Steinkrause v. Tatum

Decision Date08 December 2009
Docket NumberNo. COA08-1080.,COA08-1080.
PartiesKaren STEINKRAUSE, Petitioner, v. George TATUM, Commissioner, North Carolina Division of Motor Vehicles, Respondent.
CourtNorth Carolina Court of Appeals

George B. Currin, Raleigh, for petitioner-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for respondent-appellee.

WYNN, Judge.

Petitioner Karen Steinkrause1 was arrested for driving while impaired (DWI) on 23 September 2006 based on evidence surrounding a severe one-car accident, including an officer's observation that she smelled of alcohol. Petitioner blew several times into the Intoxilyzer machine, but did not provide a sufficient breath sample; she claimed that injuries sustained during the accident made it too painful. We now affirm the trial court's determination that probable cause existed for Petitioner's arrest, and that Petitioner willfully refused to submit to a chemical analysis.

On 23 September 2006, Captain K.J. McCray of the North Carolina Highway Patrol was called to the scene of an accident off 1-40 in Wake County. Arriving at the scene of the accident, he met with Trooper Kenneth Ellerbe of the North Carolina Highway Patrol who had responded first. The officers found Petitioner Steinkrause's car upside down in a ditch next to an exit ramp, where it had come to rest after having rolled several times. Trooper Ellerbe requested that she submit to a portable breath test (PBT). Petitioner successfully provided one breath sample, and Trooper Ellerbe requested that she submit to another. Petitioner was unable to provide a second sample, claiming that injuries sustained during the accident made it too painful for her to blow into the device.

Petitioner provided a written statement for Trooper Ellerbe, that states in its entirety:

My left front tire looked flat. Couldn't find gas station with air upon leaving Raleigh. Was going to stop again to check air pressure. Having an argument on phone. Car swerved. Felt I could not regain control. Swerved onto inside lane and median, and car flipped. Zero loss of consciousness. Apparently superficial lacerations to left elbow area.

Captain McCray eventually took over the investigation. Trooper Ellerbe informed Captain McCray that he had smelled an odor of alcohol about Petitioner's person. Trooper Ellerbe also told Captain McCray the results of the first PBT, and that no result was obtained upon his second request. Captain McCray did not himself smell alcohol on Petitioner, but he noticed her clothes were dirty and she looked "sleepy." Based on "the collision, the damage of the vehicle and the testimony of the trooper that was there prior to [his] arrival," Captain McCray believed Petitioner had committed an implied consent offense and placed her under arrest for DWI. After her arrest, Petitioner admitted that she had been drinking prior to the accident.

Petitioner was taken to the City County Bureau of Identification, where she was requested to submit to a chemical analysis of her breath. Captain McCray, a certified chemical analyst, advised Petitioner of her rights, and Petitioner agreed to take the Intoxilyzer test. Captain McCray told Petitioner to blow steadily into the mouthpiece.

According to Captain McCray's testimony, Petitioner attempted to blow four times. Petitioner would blow a little bit, say that it hurt her neck, and then stop. Captain McCray testified that he believed Petitioner was physically able to provide a sample of her breath. He also testified that he did not observe anything that made him believe Petitioner was not making a valid attempt. Captain McCray registered Petitioner as a willful refusal at 6:17 p.m.

Petitioner was notified by the Division of Motor Vehicles ("DMV") that her driver's license was suspended for refusal to submit to a chemical analysis pursuant in N.C. Gen. Stat. § 20-16.2. Petitioner contested the revocation and requested a hearing. Petitioner was granted a hearing before the DMV on 8 December 2006. The DMV sustained the revocation of Petitioner's driver's license. Petitioner requested judicial review of the DMV's decision on 13 December 2006. The hearing was conducted during the 4 March 2008 Civil Session of the Superior Court in Wake County. The court affirmed the revocation of Petitioner's driver's license, entering judgment on 27 March 2008. This appeal followed.

On appeal to this Court, the trial court's Findings of Fact are conclusive if supported by competent evidence, even though there may be evidence to the contrary. Gibson v. Faulkner, 132 N.C.App. 728, 732-33, 515 S.E.2d 452, 455 (1999). We review whether the trial court's Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724 (2008).

Petitioner argues on appeal that the trial court erred by (I) concluding as a matter of law that she was arrested based upon reasonable grounds, and (II) making Findings of Fact and concluding that she willfully refused to submit to a test of her breath.


Petitioner first contends that the trial court erred in concluding as a matter of law that she was arrested based upon reasonable grounds. Because the totality of the circumstances supports a finding of probable cause, we disagree.

This appeal arises from a revocation proceeding under N.C. Gen.Stat. § 20-16.2 which authorizes a civil revocation of the driver's license when a driver has willfully refused to submit to a chemical analysis. That statute provides for a civil hearing at which the driver can contest the revocation of her driver's license. The hearing is limited to consideration of whether:

(1) The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;

(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;

(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 the person's 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) (2005).

A civil revocation hearing is not a criminal prosecution. This court has recognized that "[t]he administrative hearing referred to in N.C. Gen.Stat. § 20-16.2(d) ... is in the nature of a civil proceeding." Gibson, 132 N.C.App. at 734, 515 S.E.2d at 455. Elsewhere, we have determined that "the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical." Brower v. Killens, 122 N.C.App. 685, 690, 472 S.E.2d 33, 37 (1996), disc. review improvidently allowed, 345 N.C. 625, 481 S.E.2d 86 (1997). Thus, reasonable grounds in a civil revocation hearing means probable cause, and is to be determined based on the same criteria. See Rock v. Hiatt, 103 N.C.App. 578, 584, 406 S.E.2d 638, 642 (1991).

A determination of probable cause depends on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769, 773 (2003). "To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Id. at 371, 124 S.Ct. at 797, 157 L.Ed.2d at 775 (quoting Ornelas v. U.S., 517 U.S. 690, 696, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911, 919 (1996)). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527, 552 n. 13 (1983).

Petitioner does not contest that there was sufficient evidence to support part of the trial court's Finding of Fact No. 3: that Petitioner was involved in a severe one car accident. Nor does Petitioner contest the sufficiency of the evidence regarding Finding of Fact No. 6: that Trooper Ellerbe conveyed to Trooper McCray that Petitioner had an odor of alcohol on or about her person. Petitioner argues, however, that these findings do not support the trial court's conclusion that Captain McCray had reasonable grounds to arrest Petitioner.

Regarding the smell of alcohol, an arresting officer is permitted to base his determination of reasonable grounds on information given by one known to him to be reasonably reliable. Melton v. Hodges, 114 N.C.App. 795, 798, 443 S.E.2d 83, 85 (1994).

In this case, an officer on the scene smelled an odor of alcohol about the Petitioner. That the arresting officer did not himself make the same observation does not diminish its weight, since a probable cause determination may be based upon the hearsay of a reliable witness. Id.; see also State v. Leonard, 87 N.C.App. 448, 454, 361 S.E.2d 397, 400 (1987) ("The direct personal observation by the officer/affiant or his fellow officers is plainly a reliable basis for issuance of a warrant."), appeal dismissed and disc. review denied, 321 N.C. 746, 366 S.E.2d 867 (1988). The smell of alcohol could therefore contribute to the officer's determination of probable cause, and supports the trial court's determination that Petitioner was arrested based upon reasonable grounds.

The second factor supporting a determination of probable cause is the nature of the car accident itself. Petitioner is correct to assert that the car accident alone does not support a...

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