusal" under the above statutory scheme. Etheridge v. Peters, Comr. of Motor Vehicles, 301 N.C. 76, 269 S.E.2d 133 (1980). Justice Exum (now Chief Justice), writing for the Court, stated that

a willful refusal to submit to a chemical test within the meaning of [the statute] occurs where a motorist: (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 thirty-minute time limit to expire before he elects to take the test.

Id. at 81, 269 S.E.2d at 136.

This Court has applied the Etheridge test in at least two cases. In Mathis v. Division of Motor Vehicles, 71 N.C.App. 413, 415, 322 S.E.2d 436, 437-38 (1984), citing Etheridge, this Court stated that willful refusal occurs when a petitioner is aware that he must make a choice of whether or not to take the test, aware of the 30-minute time limit to make a decision, voluntarily decides not to take the test, and knowingly allows the time limit to expire before he elects to take the test.

In In re Vallender, 81 N.C.App. 291, 294, 344 S.E.2d 62, 64 (1986), this Court held that a petitioner has 30 minutes from the time he was advised of his rights "in which to decide...