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Seders v. Powell

Filed: November 6, 1979.

DONALD A. SEDERS
v.
EDWARD L. POWELL, COMMISSIONER OF MOTOR VEHICLES



On plaintiff's petition for discretionary review of decision of the Court of Appeals, Carlton, Justice. Justice Brock took no part in the consideration or decision of this case.

Carlton

We are presented by plaintiff with three arguments on this appeal: (1) That the lower courts misconstrued G.S. 20-16.2(a)(4) to impose an absolute 30 minute time limit in which one charged with driving under the influence has an opportunity to consult with a lawyer, (2) that the evidence in the instant case does not support the trial court's finding that plaintiff willfully refused to submit to the breathalyzer test, and (3) that there is a constitutional right to confer with counsel prior to taking the breathalyzer test and the 30 minute time limit is both irrational and a violation of due process. We reject the plaintiff's contentions and affirm.

I. The Statutory Claim

Plaintiff first contends that the Court of Appeals incorrectly resolved the conflict between G.S. 20-16.2(a)(4) and G.S. 15A-501(5) and thereby created a conflict with a prior decision of another panel of the Court of Appeals in Price v. N.C. Dept. of Motor Vehicles, supra.

G.S. 20-16.2(a)(4) provides in pertinent part:

[The accused] 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. (Emphasis added.)

G.S. 15A-501, however, provides in pertinent part:

Upon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law enforcement officer:

(5) Must without unnecessary delay advise the person arrested of his right to communicate with counsel and friends and must allow him reasonable time and reasonable opportunity to do so. (Emphasis added.)

In Price, the Court of Appeals held that the 30 minute time limitation mandated by G.S. 20-16.2(a)(4) refers only to the right to

"select a witness." It interpreted G.S. 15A-501(5), which gives a criminal defendant a right to consult with counsel within a reasonable time after arrest, as applying to breathalyzer tests. Thus, the right to contact an attorney before taking the test was not limited to 30 minutes but rather was limited to a "reasonable time." Only the right to select a witness was subject to the 30 minute ban.

The State argues here that the reasonable time language in Price is mere dictum. We disagree. Speaking through Judge Hedrick, the Court of Appeals in the instant case expressly disavowed the Price analysis. The two decisions are obviously in conflict.

In 1973 our legislature amended G.S. 20-16.2 in several respects and the phrase "for this purpose" was inserted in place of the phrase "for other purposes." 1973 N.C. Sess. Laws 181-82 (Chap. 206, s. 1). Echoing an argument advanced in Price, plaintiff here asserts that the phrase "for this purpose" is singular and that the change enacted by the General Assembly expressed its obvious intent to apply the 30 minute time limit only to defendant's right to secure a witness to view the testing procedure. On the basis of that construction, plaintiff argues, he would then have a "reasonable time" not limited to 30 minutes within which to call an attorney pursuant to G.S. 15A-501(5).

We cannot agree for several reasons. First, the 1973 amendment which inserted "for this purpose" in the place of "for these purposes" did so at the same time that it enumerated three other rights accruing to a driver faced with the prospect of a breathalyzer test. We believe the limiting words were inserted to apply to the single generic right enumerated in (a)(4), the right to have advice and support during the testing process, as opposed to the other rights enumerated in the preceding subsections, G.S. 20-16.2(a)(1) through (a)(3). This view is bolstered by the very wording of G.S. 20-16.2(a)(4):

That he has the right to call an attorney and select a witness to view for him the testing procedure; but that the test shall not be delayed for this purpose [that is, the purpose of exercising the generic right embodied in this particular subsection ] for a period in excess of 30 minutes from the time he is notified of his rights [that is, the other rights enumerated in Page 459} G.S. 20-16.2(a) which include the right to ...


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