WAYNE T. BRACKETT, JR., Petitioner
KELLY J. THOMAS, Commissioner of the North Carolina Division of Motor Vehicles, Respondent
in the Supreme Court on 13 March 2018.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
798 S.E.2d 778 (2017), affirming an order signed on 14 June
2016 by Judge Susan E. Bray in Superior Court, Guilford
N. Oakley for petitioner-appellee.
H. Stein, Attorney General, by Christopher W. Brooks, Special
Deputy Attorney General, for respondent-appellant.
matter, we reaffirm the well-established standard of review
when a court reviews a final agency decision by the North
Carolina Division of Motor Vehicles (DMV) to revoke a
driver's license for willful refusal to submit to a
chemical analysis. In determining that the DMV erred in
concluding that such a willful refusal had occurred, the
Court of Appeals here overstepped its role by making witness
credibility determinations and resolving contradictions in
the evidence presented during the DMV's administrative
hearing concerning the license revocation. Utilizing the
proper standard of review, we conclude that the unchallenged
findings of fact made by the DMV support the only disputed
legal conclusion, thus requiring us to uphold the DMV's
decision to revoke the driving privileges at issue.
Accordingly, we reverse the decision of the Court of Appeals
in this matter.
August 2015, petitioner Wayne T. Brackett, Jr. was arrested
in Guilford County and charged with the offense of driving
while impaired. Thereafter, respondent Kelly J. Thomas,
Commissioner of the DMV, notified petitioner that, effective
20 September 2015, petitioner's driving privileges would
be suspended and revoked based on petitioner's refusal to
submit to a chemical analysis. In response, petitioner
requested an administrative hearing before the DMV pursuant
to the Uniform Driver's License Act. See N.C.
G.S. § 20-16.2(d) (2017). That hearing was conducted on
7 January 2016, after which the DMV hearing officer upheld
the revocation of petitioner's driving privileges, making
numerous findings of fact and conclusions of law in his
written decision. Petitioner has never challenged the hearing
officer's findings of fact,  which are therefore binding
on each reviewing court. See e.g., Schloss v.
Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962)
("Where no exceptions have been taken to the findings of
fact, such findings are presumed to be supported by competent
evidence and are binding on appeal." (citations
omitted)); see also Koufman v. Koufman, 330 N.C. 93,
97, 408 S.E.2d 729, 731 (1991). These findings
therefore provide the factual record of the events underlying
August 13, 2015, Officer Brent Kinney, Guilford County
Sheriff's Office, was stationary in the Food Lion parking
lot at 7605 North NC Hwy 68 when he observed the petitioner
and a female walking to the connecting parking lot of a bar,
Stoke Ridge, between 9:30-9:40 [p.m.]. He noted the
petitioner had a dazed appearance and was unsure o his feet.
Officer Brent Kinney observed the petitioner enter the
driver's seat of a gold Audi, back out of the parking
space, and quickly accelerate to about 26 mph in the Food
Lion parking [lot].
Officer Brent Kinney got behind the petitioner until the
petitioner stopped in the parking lot. At that point Officer
Brent Kinney observed both doors open and the petitioner and
the female exit the vehicle.
Officer Brent Kinney lost sight of the vehicle when he exited
the parking lot. Then he got behind the vehicle when it
exited the parking lot.
Officer Brent Kinney observed the gold Audi cross the yellow
line twice and activated his blue lights and siren.
female was driving and Officer Brent Kinney determined she
was not impaired.
Officer Brent Kinney detected a strong odor of alcohol on the
petitioner, whom he saw driving in the PVA of Food Lion and
observed he had slurred speech, glassy eyes and was
petitioner put a piece of candy in his mouth even after
Officer Brent Kinney told him not to do so. He subsequently
removed the piece of candy when asked to do so.
Officer Brent Kinney asked the petitioner to submit to the
following tests: 1) Recite alphabet from E-U-Petitioner
recited E, F, G, H, I, J, K, L, M, N, O, P and stopped; and
2) Recite numbers backwards from 67-54-Petitioner recited 67,
66, 65, 4, 3, 2, 1, 59, 8, 7, 6, 5, 4, 3, 2, 1.
Officer Brent Kinney arrested the petitioner, charging him
with driving while impaired, and transported him to the
Guilford County jail control for testing.
Officer Brent Kinney, a currently certified chemical analyst
with the Guilford County Sheriff's Office, read orally
and provided a copy of the implied consent rights at 10:30
[p.m.] The petitioner refused to sign the rights form and did
not call an attorney or witness.
Officer Brent Kinney explained and demonstrated how to
provide a sufficient sample of air for the test.
Officer Brent Kinney requested the petitioner submit to the
test at 10:49 [p.m.] The petitioner did not take a deep
breath as instructed and faked blowing as the instrument gave
no tone and the ...