Rogers, In re

• Decision Date: 05 July 1989
• Docket Number: No. 885SC1416,885SC1416
• Court: North Carolina Court of Appeals
• Parties: In re Suspension of the License to Operate a Motor Vehicle of Rhonda Ricker ROGERS, NCDL # : 7677137.

Page 599

380 S.E.2d 599

94 N.C.App. 505

In re Suspension of the License to Operate a Motor Vehicle

of Rhonda Ricker ROGERS, NCDL # : 7677137.

No. 885SC1416.

Court of Appeals of North Carolina.

July 5, 1989.

Hewlett, Collins & Mahn by John C. Collins, Wilmington, for petitioner-appellee.

Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. William B. Ray, Raleigh, for respondent-appellant.

SARAH ELIZABETH PARKER, Judge.

Following her arrest for driving while impaired, petitioner was notified by the Division of Motor Vehicles that her license to drive was revoked for twelve months pursuant to G.S. 20-16.2 for her refusal to take a breathalyzer test. Petitioner obtained a hearing before the Division under G.S. 20-16.2(d) and the Division sustained the revocation. Petitioner then appealed to the Superior Court pursuant to G.S. 20-16.2(e) and G.S. 20-25. The Superior Court found that the test which petitioner allegedly refused to take was not administered in compliance with G.S. 20-16.2(a) and regulations promulgated by the Department of Human Resources. The trial court's order enjoined respondent Commissioner of Motor Vehicles from revoking petitioner's license.

Respondent contends that the trial court erred in enjoining him from revoking petitioner's license on the grounds that proper procedures were not followed in administering the breathalyzer test. We agree and reverse the trial court's order in this case.

By statute, a hearing before the Division of Motor Vehicles to determine whether a revocation for failure to submit to chemical analysis will be sustained must be limited to consideration of whether:

(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.

G.S. 20-16.2(d). Although the Division's determination is subject to de novo review by the Superior Court, the hearing in Superior Court is limited to the same five issues. G.S. 20-16.2(e). If all five conditions are met, the revocation must be sustained. G.S. 20-16.2(d).

In the present case, petitioner has stipulated to conditions (1) and (2). She has also stipulated that the charging officer requested her to take a breathalyzer test and that there was present at that time a qualified breathalyzer operator who held a valid permit as required by G.S. 20-139.1. Condition (3) is not relevant in this case. Therefore, the only issues to be determined by the trial court related to conditions (4) and (5). The issues were (i) whether petitioner was notified of her rights as required by G.S. 20-16.2(a) and (ii) whether petitioner willfully refused to take the test.

General Statute 20-16.2(a) provides that a person charged with an implied-consent offense must be given oral and written notification of his rights with regard to chemical analysis and the consequences of taking or refusing to take a test. The evidence in this case tends to show that petitioner received notification of her rights at 11:10 P.M. Under G.S. 20-16.2(a)(6), petitioner had the right to select a witness to view the testing procedures so long as the test would not be delayed for more than thirty minutes from the time she was notified of her rights. Petitioner exercised this right and her witness arrived at 11:30 P.M. Following the witness's arrival, the breathalyzer operator attempted to conduct the test.

Although the actual testing of petitioner occurred in the presence of the witness, it is undisputed that the breathalyzer operator performed a "simulator test" for the purpose of calibrating the apparatus prior to the witness's arrival. The simulator test is part of the Department of Human Resource's required procedure to be followed when testing with the apparatus used in this case. 10 N.C.Admin.Code 7B.0336. Compliance with the Department's procedures is required by statute. G.S. 20-139.1. Under G.S. 20-16.2(a)(6), a person has the right to select a witness to view the "testing procedures." In this case, the trial court found that this statutory provision required the breathalyzer operator to perform the simulator test in the witness's presence and the failure to do so precluded respondent from revoking petitioner's license for her refusal to take the test.

Under the facts of this case, we find it unnecessary, however, to decide whether the trial court correctly ruled that petitioner had the right to have her witness view the simulator test as well as the actual test. Petitioner's license was revoked based upon her willful refusal to take the test. In reviewing this revocation, the trial court could properly consider only those issues specified in G.S. 20-16.2(d) and, in this case, the only unresolved issues are whether petitioner was properly notified of her rights and whether she willfully refused to take the test. The evidence clearly establishes that petitioner received proper notification of her rights and the trial court made a finding of fact to that effect. Therefore, petitioner's license is subject to revocation unless she did not willfully refuse to take the test.

The trial court's order contains no findings or conclusions regarding the willful refusal issue. The evidence tends to show that the operator could not perform the test because, despite the operator's repeated requests, petitioner refused to expel sufficient air into the apparatus to provide an adequate breath sample. This evidence could support a finding that petitioner willfully refused to take the test. See Bell v. Powell, Comr. of Motor Vehicles, 41 N.C.App. 131, 254 S.E.2d 191 (1979). The trial court did not reach this question, however, because it ruled that the failure to perform the simulator test in the witness's presence precluded revocation.

Although the trial court did not phrase its order in terms of willful refusal, the clear meaning of the order is that no willful refusal could occur because the operator did not perform the test in compliance with the requirements of G.S. 20-16.2(a). General Statute 20-16.2(d) requires only notification of the rights specified in subsection (a); a violation of those rights is not listed as a reviewable issue in a hearing to determine the validity of a revocation for willful refusal to submit to chemical analysis. Accordingly, we find that the trial court erred in enjoining the revocation of petitioner's license on that basis.

Obviously, notification of a right is of little value if there is no remedy for the denial of the right. In the present case, however, any violation of petitioner's rights was unrelated to her alleged decision to refuse the test. Under G.S. 20-16.2, a willful refusal 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...