Creech v. Alexander

231 S.E.2d 36 (1977)

32 N.C. App. 139

Earl L. CREECH v. J. F. ALEXANDER, Commissioner of Motor Vehicles for the State of North Carolina.

No. 7627SC611.

Court of Appeals of North Carolina.

January 5, 1977.

*37 Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. Jean A. Benoy, Raleigh, for respondent-appellee.

Dolley & Katzenstein by Charles J. Katzenstein, Jr., Gastonia, for petitioner-appellant.

MORRIS, Judge.

In his first assignment of error, petitioner contends that the trial court erred in denying *38 his motion to rescind respondent's revocation order. He argues that the purpose of G.S. 20-16.2, which provides for mandatory revocation of driving privileges upon refusal to submit to chemical testing of blood or breath, is to produce evidence to assist the State in convicting motorists charged with driving under the influence in violation of G.S. 20-138. Petitioner maintains that this purpose was fully accomplished when he pleaded guilty to driving under the influence and that no further purpose could be served by suspension of his driving privileges for his refusal to take the test. Thus, according to petitioner, his plea of guilty effectively "cured the defect" of his earlier refusal to take the breathalyzer test. We disagree.

This question was effectively resolved in Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E.2d 553, petition for reh. den., 279 N.C. 397, 183 S.E.2d 241 (1971). The petitioner in that case pleaded guilty to driving under the influence after refusing to take the chemical breath test. He was sentenced to a 12-month suspension of his license on the charge. Thereafter, his license was suspended for 60 days for his refusal to take the test, and he contended that his sentence on the guilty plea constituted the "full penalty" which the State could extract. Sharp, J. (now C. J.), disagreed, stating:

"The suspension of a license for refusal to submit to a chemical test at the time of an arrest for drunken driving and a suspension which results in a plea of guilty or a conviction of that charge are separate and distinct revocations. . . . Petitioner's guilty plea in no way exempted him from the mandatory effects of the sixty-day suspension of his license if he had wilfully refused to take a chemical test. . . . Under implied consent statutes such as G.S. § 20-16.2, the general rule is that neither an acquittal of a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, nor a plea of guilty, nor a conviction has any bearing upon a proceeding before the licensing agency for the revocation of a driver's license for a refusal to submit to a chemical test. 60 C.J.S. Motor Vehicles § 164.16 (1969). . . ." 279 N.C. at 238, 182 S.E.2d at 561-62.

See also Vuncannon v. Garrett, Comr. of Motor Vehicles, 17 N.C.App. 440, 194 S.E.2d 364 (1973). Accordingly, the trial court did not err in denying petitioner's motion. This assignment is overruled.

In his second assignment of error, petitioner contends that the trial court erred in finding that he ". . . without just cause or excuse, voluntarily, understandingly and intentionally refused to submit. . ." to the breathalyzer test. Again, we disagree.

When a case is tried before a judge sitting without a jury, the findings of the court are as conclusive on appeal as a jury verdict if they are supported by any competent evidence. Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149 (1971). This is true even though the evidence might sustain findings to the contrary. Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835 (1971). Here, the evidence shows that petitioner was arrested after a law enforcement officer noticed that petitioner staggered, had slurred speech and smelled of alcoholic beverages. Petitioner was informed of his rights, both orally and in writing, including the fact that he could contact his attorney but that the test would not be delayed for over 30 minutes. After 20 minutes had passed, petitioner was again asked to take the test but refused stating that he wanted to wait for his attorney. The remaining time passed without petitioner's taking the test. Once the breathalyzer operator fully informed petitioner of his rights with regard to the breath test, there certainly was no obligation upon him to remind petitioner of the effect of his refusal to submit to the test. Petitioner's delay in taking the test, after being advised of the effect of his refusal, was at his own peril. Therefore, the trial court could properly find, as it did, that defendant had ". . . without just cause or excuse, voluntarily, understandingly and intentionally *39 refused to submit . . ." to the breathalyzer test.

Affirmed.

BROCK, C. J., and BRITT, J., concur.