NO. COA09-370-2
NORTH CAROLINA COURT OF APPEALS
Filed: 17 August 2010
RICHARD JAMES LEE,
Petitioner-Appellant,
v.
Wilkes County
No. 07 CVS 2486
WILLIAM C. GORE, JR., as
Commissioner of the Division
of Motor Vehicles, North
Carolina Department of
Transportation,
Respondent-Appellee.
Appeal by Petitioner from order entered 22 October 2008 by
Judge Henry E. Frye, Jr. in Superior Court, Wilkes County.
This
matter was originally heard in the Court of Appeals 27 October
2009.
An opinion was filed by this Court on 19 January 2010,
vacating
the
remanding
to
order
the
of
North
the
Wilkes
Carolina
County
Division
Superior
of
Motor
Court
and
Vehicles.
Respondent filed a Petition for Rehearing on 23 February 2010.
An
order granting the Petition for Rehearing was filed on the 19th day
of March 2010.
Richard J. Lee, J.D., LL.M., Petitioner-Appellant, pro se.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryne E. Hathcock, for Respondent-Appellee.
McGEE, Judge.
Petitioner, a resident and registered driver of the State of
Florida, was driving through Wilkes County just before midnight on
22 August 2007, when he was stopped by Officer Jason Ratliff of the
-2Wilkesboro Police Department. Officer Ratliff testified at a later
review hearing before the Division of Motor Vehicles (the Division)
that he believed probable cause existed to arrest Petitioner for
driving while impaired.
an
intake
center
to
Officer Ratliff transported Petitioner to
administer
a
chemical
analysis
(by
an
Intoxilyzer alcohol analyzer) to determine the concentration of
alcohol in Petitioner's body.
Officer Ratliff testified that
Petitioner never specifically refused to submit to the chemical
analysis.
Officer Ratliff told Petitioner several times that
failure to take the chemical analysis would result in Petitioner's
being marked as willfully refusing the chemical analysis, and would
result in the revocation of Petitioner's North Carolina driving
privileges.
However,
Petitioner
did
not
agree
to
take
the
Intoxilyzer test and Officer Ratliff marked "refused" on a form
DHHS 3908 at 12:47 a.m. on 23 August 2007.
Officer Ratliff testified he then went to a magistrate to
execute an affidavit concerning Petitioner's refusal to submit to
a
chemical
analysis.
Form
DHHS
3907,
titled
"Affidavit
and
Revocation Report," was created by the Administrative Office of the
Courts for this purpose. Form DHHS 3907 includes fourteen sections
with an empty box before each section.
The person swearing to the
accuracy of the affidavit, having been "first duly sworn," checks
the
boxes
relevant
to
the
circumstances,
and
then
signs
the
affidavit in front of an official authorized to administer oaths
and execute affidavits. Section fourteen of form DHHS 3907 states:
"The driver willfully refused to submit to a chemical analysis as
-3indicated on the attached [form] G DHHS 3908, G DHHS 4003."
3
Officer Ratliff testified that he did not check the box for section
fourteen and the affidavit he sent to the Division did not have the
box for section fourteen checked.
Revocation
Report"
sent
to
the
Therefore, the "Affidavit and
Division
did
not
state
that
Petitioner had willfully refused to submit to a chemical analysis.
Upon receipt of the form DHHS 3907 sent by Officer Ratliff,
the
Division
privileges.
revoked
Petitioner's
North
Carolina
driving
Petitioner requested a review hearing to contest the
revocation,1 and a hearing was conducted on 20 November 2007 before
Administrative Hearing Officer P.M. Snow.
At this hearing, it was
discovered that the copy of form DHHS 3907 received by the Division
had an "x" in the section fourteen box.
on
the
form
DHHS
3907
contained
All the other boxes marked
check
marks,
not
"x's."
Petitioner's copy of the form DHHS 3907 did not contain the "x" in
the box preceding section fourteen.
Hearing
Officer
Snow
decided
that
the
revocation
of
Petitioner's North Carolina driving privileges was proper, and
Petitioner appealed to Wilkes County Superior Court, which affirmed
the decision of Hearing Officer Snow.
this Court.
Petitioner then appealed to
Our Court held that the Division lacked the authority
to revoke Petitioner's North Carolina driving privileges, because
the Division never received an affidavit indicating that Petitioner
had willfully refused to submit to a chemical analysis of his blood
1
Which served to postpone the suspension of Plaintiff's driving privileges until the
outcome of the hearing had been determined. N.C.G.S. § 20-16.2(d). By order of the trial court,
the postponement of the suspension was continued pending the outcome of Plaintiff's appeal.
-4alcohol level.
We therefore vacated the order of the superior
court affirming the decision of Hearing Officer Snow, and remanded
to the Division for reinstatement of Petitioner's North Carolina
driving privileges. Lee v. Gore, __ N.C. App. __, 688 S.E.2d 734
(2010) (filed 19 January 2010).
Respondent filed a petition for
rehearing in the matter on 23 February 2010, requesting our Court
to reconsider certain issues.
By order filed 19 March 2010, we
granted Respondent's petition, limited to certain issues, and
directed Respondent and Petitioner to submit briefs addressing the
limited issues included in our order.
opinion
in
this
matter
in
light
of
We now file an amended
the
additional
presented in the parties' supplemental briefs.
arguments
This opinion
supersedes and replaces the opinion filed 19 January 2010, Lee v.
Gore, __ N.C. App. __, 688 S.E.2d 734 (2010).
Analysis – Willful Refusal
In Petitioner's second argument, he contends the trial court
erred in upholding the Division's revocation of Petitioner's North
Carolina
driving
privileges
because
the
Division
was
without
authority to revoke Petitioner's driving privileges.
N.C. Gen. Stat. § 20-1 (2006)2 states: "The Division of Motor
Vehicles of the Department of Transportation is established.
Chapter
2
sets
out
the
powers
and
duties
of
the
This
Division."
The events related to this appeal occurred before the
effective date of the current version of N.C. Gen. Stat. § 2016.2. Though we cite the version of the statute in effect on 23
August 2007 for the purposes of this appeal, there are no
material differences between the current version of this statute
and the version in effect on 23 August 2007.
-5Therefore, we must look to N.C. Gen. Stat. § 20-1 et seq. for the
full scope of the duties and powers conferred upon the Division by
the General Assembly.
N.C. Gen. Stat. § 20-16.2 (2006) is the
statute delineating the powers of the Division when a person has
been charged with an implied-consent offense, and that person
refuses to submit to a chemical analysis.
(c) Request to Submit to Chemical Analysis.
-- A law enforcement officer or chemical
analyst shall designate the type of test or
tests to be given and may request the person
charged to submit to the type of chemical
analysis designated.
If the person charged
willfully refuses to submit to that chemical
analysis, none may be given under the
provisions of this section, but the refusal
does
not
preclude
testing
under
other
applicable procedures of law.
(c1) Procedure for Reporting Results and
Refusal to Division.
-- Whenever a person
refuses to submit to a chemical analysis
. . . the law enforcement officer and the
chemical analyst shall without unnecessary
delay go before an official authorized to
administer oaths and execute an affidavit(s)
stating []:
. . . .
(5) The results of any tests given or that
the person willfully refused to submit to a
chemical analysis.
The officer shall immediately mail the
affidavit(s) to the Division. If the officer
is also the chemical analyst who has notified
the person of the rights under subsection (a),
the officer may perform alone the duties of
this subsection.
(d) Consequences of Refusal; Right to Hearing
before Division; Issues. -- Upon receipt of a
properly
executed
affidavit
required
by
subsection
(c1),
the
Division
shall
expeditiously notify the person charged that
the person's license to drive is revoked for
-612 months, effective on the tenth calendar day
after the mailing of the revocation order
unless, before the effective date of the
order, the person requests in writing a
hearing before the Division.
. . . .
(e) Right to Hearing in Superior Court. -- If
the revocation for a willful refusal is
sustained after the hearing, the person whose
license has been revoked has the right to file
a petition in the superior court for a hearing
on the record.
The superior court review
shall
be
limited
to
whether
there
is
sufficient evidence in the record to support
the Commissioner's findings of fact and
whether the conclusions of law are supported
by the findings of fact and whether the
Commissioner committed an error of law in
revoking the license.
N.C.G.S. § 20-16.2 (emphasis added).3
Respondent argues that our Court should look to the title of
N.C.G.S.
§
20-16.2:
"Implied
consent
to
chemical
analysis;
mandatory revocation of license in event of refusal; right of
driver to request analysis[,]" and to section (a) of that statute,
which mandates that a person authorized to perform a chemical
analysis
must
inform
the
suspect
of
certain
rights
before
administering the chemical analysis. N.C.G.S. § 20-16.2(a) states,
in part:
Basis for Officer to Require Chemical
Analysis; Notification of Rights. -- 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. Any law enforcement
officer who has reasonable grounds to believe
3
N.C. Gen. Stat. § 20-22 (2006) mandates that the provisions
of N.C.G.S. § 20-1 et seq. apply equally to non-residents and
residents alike.
-7that the person charged has committed the
implied-consent offense may obtain a chemical
analysis of the person.
Before any type of chemical analysis is
administered the person charged shall be taken
before a chemical analyst authorized to
administer a test of a person's breath or a
law enforcement officer who is authorized to
administer chemical analysis of the breath,
who shall inform the person orally and also
give the person a notice in writing that:
(1) You have been charged with an
implied-consent
offense.
Under
the
implied-consent law, you can refuse any test,
but your drivers license will be revoked for
one year and could be revoked for a longer
period of time under certain circumstances,
and an officer can compel you to be tested
under other laws.
N.C.G.S. § 20-16.2(a).
Respondent contends that the Division is
empowered to suspend driving privileges when "a person refuses to
submit to chemical analysis[.]"
Respondent's presentation of the
requirements of N.C.G.S. § 20-16.2 seems to negate any requirement
that the refusal be "willful."
However, Respondent also states
that N.C.G.S. § 20-16.2(d) "is nothing more than a statutory
embodiment of due process protections for persons accused of
willfully refusing chemical analysis, and [the Division] is not
prohibited from suspending a person's driving privilege without
receipt of a 'properly executed affidavit.'"
The appellate decisions of our Courts make it clear that a
person's refusal to submit to chemical analysis must be willful in
order to suspend that person's driving privileges.
See Etheridge
v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980) (citation
omitted)
(willful
refusal
permitting
suspension
of
driving
-8privileges must include actions constituting "'a conscious choice
purposefully made'");
Steinkrause v. Tatum, __ N.C. App. __, __,
689 S.E.2d 379, 381 (2009) ("N.C. Gen. Stat. § 20-16.2 . . .
authorizes a civil revocation of the driver's license when a driver
has willfully refused to submit to a chemical analysis.")(emphasis
added); State v. Summers, 132 N.C. App. 636, 643-44, 513 S.E.2d
575,
580
(1999)
("A
defendant's
refusal
to
submit
to
the
intoxilyzer test after being charged with DWI can give rise to
civil proceedings to revoke defendant's driver license, but only if
the refusal is a 'willful refusal.'
See N.C. Gen. Stat. §
20-16.2.") (emphasis added); In re Suspension of License of Rogers,
94 N.C. App. 505, 510, 380 S.E.2d 599, 602 (1989) (matter remanded
for findings regarding whether the petitioner's refusal to submit
to chemical analysis was willful).
Respondent implicitly argues, however, that mere refusal of a
chemical analysis must imply willfulness, and the Division may
therefore revoke a person's driving privileges based solely on the
fact that that person refused to take the test.
If we were to
adopt Respondent's reading of N.C.G.S. § 20-16.2, no proof of a
"willful" refusal would be required for the Division to revoke a
person's driving privileges; however, pursuant to N.C.G.S. § 2016.2(c1)(5) a sworn affidavit indicating that person willfully
refused
chemical
analysis
would
be
required
to
trigger
the
Division's obligation to notify that person that his driving
privileges had been suspended.
Such a result cannot have been the
intent of the General Assembly.
In re Mitchell-Carolina Corp., 67
-9N.C. App. 450, 452-53, 313 S.E.2d 816, 818 (1984) ("The rules of
statutory construction provide that 'the language of a statute will
be interpreted so as to avoid an absurd consequence. . . .'
'Where
a literal reading of a statute "will lead to absurd results, or
contravene the manifest purpose of the Legislature, as otherwise
expressed, the reason and purpose of the law shall control and the
strict letter thereof shall be disregarded."'") (internal citations
omitted).
Nor are we convinced by Respondent's argument that, because
the form DHHS 3908 was sent to the Division along with the
affidavit,
and
requirement
the
that
form
the
DHHS
sworn
3908
was
affidavit
marked
include
"refused,"
an
the
affirmative
statement of Petitioner's willful refusal was satisfied.4 Although
form DHHS 3907 includes boxes to check indicating that either form
DHHS 3908 or form DHHS 4003 is attached, nowhere in N.C. Gen. Stat.
§ 20-16.2 is it required that a form DHHS 3908 (or a form DHHS
4003) be incorporated in the affidavit mandated under N.C.G.S. §
20-16.2(c1).
We hold that a form DHHS 3908 is not a substitute for
a "properly executed affidavit" as required by N.C. Gen. Stat. §
20-16.2(c1).
This is not to indicate, however, that a form DHHS
3908, or other relevant documents, may not be attached to a
4
Respondent states elsewhere in his brief that: "Although
the test ticket states that the test was 'REFUSED,' because it
does not include the word 'WILLFULLY,' the test ticket -- and by
extension, the affidavit -- arguably does not state 'that the
person willfully refused to submit to a chemical analysis.'
N.C.G.S. § 20-16.2(c1)(5)." Respondent appears to state that the
affidavit, along with the form DHHS 3908, does not constitute an
unequivocal affirmation that Petitioner's refusal was "willful."
-10properly executed affidavit.
We hold only that the affidavit, in
whatever form submitted, must indicate that a person's refusal to
submit to chemical analysis was willful.
N.C.G.S. § 20-16.2 required that Officer Ratliff complete an
affidavit indicating that Petitioner had willfully refused the
chemical analysis, and that Officer Ratliff, before an "official
authorized to administer oaths and execute [affidavits]," swear
under
oath
affidavit.
to
the
truth
of
the
information
included
in
the
Officer Ratliff quite admirably and honestly informed
Hearing Officer Snow that Officer Ratliff failed to check the box
indicating Petitioner had willfully refused to submit to the
chemical analysis before he executed the affidavit in front of the
magistrate.5 Therefore, the requirements of N.C.G.S. § 20-16.2(c1)
were not met.
Respondent further argues that our Court did not properly
consider the findings of fact from Hearing Officer Snow's 20
November 2007 decision.
Respondent first contends that one of
Hearing Officer Snow's rulings on a motion made by Petitioner was
a finding of fact. In denying Petitioner's motion, Hearing Officer
Snow ruled in part: "The affidavits received from Officer Ratliff
were Division exhibits One and Two.
5
Exhibit Two, DHHS 3908, which
Respondent contends that the testimony of Officer Ratliff
was ambiguous concerning whether he checked the box indicating
Petitioner had willfully refused to submit to chemical analysis.
Respondent's brief does not include citation to any testimony
indicating ambiguity on this point. Our Court's thorough review
of the record, including Officer Ratliff's testimony, shows no
ambiguity. Officer Ratliff, by his clear and unambiguous
statements, did not check the box on the affidavit indicating
Petitioner willfully refused to submit to chemical analysis.
-11is referred to in the affidavit . . . clearly shows a refusal
stamped
on
authority
the
to
test
revoke
ticket.
Thereby
[P]etitioner's
giving
driving
the
[D]ivision
privilege."
This
ruling, which includes conclusions of law, is not a finding of
fact.
The only fact contained in this ruling is that the DHHS 3908
in this case was clearly marked "refused."
Respondent next directs our Court to findings of fact made by
the superior court. First, these findings of fact are not relevant
to Respondent's contention that we failed to properly consider the
findings of Hearing Officer Snow, in that the findings were not
made by Hearing Officer Snow.
Second, the superior court is
directed by statute to act as an appellate court, not as a trial
court, in its review.
N.C.G.S. § 20-16.2(e) states:
Right to Hearing in Superior Court. -- If the
revocation for a willful refusal is sustained
after the hearing, the person whose license
has been revoked has the right to file a
petition in the superior court for a hearing
on the record.
The superior court review
shall
be
limited
to
whether
there
is
sufficient evidence in the record to support
the Commissioner's findings of fact and
whether the conclusions of law are supported
by the findings of fact and whether the
Commissioner committed an error of law in
revoking the license.
N.C.G.S. § 20-16.2(e) (emphasis added). Because the superior court
was acting as an appellate court, our Court does not review the
additional findings of fact made by the superior court,
which are
surplusage, id.; see also Meza v. Division of Soc. Servs., 364 N.C.
61, 65-73, 692 S.E.2d 96, 99-104 (2010); N.C. Dep't of Env't &
Natural Res. v. Carroll, 358 N.C. 649, 658-65, 599 S.E.2d 888,
-12894-98 (2004); State v. Hensley, __ N.C. App. __, __, 687 S.E.2d
309, 311 (2010); Dew v. State ex rel. North Carolina DMV, 127 N.C.
App. 309, 310-11, 488 S.E.2d 836, 837 (1997), and Respondent had no
right to appeal those findings.
See State v. Washington, 116 N.C.
App. 318, 320-21, 447 S.E.2d 799, 801 (1994).
Respondent argues that Hearing Officer Snow never "found that
Officer Ratliff's affidavit was improperly executed."
However, it
is the province of our Court to determine the correctness of a
hearing officer's conclusions of law; also, Respondent's contention
is factually mistaken. Hearing Officer Snow included the following
in his order:
Motion Number Two: [Petitioner] contended the
revocation was not valid because there were no
facts supporting reasonable grounds that the
petitioner had committed an implied-consent
offense on the affidavit (Division Exhibit
One). Therefore, he would offer a motion to
rescind the revocation based on lack of
reasonable grounds.
Ruling: Motion Denied.
If the affidavits were the only evidence in
this case the motion may be valid. However,
the officer's testimony is the state[']s best
evidence in this case.
The lack of facts
supporting reasonable grounds on the affidavit
will carry little weight in determining if
reasonable grounds were present. (Emphasis
added).
Respondent further argues that because N.C.G.S. § 20-16.2
states that the required sworn affidavit must include "[t]he
results of any tests given or that the person willfully refused to
submit to a chemical analysis[,]" (emphasis added), under N.C.G.S.
§
20-16.2(c1)(5),
no
willful
refusal
was
required
to
revoke
-13Petitioner's driving privileges.
Respondent
interprets
the
language
of
N.C.G.S.
§
20-
16.2(c1)(5) to mean that as long as the affidavit indicates that at
least one of the two conditions has been met, the affidavit is
sufficient.
Respondent argues that, because the Division received
a form DHHS 3908 that included "the results of any tests given,"
the requirements of N.C.G.S. § 20-16.2(c1)(5) were satisfied.
First, in the present case no test was given.
Petitioner refused
to
were
submit
to
chemical
analysis.
Second,
we
to
adopt
Respondent's interpretation, the second part of N.C.G.S. § 2016.2(c1)(5) would be rendered meaningless.
Wilkins v. N.C. State
Univ., 178 N.C. App. 377, 379, 631 S.E.2d 221, 223 (2006) ("It is
well established that 'a statute must be construed, if possible, to
give meaning and effect to all of its provisions.'") (internal
citation omitted).
Third, our appellate courts have consistently
conducted a "willfulness" analysis when considering the issue of
refusal to submit to chemical analysis. See Etheridge, 301 N.C. at
81, 269 S.E.2d at 136;
Steinkrause, __ N.C. App. at __, 689 S.E.2d
at 381 ("N.C. Gen. Stat. § 20-16.2 . . . authorizes a civil
revocation of the driver's license when a driver has willfully
refused to submit to a chemical analysis.") (emphasis added);
Summers, 132 N.C. App. at 643-44, 513 S.E.2d at 580 ("A defendant's
refusal to submit to the intoxilyzer test after being charged with
DWI can give rise to civil proceedings to revoke defendant's driver
license, but only if the refusal is a 'willful refusal.'
See N.C.
Gen. Stat. § 20-16.2.") (emphasis added); In re Suspension of
-14License of Rogers, 94 N.C. App. 505, 510, 380 S.E.2d 599, 602
(1989)
(matter
remanded
for
findings
regarding
whether
the
petitioner's refusal to submit to chemical analysis was willful).
In the 20 November 2007 hearing conducted pursuant to N.C.G.S.
§ 20-16.2(d), Hearing Officer Snow concluded in his "Findings of
Fact, Conclusions of Law and Decision" that any failure by Officer
Ratliff to check the box for section fourteen on the affidavit
could not have prejudiced Petitioner, and did not deprive the
Division of the authority to revoke Petitioner's license.
Officer
Snow
concluded,
as
a
matter
of
law,
that
Hearing
Petitioner
willfully refused to submit to a chemical analysis and that "the
Order of Revocation of the driving privilege of [Petitioner] is
sustained."
However,
the
uncontroverted
testimony
of
Officer
Ratliff
before Hearing Officer Snow was that Officer Ratliff never marked
any box associated with section fourteen on the affidavit before he
made his affirmation to the magistrate and executed the affidavit.
Officer Ratliff was asked at the hearing: "you never went back and
told the magistrate or gave anybody authority to change that
affidavit [to check the box associated with section fourteen]."
Officer Ratliff responded, "no, sir."
Officer Ratliff also agreed
that "the copy [of the affidavit that was] with the Division
. . . [was] not the same [one] that [Officer Ratliff] swore to in
front of the magistrate."
When construing N.C.G.S. § 20-16.2, our Court has stated:
"The intent of the legislature controls the
interpretation of a statute.
When the
-15language
of
a
statute
is
clear
and
unambiguous, there is no room for judicial
construction and the courts must give the
statute its plain and definite meaning, and
are
without
power
to
interpolate,
or
superimpose, provisions and limitations not
contained therein."
Nicholson v. Killens, 116 N.C. App. 473, 477, 448 S.E.2d 542, 544
(1994), quoting In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386,
388-89 (1978) (citations omitted).
are to be strictly construed.'"
"'Statutes imposing a penalty
Killens, 116 N.C. App. at 477, 448
S.E.2d at 544, quoting Carter v. Wilson Construction Co., 83 N.C.
App. 61, 68, 348 S.E.2d 830, 834 (1986).
N.C.G.S. § 20-16.2 states in relevant part:
(c1) Procedure for Reporting Results and
Refusal to Division. -- Whenever a person
refuses to submit to a chemical analysis, a
person has an alcohol concentration of 0.15 or
more, or a person's drivers license has an
alcohol concentration restriction and the
results of the chemical analysis establish a
violation
of
the
restriction,
the
law
enforcement officer and the chemical analyst
shall without unnecessary delay go before an
official authorized to administer oaths and
execute an affidavit(s) stating []:
. . . .
(5) The results of any tests given or that
the person willfully refused to submit to a
chemical analysis.
. . . . The officer shall immediately mail
the affidavit(s) to the Division.
If the
officer is also the chemical analyst who has
notified the person of the rights under
subsection (a), the officer may perform alone
the duties of this subsection.
N.C.G.S. § 20-16.2(c1) (emphasis added).
properly
executed
affidavit
required
by
"Upon receipt of a
subsection
(c1),
the
-16Division shall expeditiously notify the person charged that the
person's license to drive is revoked for 12 months[.]"
N.C.G.S. §
20-16.2(d) (emphasis added).
Construing N.C.G.S. § 20-16.2 strictly, as we are compelled to
do, Killens, 116 N.C. App. at 477, 448 S.E.2d at 544, we hold that
the plain language of the statute requires that the Division
receive a "properly executed affidavit" that includes all the
requirements
set
forth
in
N.C.G.S.
§
20-16.2(c1)
before
the
Division is vested with the authority to revoke a person's driving
privileges pursuant to N.C.G.S. § 20-16.2.
"The
presumption
is
that
no
part
of
a
statute
is
mere
surplusage, but each provision adds something which would not
otherwise be included in its terms."
Domestic Electric Service,
Inc. v. Rocky Mt., 285 N.C. 135, 143, 203 S.E.2d 838, 843 (1974)
(citation omitted).
If we were to hold that the Division had the
authority to revoke Petitioner's driving privileges without first
obtaining an affidavit including a sworn statement of willful
refusal as stated in N.C.G.S. § 20-16.2(c1), we would be rendering
that language meaningless, as mere surplusage.
The
dissenting
Petitioner's
driving
opinion
would
privileges
and
affirm
relies
the
revocation
most
directly
of
on
Ferguson v. Killens, 129 N.C. App. 131, 497 S.E.2d 722 (1998),
where the Division failed to notify the petitioner that his license
had been revoked until ninety-nine days after the petitioner had
willfully refused submission to chemical analysis. Id. at 141, 497
S.E.2d at 727. In Ferguson, the petitioner argued that his license
-17should be reinstated because the Division had violated the mandate
of N.C.G.S. § 20-16.2(d), requiring the Division, "[u]pon receipt
of a properly executed affidavit required by subsection (c1), [to]
expeditiously notify the person charged that the person's license
to drive is revoked[.]"
The Ferguson Court held that, even
assuming the Division had violated the notification requirement of
N.C.G.S. § 20-16.2(d), the petitioner's argument that his license
should be reinstated failed for the following reasons: (1) the
petitioner had not shown how any failure on the part of the
Division to timely notify him of the revocation had prejudiced the
petitioner,
and
(2)
"G.S.
20-16.2(d)
states
that
a
license
revocation for willful refusal must be sustained if the five
conditions specified are met[,]" and "[n]one of these conditions
has anything to do with 'expeditious notice.'"
Ferguson, 129 N.C.
App. at 141, 497 S.E.2d at 728.
The facts in Ferguson are distinguishable from the present case,
and Ferguson does not control our analysis or our holding in this
matter.
First,
the
petitioner
in
Ferguson
made
no
showing
concerning how untimely notification had prejudiced him in any
manner, because all the requirements for revoking the petitioner's
license pursuant to N.C.G.S. § 20-16.2 had been met.
There was no
argument in Ferguson that the affidavit providing the Division with
the authority to revoke the petitioner's license was defective in
any way.
Therefore, the petitioner's license had been properly
-18revoked.6
Any untimely notification of the revocation did not
deprive the petitioner of the opportunity to challenge the bases
for the revocation, nor did the petitioner demonstrate how an
untimely notification could have prejudiced him in any other
manner.
In
the
case
before
us,
we
have
held
that
a
necessary
requirement for the revocation of Petitioner's driving privileges
had
not
been
met:
the
Division
never
received
an
affidavit
indicating Petitioner had willfully refused chemical analysis.
This corresponds to one of the five requirements for revocation for
willful refusal referenced in Ferguson, specifically N.C.G.S. § 2016.2(d)(5): "The person willfully refused to submit to a chemical
analysis."
Unlike
the
facts
in
Ferguson,
the
prejudice
to
Petitioner in this case is clear: Petitioner had a right to drive
in the State of North Carolina.
Because the Division erred by
revoking Petitioner's North Carolina driving privileges without
first receiving a properly executed affidavit stating Petitioner
had willfully refused chemical analysis, Petitioner's right to
drive in North Carolina was to be suspended by the Division.
More importantly, unlike the situation in Ferguson, the five
requirements necessary for a hearing officer to uphold a revocation
or suspension, N.C.G.S. §§ 20-16.2(d) (1) to (5), are not relevant
to our analysis.
We have held that the Division had no authority
to suspend Petitioner's driving privileges in the first instance
6
Though, due to the petitioner's request for a hearing, the
revocation was suspended until the outcome of the hearing had
been determined. N.C.G.S. § 20-16.2(d).
-19because the Division never received "a properly executed affidavit
required by subsection (c1)[.]"
N.C.G.S. § 20-16.2(d).
Because
Petitioner's driving privileges were suspended without authority,
those sections of N.C.G.S. § 20-16.2(d) applying to Petitioner's
right to a hearing before the Division, and those sections of
N.C.G.S. § 20-16.2(d) applying to the requirements for sustaining
the suspension, including N.C.G.S. §§ 20-16.2(d) (1) to (5), are
not relevant in this case.
As Petitioner's driving privileges
should not have been suspended in the first instance, no hearing
before the Division should have ever occurred.
The dissenting opinion concludes that N.C. Gen. Stat. § 2016.2(d) provides the right to a hearing and the hearing satisfies
the constitutional due process requirement. The dissenting opinion
agrees with Hearing Officer Snow that, even if it was an employee
of the Division who "'checked the block for item fourteen as
counsel [for Petitioner] contended, this is not a fatal error as
[P]etitioner has a remedy through the hearing process.'"
As we
have stated above, no cause for a hearing was ever properly
triggered, as the Division never had the authority to suspend
Petitioner's driving privileges.
We are unprepared to conclude that an error prejudicing
Petitioner may be cured through a hearing that should not have
occurred, because it was triggered by a suspension of Petitioner's
driving privileges that should not have happened.7
7
The Division
For example, an appellate court may reverse or modify the
final decision of an administrative body if the appellate court
determines the final agency decision has prejudiced a petitioner
-20did not have authority to suspend Petitioner's driving privileges
based upon the affidavit it received from Officer Ratliff. Were we
to hold otherwise, we would render meaningless the requirement that
the Division first receive an affidavit attesting to a petitioner's
willful
refusal
before
suspending
that
privileges based upon a willful refusal.
petitioner's
driving
The Division would be
permitted to suspend any person's driving privileges for willful
refusal without first obtaining any evidence or attestation that a
willful refusal had occurred.
That person would then have to
request a hearing in order to compel the State to present any
evidence justifying the suspension.
If the petitioner did not
request a hearing, his driving privileges could be suspended
without the Division ever having received any evidence of willful
refusal.
We do not believe this is contemplated in the clear
language of N.C.G.S. § 20-16.2, nor do we believe this could have
been the intent of the General Assembly in drafting that statute.
We do not believe the General Assembly intended to grant the
Division the authority to suspend driving privileges, or revoke a
driver's license, without any indication that one of the bases for
suspension or revocation required by N.C.G.S. § 20-16.2(c1) had
occurred.
Finally, Petitioner argues in his brief that suspension of his
driving privileges violated his due process rights under the United
because the final decision was "[m]ade upon unlawful
procedure[.]" N.C. Gen. Stat. § 150B-51 (b)(3) (2009); In re
Appeal of Ramseur, 120 N.C. App. 521, 523-24, 463 S.E.2d 254, 256
(1995).
-21States Constitution.
Because we have revoked the suspension of
Petitioner's driving privileges on other grounds, we do not address
Petitioner's due process argument. We do, however, restate that we
find a properly executed affidavit stating willful refusal to be a
prerequisite to any authority of the Division to suspend driving
privileges based upon willful refusal.
with
the
dissenting
opinion's
We therefore cannot agree
apparent
conclusion
that
the
affidavit requirement is a mere "administrative procedure" in no
manner "affecting the process due a petitioner." We find the facts
of the cases cited in the dissenting opinion in support of this
position distinguishable from the facts of our case.8
We do not
find that the holdings in the cases cited by the dissenting opinion
compel a different result than we reach in this opinion.
We hold that the Division did not receive "a properly executed
affidavit required by subsection (c1)" and, therefore, the Division
had no authority to revoke Petitioner's driving privileges pursuant
to N.C.G.S. § 20-16.2. Absent the authority to revoke Petitioner's
license, there was also no authority pursuant to N.C.G.S. § 20-16.2
for the Division to conduct a review hearing, or for appellate
review in the superior court.
Therefore,
8
the
rulings
of
Hearing
Officer
Snow
and
the
For example, in In re Rogers, 94 N.C. App. 505, 380 S.E.2d
599 (1989), cited in the dissent, our Court stated that
"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 [breathalyser] test." Id. at 508, 380
S.E.2d at 600. In the case before us, the violation of
Petitioner's rights was directly related to his alleged willful
refusal to submit to chemical analysis.
-22superior court affirming the revocation of Petitioner's license are
void.
We vacate the order of the superior court affirming the
decision of Hearing Officer Snow, and remand to the Division for
reinstatement of Petitioner's North Carolina driving privileges.
In light of this holding, we do not address Petitioner's additional
arguments.
Vacated and remanded.
Judge BRYANT concurs.
Judge WYNN dissents with a separate opinion.
NO. COA09-370-2
NORTH CAROLINA COURT OF APPEALS
Filed: 17 August 2010
RICHARD JAMES LEE,
Petitioner-Appellant
v.
Wilkes County
No. 07 CVS 2486
WILLIAM C. GORE, JR., as
Commissioner of the Division
of Motor Vehicles, North
Carolina Department of
Transportation,
Respondent-Appellee
WYNN, Judge, dissenting.
In light of my reconsideration of this matter upon rehearing,
I
am
inclined
to
dissent
and
afford
our
Supreme
Court
the
opportunity to address the issue of first-impression presented by
this case:
What remedy is Petitioner entitled to where a law
enforcement officer fails to follow the statutory mandate to
“execute an affidavit(s) stating that: . . . the person willfully
refused to submit to a chemical analysis”?
N.C. Gen. Stat. § 20-
16.2 (c1) (2009). The majority concludes that because the Division
of Motor Vehicles (“DMV”) did not receive a properly executed
affidavit as mandated by the statute, the DMV was without authority
to revoke Petitioner’s driving privileges.
The issue here is what remedy Petitioner is entitled to for
the error alleged.
While the statutory provision here construed
employs the word “shall,” it does not prescribe the remedy for a
violation, nor does it predicate the authority of the DMV on
compliance with its terms. See N.C. Gen. Stat. § 20-16.2(d)(2009).
-24In determining the consequences of such an error, it is worth
considering
that
our
cases
distinguish
between
violations
of
administrative procedure and those affecting the process due to a
petitioner.
This distinction was recognized in Rice v. Peters, Comr. Of
Motor Vehicles, 48 N.C. App. 697, 269 S.E.2d 740 (1980).
The
petitioner in Rice directed this Court to the statutory provision
requiring the arresting officer to request that the person arrested
submit to a breathalyzer test.
Id. at 700, 269 S.E.2d at 742.
Although the trial court’s order indicated that petitioner refused
to take the breathalyzer test, the petitioner argued that the trial
court erred because its order lacked a “finding that he was
requested to submit to the breathalyzer test after being informed
of his statutory rights.” Id. This Court affirmed the revocation,
stating “[w]e do not believe the North Carolina General Assembly
intended by its enactment of G.S. 20-16.2(c) to prescribe such a
rigid sequence of events as contended by [petitioner].”
Id.
The administrative procedures provided for in
G.S.
20-16.2
are
designed
to
promote
breathalyzer tests as a valuable tool for law
enforcement officers in their enforcing the
laws against driving under the influence while
also protecting the rights of the State’s
citizens. We hold the purpose of the statute
to be fulfilled when the petitioner is given
the option to submit or refuse to submit to a
breathalyzer test and his decision is made
after having been advised of his rights in a
manner provided by the statute.
Id. at 700-01, 269 S.E.2d at 742 (citations and emphasis omitted).
We faced a similar problem in In re Suspension of License of
Rogers, 94 N.C. App. 505, 380 S.E.2d 599 (1989). “Under G.S.
-2520-16.2(a)(6), petitioner had the right to select a witness to view
the testing procedures . . . .”
Id. at 507, 380 S.E.2d at 600.
The record in Rogers showed that, although the actual testing
occurred in the presence of the witness, the breathalyzer operator
performed a simulator test prior to the witness’s arrival.
Id.
The superior court ruled 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.”
Id.
This
Court
disagreed,
citing
Rice.
“In
reviewing
this
revocation, the trial court could properly consider only those
issues specified in G.S. 20-16.2(d) . . . .”
S.E.2d at 600.
Id. at 508, 380
We acknowledged that “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.”
Id.
Considerations of fairness and accuracy are
not present . . . when a motorist refuses to
take a test for wholly unrelated reasons.
Under G.S. 20-16.2(a), a motorist impliedly
consents to chemical analysis if he is charged
with impaired driving. Revocation under the
statute is a penalty for failing to comply
with a condition for the privilege of
possessing a license; it is not punishment for
the crime for which the motorist was arrested.
Id. at 509, 380 S.E.2d at 601.
We again addressed the issue in Ferguson v. Killens, 129 N.C.
App. 131, 497 S.E.2d 722, appeal dismissed, disc. review denied,
348 N.C. 496, 510 S.E.2d 382 (1998).
The petitioner in Ferguson
-26argued that, because the letter notifying him of the revocation was
dated a full ninety days after the alleged refusal occurred, the
“DMV did not ‘expeditiously notify’ him of his one-year license
revocation as required by G.S. 20-16.2(d), [and] the revocation
must be rescinded.”
Id. at 141, 497 S.E.2d at 727.
This Court
found that the alleged error was not prejudicial.
Even if we assume that petitioner was not
“expeditiously notif[ied]” as required by the
statute, petitioner has made no showing that
his failure to be expeditiously notified has
prejudiced him. In addition, G.S. 20-16.2(d)
states that a license revocation for willful
refusal must be sustained if the five
conditions specified are met. None of these
conditions
has
anything
to
do
with
“expeditious notice.”
Petitioner’s argument
fails.
Id. at 141, 497 S.E.2d at 727-28.
The result in Ferguson is directly at odds with the majority’s
conclusion in the present case.9
9
We held in Ferguson that the
I read Ferguson differently from the majority primarily
because the relevant statute prohibits the revocation of a
driver’s license pending the hearing, if the driver requests such
a hearing. See N.C. Gen. Stat. § 20-16.2(d) (“If the person
properly requests a hearing, the person retains his or her
license, unless it is revoked under some other provision of law,
until the hearing is held, the person withdraws the request, or
the person fails to appear at a scheduled hearing.”). Thus,
because the petitioner in Ferguson requested a hearing, his
license could not have been revoked under the statute until the
conclusion of that hearing. See Ferguson, 129 N.C. App. at 134,
497 S.E.2d at 724 (“Petitioner requested an administrative review
by a DMV hearing officer.”). As in Ferguson, Petitioner in this
case requested a hearing and thus retained his license pending a
hearing. I therefore conclude that, like the petitioner in
Ferguson, Petitioner suffered no prejudice except that attendant
upon the hearing, at which he was given the opportunity to
contest the revocation of his driving privileges on the basis of
the willfulness of his refusal.
-27DMV’s
failure
strictly
to
comply
with
the
first
sentence
of
subsection (d) – the same provision as is here construed – did not
undermine the revocation of driving privileges when the petitioner
could not demonstrate any prejudice.
See id.
Petitioner in the
present case has not demonstrated that he was prejudiced in any way
by the improperly executed affidavit that was received by the DMV.
Moreover,
as
we
noted
in
Ferguson,
the
statute
limits
consideration at the hearing to specifically enumerated factors.
Id. at 141, 497 S.E.2d at 728.
“None of these conditions has
anything to do with ‘expeditious notice.’” Id. Similarly, in this
case,
none
of
these
conditions
sufficiency of the affidavit.
has
anything
to
do
with
the
See N.C. Gen. Stat. § 20-16.2(d).
It follows that Petitioner can not assert the insufficiency of the
affidavit
as
a
ground
upon
which
to
invalidate
the
proposed
revocation of his driving privileges.
I conclude by pointing out that N.C. Gen. Stat. § 20-16.2(d)
provides the right to a hearing.
“Such a hearing satisfies the
constitutional due process requirement.”
Montgomery v. North
Carolina Dept. of Motor Vehicles, 455 F. Supp. 338 (W.D.N.C. 1978),
aff’d, 599 F.2d 1048 (4th Cir. 1979).
On the basis of the
precedents considered above, I agree with the DMV hearing officer
who first heard Petitioner’s case that “[e]ven if an employee of
the
Division
checked
the
block
for
item
fourteen
as
counsel
contended, this is not a fatal error as the petitioner has a remedy
through the hearing process.”
Accordingly, because I would affirm
the revocation of Petitioner’s driving privileges, I respectfully
-28dissent and present to the Respondent the opportunity to appeal
this issue as a matter of right to our Supreme Court.
