Thurman v. Commissioner, North Carolina Division of Motor Vehicles, No. COA07-668 (N.C. App. 5/20/2008)
| Decision Date | 20 May 2008 |
| Docket Number | No. COA07-668,COA07-668 |
| Court | North Carolina Court of Appeals |
| Parties | PERRY JOE THURMAN, Petitioner, v. COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent. |
Law Offices of Carl W. Thurman, III, by Carl W. Thurman, III, for petitioner-appellant.
Roy Cooper, Attorney General, by Kathryne E. Hathcock, Assistant Attorney General, for respondent-appellee.
Petitioner Perry Joe Thurman appeals from a final judgment denying his request for injunctive relief and affirming the decision of the Commissioner of the North Carolina Division of Motor Vehicles ("respondent") to revoke petitioner's driver's license for a period of twelve months based on a violation of N.C.G.S. § 20-16.2. We affirm.
On the evening of 21 June 2004, Trooper C.L. Pridgen of the North Carolina State Highway Patrol was on routine patrol in Scotland County, North Carolina. At approximately 11:00 p.m., Trooper Pridgen was dispatched to the scene of a single vehicle accident on Sneeds Grove Road in Scotland County. After arriving at the scene, Trooper Pridgen observed a green Toyota Camry "sitting on all [four] tires" in a plowed field" off the right side of the roadway." Trooper Pridgen approached the vehicle and saw two men with "dirt all over" them who "obviously appeared" to have been involved in the accident.
The trooper first spoke with the older of the two men, petitioner's father Woody Thurman, who "explained [to Trooper Pridgen] that his son did a pretty good job of maintaining control of the vehicle" but said that petitioner "came around the curve a little too fast and lost control" and "then the vehicle turned upside down." Trooper Pridgen then approached petitioner, who was "leaning on the front portion" of the vehicle and swaying back and forth. The trooper observed that petitioner's "eyes were red and glassy" and noticed a strong odor of alcohol on petitioner's breath. Trooper Pridgen asked petitioner about what happened but petitioner "wouldn't say a word." Because of the uneven terrain of the plowed field at the location of the accident, as well as petitioner's apparent injuries, the trooper did not ask petitioner to submit to a field sobriety test at the scene. Petitioner was then transported to the local hospital to receive treatment for his injuries.
At the hospital, Trooper Pridgen arrested petitioner for driving while impaired based on his observations of petitioner at the scene and based on petitioner's father's statements to the trooper at the scene. At about 12:40 a.m. on 22 June 2004, the trooper asked petitioner to submit to a chemical analysis of his blood and informed petitioner of his rights in accordance with N.C.G.S. § 20-16.2(a). Petitioner refused to sign the form enumerating those rights presented to him by Trooper Pridgen and "said he wasn't gonna take" the chemical analysis test. Then, "to make sure that [petitioner] had honestly refused to take the test," at 1:15 a.m., the trooper again asked petitioner if he would submit to the chemical analysis test. Petitioner again refused the trooper's request.
On 19 August 2004, the Scotland County prosecutor signed a Dismissal Notice of Reinstatement form dismissing the criminal charge of DWI against petitioner under file number 04 CR 2659 since "[t]here [wa]s insufficient evidence to warrant prosecution" because "[the] State [could not] prove which occupant was [the] driver." On 17 December 2004, the same prosecutor dated and initialed a handwritten note on the same dismissal form which stated: "Addendum—cannot establish probable cause."
Respondent gave petitioner notice of the suspension of petitioner's driver's license based on a violation of N.C.G.S. § 20-16.2. Petitioner appealed the suspension, which was upheld at an administrative hearing, and respondent again gave notice that petitioner's driver's license would be suspended effective 17 October 2004. On 16 November 2004, petitioner filed a Complaint and Petition in Scotland County Superior Court seeking (1) "a temporary restraining order and/or [a] preliminary injunction enjoining [d]efendant from suspending [petitioner's] license until a hearing on the merits" and (2) a declaratory judgment that N.C.G.S. § 20-16.2 could not be applied to petitioner. On 7 January 2005, respondent filed a Response and petitioner filed a Motion for Temporary Restraining Order and Preliminary Injunction. On that same day, the Scotland County Superior Court granted petitioner's motion and enjoined respondent from suspending petitioner's driver's license until after a hearing on the merits. The matter was heard at a bench trial on 28 August 2006 in Scotland County Superior Court. On 22 November 2006, the trial court entered its judgment dissolving the restraining order entered on 7 January 2005 and affirming respondent's revocation of petitioner's driver's license. Petitioner gave notice of appeal to this Court on 22 December 2006.
Petitioner first contends the trial court erred because it did not find that petitioner was actually driving the vehicle and so argues that N.C.G.S. § 20-16.2 cannot apply to him. We disagree.
At the time of the offense and trial in the present case, the version of N.C.G.S. § 20-16.2 in effect and applied herein read as follows:
Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. The charging officer shall designate the type of chemical analysis to be administered, and it may be administered when the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense.
N.C. Gen. Stat. § 20-16.2(a) (2005) (amended 2006) (emphasis added). Thus, "administration of the [chemical analysis] test hinges solely upon the law enforcement officer having reasonable grounds to believe the person to have been operating a motor vehicle on the highway while under the influence of intoxicating liquor." In re Pinyatello, 36 N.C. App. 542, 545, 245 S.E.2d 185, 187 (1978) (emphasis added).
If a person's driver's license is subsequently revoked for willfully refusing to submit to a chemical analysis pursuant to N.C.G.S. § 20-16.2, that person may then request a hearing before the Division of Motor Vehicles to contest the suspension and, if necessary, may later appeal from a sustained revocation to superior court for a hearing de novo. See N.C. Gen. Stat. § 20-16.2(c)—(e). However, both of these proceedings are limited to a consideration of only the following issues:
(1) [whether t]he 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) [whether t]he 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) [whether t]he implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4) [whether t]he person was notified of the person's rights as required by subsection (a); and
(5) [whether t]he person willfully refused to submit to a chemical analysis upon the request of the charging officer.
N.C. Gen. Stat. § 20-16.2(d) (emphasis added). In other words, in a proceeding to review a license revocation for willfully refusing to submit to a chemical analysis, the reviewing entity may not determine the issue of whether the person subject to the revocation was actually driving a vehicle on a highway or public vehicular area; instead, the statute permits only a determination of whether the charging officerhad reasonable grounds to believe that the person was driving and committed an implied-consent offense. See N.C. Gen. Stat. § 20-16.2(a).
Petitioner attempts to support his contention with Smith v. Powell, 293 N.C. 342, 238 S.E.2d 137 (1977), arguing that "the holding [in Smith] clearly establishes that a driver must in actuality be driving on a highway or public vehicular area, not merely that probable cause existed to believe he was." However, contrary to petitioner's assertion, the Smith Court did not hold that a court reviewing a license revocation must conclude that a driver was "in actuality . . . driving on a highway" in lieu of, or in addition to, the "reasonable grounds to believe" requirement of N.C.G.S. § 20-16.2(a). Instead, "the [sole] question for decision [before the Court in Smith] narrow[ed] to: When a person drives a motor vehicle only upon the ground beneath a highway bridge, is he driving 'on a highway'" as the term is used in N.C.G.S. § 20-16.2(a)? Smith, 293 N.C. at 345, 238 S.E.2d at 140 (emphasis added). The Court answered, "he is not," and then engaged in a thorough analysis of how the term "highway" should be construed based on its use in the statute. Id.
Moreover, the Rules of Appellate Procedure provide that "[f]ailure to . . . [assign error to a conclusion of law] constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts." Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). Here, petitioner did not assign error to the court's Conclusion of Law 1 that "[p]etitioner was arrested for an implied consent offense based upon reasonable grounds." (Emphasis added.) Thus, petitioner waived his right to challenge this conclusion. Instead, petitioner asserts that he should not be subject to a license revocation under N.C.G.S. § 20-16.2 because the court did not also conclude that petitioner was actually driving the vehicle. Nevertheless, as indicated above, in a review of a...
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