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Wolski v. North Carolina Division of Motor Vehicles

Court of Appeals of North Carolina

March 21, 2017

JENNIFER ANNE WOLSKI, Petitioner,
v.
NORTH CAROLINA DIVISION OF MOTOR VEHICLES and the COMMISSIONER OF MOTOR VEHICLES, Respondents.

          Heard in the Court of Appeals 11 January 2017

         Appeal by Respondents from order entered 24 May 2016 by Judge Daniel A. Kuehnert in Mecklenburg County No. 15-CVS-23668 Superior Court.

          Knox, Brotherton, Knox & Godfrey, by Allen C. Brotherton, for Petitioner-Appellee.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for Respondent-Appellant.

          DILLON, Judge.

         North Carolina Division of Motor Vehicles and the Commissioner of Motor Vehicles (collectively referred to as "the DMV" or the "Respondents")[1] appeal from a trial court order reversing an agency decision that revoked Jennifer Anne Wolski's driver's license. After careful review, we affirm the trial court's order.

         I. Background

         In April 2015, a Huntersville police officer arrested Jennifer Anne Wolski for driving while under the influence.

         After being advised of her rights under N.C. Gen. Stat. § 20-16.2(a) (2013) at police department headquarters, Ms. Wolski refused to both submit to a breathalyzer test and sign the provided statutory form ("Rights Form").

         The officer, who is a certified chemical analyst, executed a sworn affidavit and revocation report[2] that contained conflicting information regarding Ms. Wolski's refusal to submit to breathalyzer testing.[3] Although the affidavit referred to an attached Rights Form as evidence of Ms. Wolski's refusal to submit to testing, the attached Rights Form did not indicate that Ms. Wolski had refused testing.

         The officer later amended the attached Rights Form to reflect Ms. Wolski's refusal to submit to testing. The officer did not re-execute the affidavit to reflect this change.

         The DMV notified Ms. Wolski of the impending revocation of her driver's license. Ms. Wolski requested a hearing to challenge the imminent revocation on jurisdictional grounds. The hearing officer rejected Ms. Wolski's jurisdictional arguments and affirmed the DMV's decision to revoke her driver's license.

         Ms. Wolski appealed the DMV hearing officer's decision. The trial court reversed the revocation of Ms. Wolski's ...


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