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Pappas v. North Carolina Department of Motor Vehicles

Filed: July 31, 1979.

CHRIS JOHN PAPPAS, PETITIONER
v.
NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, RESPONDENT



Appeal by respondent from Griffin, Judge. Judgment entered 16 May 1978 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 4 April 1979.

Webb, Judge. Judges Martin (Robert M.) and Mitchell concur.

Webb

We reverse the superior court for the reason we believe the court was governed by a misapprehension of the law. We infer from the statement of the court that it believed that a breathalyzer test has to be administered within thirty minutes of the time a person is advised of his rights in regard to taking the test. The court found as a fact that petitioner was not offered the test until after the time for administering it had expired. G.S. 20-16.2 provides in part:

(a) . . . The person arrested shall forthwith be taken before a person authorized to administer a chemical test and this person shall inform the person arrested both verbally and in writing . . .

(4) That he has the right to call an attorney and select a witness to view for him the testing procedures; but

that the test shall not be delayed for this purpose for a period in excess of 30 minutes from the time he is notified of his rights.

This statute was interpreted in Price v. North Carolina Department of Motor Vehicles, 36 N.C. App. 698, 245 S.E.2d 518, appeal dismissed, 295 N.C. 551 (1978) to mean that a person offered a breathalyzer test has thirty minutes to select a witness to the test and a reasonable time to call an attorney and communicate with him. The statute does not require that the breathalyzer test be administered within thirty minutes of the time a person's rights are read to him. Creech v. Alexander, 32 N.C. App. 139, 231 S.E.2d 36, cert. denied, 293 N.C. 589 (1977). From the statement by the court and the finding of fact, we conclude this was its understanding of the law. Since the court decided the case under a misapprehension of the law, it must be reversed. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973).

Since other errors assigned may not recur, we do not discuss them.

Reversed and remanded.

Disposition

Reversed and remanded.

19790731 ...


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