Seders v. Powell, 20

CourtUnited States State Supreme Court of North Carolina
Citation298 N.C. 453,259 S.E.2d 544
Decision Date06 November 1979
Docket NumberNo. 20,20
PartiesDonald A. SEDERS v. Edward L. POWELL, Commissioner of Division of Motor Vehicles.

Page 544

259 S.E.2d 544
298 N.C. 453
Donald A. SEDERS
Edward L. POWELL, Commissioner of Division of Motor Vehicles.
No. 20.
Supreme Court of North Carolina.
Nov. 6, 1979.

Smith, Patterson, Follin, Curtis, James & Harkavy by Charles A. Lloyd, Greensboro, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for defendant-appellee.

[298 N.C. 457] CARLTON, Justice.

We are presented by plaintiff with three arguments on this appeal: (1) That the lower courts misconstrued G.S. 20-16.2(a)(4) to impose an absolute 30 minute time limit in which one charged with driving under the influence has an opportunity to consult with a lawyer, (2) That the evidence in the instant case does not support the trial court's finding that plaintiff willfully refused to submit to the breathalyzer test, and (3) That there is a constitutional right to confer with counsel prior to taking the breathalyzer test and the 30 minute time limit is both irrational and a violation of due process. We reject the plaintiff's contentions and affirm.


Plaintiff first contends that the Court of Appeals incorrectly resolved the conflict between G.S. 20-16.2(a)(4) and G.S. 15A-501(5) and thereby created a conflict with a prior decision of another panel of the Court of Appeals in Price v. N.C. Dept. of Motor Vehicles, supra.

G.S. 20-16.2(a)(4) provides in pertinent part:

(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 added.)

G.S. 15A-501, however, provides in pertinent part:

Page 548

Upon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law enforcement officer:

(5) Must without unnecessary delay advise the person arrested of his right to communicate with counsel and friends and must allow him Reasonable time and reasonable opportunity to do so. (Emphasis added.)

In Price, the Court of Appeals held that the 30 minute time limitation mandated by G.S. 20-16.2(a)(4) refers only to the right to [298 N.C. 458] "select a witness." It interpreted G.S. 15A-501(5), which gives a criminal defendant a right to consult with counsel within a reasonable time after arrest, as applying to breathalyzer tests. Thus, the right to contact an attorney before taking the test was not limited to 30 minutes but rather was limited to a "reasonable time." Only the right to select a witness was subject to the 30 minute ban.

The State argues here that the reasonable time language in Price is mere dictum. We disagree. Speaking through Judge Hedrick, the Court of Appeals in the instant case expressly disavowed the Price analysis. The two decisions are obviously in conflict.

In 1973 our legislature amended G.S. 20-16.2 in several respects and the phrase "for this purpose" was inserted in place of the phrase "for other purposes." 1973 N.C.Sess.Laws 181-82 (Chap. 206, s. 1). Echoing an argument advanced in Price, plaintiff here asserts that the phrase "for this purpose" is singular and that the change enacted by the General Assembly expressed its obvious intent to apply the 30 minute time limit only to defendant's right to secure a witness to view the testing procedure. On the basis of that construction, plaintiff argues, he would then have a "reasonable time" not limited to 30 minutes within which to call an attorney pursuant to G.S. 15A-501(5).

We cannot agree for several reasons. First, the 1973 amendment which inserted "for this purpose" in the place of "for these purposes" did so at the same time that it enumerated three other rights accruing to a driver faced with the prospect of a breathalyzer test. We believe the limiting words were inserted to apply to the single generic right enumerated in (a)(4), the right to have advice and support during the testing process, as opposed to the other rights enumerated in the preceding subsections, G.S. 20-16.2(a)(1) through (a)(3). This view is bolstered by the very wording of G.S. 20-16.2(a)(4):

That he has the right to call an attorney and select a witness to view for him the testing procedure; but that the test shall not be delayed for This purpose (That is, the purpose of exercising the generic right embodied in this particular subsection ) for a period in excess of 30 minutes from the time he is notified of his Rights (That is, the other rights enumerated in [298 N.C. 459] G.S. 20-16.2(a) which include the right to refuse, and the right to have an independent test done of alcohol content of the blood ). (Emphasis added.)

Furthermore, a grammarian's reading of the limiting phrase within its statutory context reveals that that to which plaintiff pins his hopes is not an ambiguity of phrasing but a proper grammatical expression of number. The singular noun phrase "this purpose" refers to the singular antecedent noun phrase "the Right to call an attorney and select a witness . . .." Grammatically and logically, then, the phrase "this purpose" refers to one right with two components the right to call and to select. The 30 minute time limit applies to both components of that one right.

In resolving the potential conflict between these two statutes, we have, of course, employed the established rule that the legislative will is the controlling factor. Ross Realty Co. v. First Citizens Bank & Trust Co., 296 N.C. 366, 250 S.E.2d 271 (1979); In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978); State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975). We do not think the legislature intended the breathalyzer statute to be either ungrammatical or illogical.

Page 549

Furthermore, we do not think the legislature intended for the "reasonable time" contemplated by G.S. 15A-501(5), a part of the Criminal Procedure Act, to apply to the specialized situation contemplated by G.S. 20-16.2, a civil matter involving the administrative removal of driving privileges as a result of refusing to submit to a breathalyzer test. When two statutes apparently overlap, it is well established that the statute special and particular shall control over the statute general in nature, even if the general statute is more recent, unless it clearly appears that the legislature intended the general statute to control. Colonial Pipeline Co. v. Neill, 296 N.C. 503, 251 S.E.2d 457 (1979); National Food Stores v. N.C. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966).

We finally note that it would be incongruous to hold that G.S. 20-16.2(a)(4) requires an accused to select a witness to view for him the testing procedure within 30 minutes but allows a greater period for the purpose of calling an attorney. Surely, in virtually every situation, it would be easier for an accused to contact an attorney by telephone within 30 minutes than to contact anyone [298 N.C. 460] else and have them travel to the breathalyzer room to observe the test within that same time period. Our legislature has wisely recognized the genuine need for a time limit for both purposes and we hold that the 30 minute time limit referred to by G.S. 20-16.2(4) applies both to the purpose of calling an attorney and to the purpose of selecting a witness to view the testing procedure. Any language to the contrary in Price v. Department of...

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