Smith v. Powell

• Court: North Carolina Supreme Court
• Writing for the Court: LAKE
• Citation: Smith v. Powell, 293 N.C. 342, 238 S.E.2d 137 (N.C. 1977)
• Decision Date: 11 October 1977
• Docket Number: No. 5,5
• Parties: James W. SMITH v. Edward L. POWELL, Commissioner of Motor Vehicles of North Carolina.

Page 137

238 S.E.2d 137

293 N.C. 342

James W. SMITH v. Edward L. POWELL, Commissioner of Motor Vehicles of North Carolina.

No. 5.

Supreme Court of North Carolina.

Oct. 11, 1977.

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

Cherry & Wall by James J. Wall, Wilmington, for appellant.

LAKE, Justice.

G.S. 20-16.2 provides:

"(a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor.

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"(c) * * * (U)pon the receipt of a sworn report of the arresting officer and the person authorized to administer a chemical test that the person arrested, after being advised of his rights as set forth in subsection (a), willfully refused to submit to the test upon the request of the officer, the Department shall revoke the driving privilege of the person arrested for a period of six months.

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"(h) As used in this section, the term 'public vehicular area' shall mean and include any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the institutions maintained and supported by the State of North Carolina, or any of its subdivisions, or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business or municipal establishment providing parking space for customers, patrons, or the public." (Emphasis added.)

The petitioner's driver's license was not suspended by the Division of Motor Vehicles upon the theory that his presence under the bridge, in the condition described by the arresting officer, constituted reasonable ground for the officer to believe that the petitioner, prior to reaching the area under the bridge, had driven his vehicle upon a highway in that condition. The theory upon which the Division acted was that driving a motor vehicle entirely within the limits of the area beneath the bridge, while in such condition, justified the arresting officer in requesting the petitioner to take a breathalyzer test and the wilful refusal of the petitioner to take such test required the Division to revoke his driver's license.

We are not here concerned with the authority of the Legislature to make it a criminal offense for any person, while under the influence of intoxicating liquor, to drive a motor vehicle within the limits of such an area, or at other places than upon a highway or a public vehicular area, and to authorize the Division of Motor Vehicles to suspend such person's driver's license upon his wilful refusal to take a breathalyzer test. Upon that question, see: Flanders v. State, 97 Ga.App. 779, 104 S.E.2d 538 (1958); State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948); People v. Taylor, 202 Misc. 265, 111 N.Y.S.2d 703 (1952).

The above quoted statute authorizes the suspension of a person's driver's license for refusal to take a breathalyzer test only if such person was requested to take the test by an officer who arrested him or her with reasonable grounds to believe he or she, while under the influence of intoxicating liquor, drove or operated a motor vehicle on a highway or a public vehicular area. Thus, the issue for determination upon this appeal is whether one who drives a motor vehicle only within the limits of the area beneath a highway bridge is driving "on a highway or public vehicular area" as those terms are used in this statute.

Obviously, the above quoted definition of "public vehicular area" set forth in Paragraph (h) of G.S. 20-16.2 does not include the area under this bridge, for the area in question is not "upon the grounds and premises" of an institution or establishment of a type specified in that definition. Thus, the question for decision narrows to: When a person drives a motor vehicle only upon the ground beneath a highway bridge, is he driving "on a highway?" We hold he is not.

G.S. 20-4.01 provides:

"Unless the context otherwise requires, the following words and phrases, for the purposes of this Chapter, shall have the following meanings: (Emphasis added.)

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"(13) Highway or Street. The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic. * * * "

While the record shows people, with some frequency, drive motor vehicles beneath the bridge here in question, nothing in the record indicates that they have a right to drive upon any part of this area.

It is elementary that when a statute contains a definition of a word or term used therein, such definition, unless the context clearly requires otherwise, is to be read into the statute wherever such word or term appears therein. See: Yacht Co. v. High, 265 N.C. 653, 144 S.E.2d 821 (1965); Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246 (1956); 73 Am.Jur.2d Statutes, § 225. Thus, the determination of the issue presented by this appeal requires the construction of this definition of "highway."

The term "highway" and the synonymous term "street" appear many times, and in varying types of provisions, in Chapter 20 of the General Statutes, the Motor Vehicle Law. Clearly, the Legislature has provided that, unless the context requires otherwise, the word "highway" is to be given the same connotation in all of these provisions, whether they be penal, remedial, or otherwise. Thus, the well known principles of statutory construction that a penal statute is to be strictly construed (State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968)) and a statute designed to promote safety is to be liberally construed (State v. Lipkin, 169 N.C. 265, 84 S.E. 340 (1915)) have no...