WAYNE T. BRACKETT, JR., Petitioner,
KELLY J. THOMAS, Commissioner, Respondent.
in the Court of Appeals 6 February 2017.
by respondent from order entered 16 June 2016 by Judge Susan
E. Bray in Guilford County, No. 16 CVS 2827 Superior Court.
N. Oakley for petitioner-appellee.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Christopher W. Brooks, for respondent-appellant.
T. Brackett, Jr. ("Petitioner") filed a complaint
against Kelly J. Thomas, Commissioner of the North Carolina
Division of Motor Vehicles, ("Respondent") on 19
January 2016. Petitioner alleged he was arrested and charged
with driving while impaired on 13 August 2015. Petitioner
further alleged "[Respondent] notified Petitioner that
effective January 18, 2016, [P]etitioner's driving
privileges were to be suspended and revoked based on a
refusal to submit to a chemical test."
Petitioner requested an administrative hearing before the
Division of Motor Vehicles ("DMV"), which was
conducted on 7 January 2016. The DMV administrative hearing
officer upheld the suspension of Petitioner's driving
privileges. Petitioner thereafter filed a petition for a
hearing in superior court, pursuant to N.C. Gen. Stat.
§§ 20-16.2 and 20-25 (2015).
superior court heard Petitioner's petition on 6 June 2016
and reversed the decision of the DMV, holding "[t]he
record does not support the conclusion under N.C. Gen. Stat.
§ 20-16.2(d)(5)." Petitioner was later convicted of
the underlying charge of impaired driving. Respondent appeals
and argues the superior court erred in reversing the
administrative decision of the DMV hearing officer. We
Statement of Jurisdiction
lies in this Court as an appeal of a final judgment of a
superior court entered upon review of an administrative
agency pursuant to N.C. Gen. Stat. § 7A-27(b)(1).
Standard of Review
appeal from a DMV hearing, the superior court sits as an
appellate court and determines "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. Gen. Stat. § 20-16.2(e)
(2015). This Court reviews the superior court's decision
to "'(1) determin[e] whether the trial court
exercised the appropriate scope of review and, if
appropriate, (2) decid[e] whether the court did so
properly.'" Johnson v. Robertson, 227
N.C.App. 281, 286-87, 742 S.E.2d 603, 607 (2013) (quoting
ACT-UP Triangle v. Comm'n for Health Servs., 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997)).
standard of review for an appellate court upon an appeal from
an order of the superior court affirming or reversing an
administrative agency decision is the same standard of review
as that employed by the superior court." Dorsey v.
UNC-Wilmington, 122 N.C.App. 58, 62-63, 468 S.E.2d 557,
560 (1996) (citation omitted). We apply the same standard of
review required by N.C. Gen. Stat. § 20-16.2(e) for
reviewing a DMV decision to revoke a petitioner's driving
privileges for a willful refusal to submit to chemical
analysis for an implied-consent charge. On appeal,
"there is a presumption in favor of regularity and
correctness in proceedings in the trial court with the burden
on the appellant to show error." L. Harvey & Son
Co. v. Jarman, 76 N.C.App. 191, 195-96, 333 S.E.2d 47,
50 (1985) (citing In re Moore, 306 N.C. 394, 293
S.E.2d 127 (1982), app. dism., 459 U.S. 1139, 74
L.Ed.2d 987 (1983)).
argues the superior court erred in reversing the DMV's
decision. The Commissioner asserts the agency record contains
substantial evidence to support the findings of fact, and the
findings of fact support the hearing officer's conclusion
that Petitioner willfully refused to submit to chemical
analysis. We disagree.
appeal arises from a revocation proceeding under N.C. Gen.
Stat. § 20-16.2, "which authorizes a civil
revocation of the driver's license when a driver has
willfully refused to submit to a chemical analysis."
Steinkrause v. Tatum, 201 N.C.App. 289, 292, 689
S.E.2d 379, 381 (2009), aff'd per curiam, 364
N.C. 419, 700 S.E.2d 222 (2010). N.C. Gen. Stat. §
20-16.2 "provides for a civil hearing at which the
driver can contest the revocation of her driver's
license." Id. at 292, 689 S.E.2d at 381.
to N.C. Gen. Stat. § 20-16.2(d), the hearing is limited
to consideration of whether:
(1) The person was charged with an implied-consent offense or
the driver had an alcohol concentration restriction on the
drivers license pursuant to G.S. 20-19;
(2) A law enforcement officer had reasonable grounds to
believe that the person had committed an implied-consent
offense or violated the alcohol concentration restriction on
the drivers license;
(3) The implied-consent offense charged involved death or
critical injury to another person, if this allegation ...