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Brackett v. Thomas

Supreme Court of North Carolina

June 8, 2018

WAYNE T. BRACKETT, JR., Petitioner
v.
KELLY J. THOMAS, Commissioner of the North Carolina Division of Motor Vehicles, Respondent

          Heard in the Supreme Court on 13 March 2018.

          On 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 County.

          Joel N. Oakley for petitioner-appellee.

          Joshua H. Stein, Attorney General, by Christopher W. Brooks, Special Deputy Attorney General, for respondent-appellant.

          MORGAN, JUSTICE.

         In this 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.

         On 13 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, [1] 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 this appeal:

         1. On 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.

         2. 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].

         3. 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.

         4. 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.

         5. Officer Brent Kinney observed the gold Audi cross the yellow line twice and activated his blue lights and siren.

         6. The female was driving and Officer Brent Kinney determined she was not impaired.

         7. 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 red-faced.

         8. The 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.

         9. 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.

         10. Officer Brent Kinney arrested the petitioner, charging him with driving while impaired, and transported him to the Guilford County jail control for testing.

         11. 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.

         12. Officer Brent Kinney explained and demonstrated how to provide a sufficient sample of air for the test.

         13. 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 ...


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