in the Court of Appeals 24 April 2019.
by respondent from order entered 25 May 2018 by Judge Jeffery
K. Carpenter in Superior Court, Union County No. 18 CVS 524.
J. Harrington for petitioner-appellee.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathryne E. Hathcock, for respondent-appellant.
Commissioner of the Division of Motor Vehicles appeals an
order vacating a decision of the Division of Motor Vehicles,
rescinding its previously imposed revocation and reinstating
petitioner's driving privilege. Because the affidavit and
amended affidavit both showed the arresting officer
designated a blood test but petitioner refused a breath test,
neither was a properly executed affidavit showing petitioner
willfully refused blood alcohol testing under North Carolina
General Statute § 20-16.2. The trial court correctly
concluded DMV did not have jurisdiction to revoke
petitioner's license upon receipt of the affidavits, so
July 2017, petitioner was charged with driving while impaired
and allegedly refused to submit to a chemical analysis.
Deputy Justin Griffin of the Union County Sheriff's
Office, the law enforcement officer, filed an "Affidavit
and Revocation Report of Law Enforcement Officer" form
(DHHS 3907) ("Affidavit"). The Affidavit noted
Deputy Griffin requested petitioner submit to a blood
analysis and had specifically marked out the word
"breath" for the type of chemical analysis
designated. Attached and incorporated into the affidavit was
the "Rights of Person Requested to Submit to a Chemical
Analysis to Determine Alcohol Concentration or Presence of an
Impairing Substance Under N.C. G.S. §20-16.2(a)"
form (DHHS 4081) ("Rights Form"), which noted
"Breath" as the type of analysis refused by
November 2017, Deputy Griffin amended both the Affidavit and
Rights Form. The amended Affidavit now noted that Deputy
Griffin was both the law enforcement officer and chemical
analyst but again he marked out the word
"breath" and circled blood as the type of
analysis designated. The amended Rights Form still reflected
"Breath" as the type of analysis refused.
was notified that his driving privilege would be suspended in
December of 2017 for his refusal to submit to a chemical
test. Petitioner requested a hearing on the matter, and in
February of 2018 the Division of Motor Vehicles
("DMV") decided "petitioner's refusal to
submit to a chemical analysis is sustained."
Petitioner's driving privilege was suspended effective 18
March 2018, petitioner filed a petition for a hearing in the
trial court regarding his suspended driving privilege. The
trial court found "the Division seeks to revoke the
Petitioner's driving privilege for willfully refusing a
chemical analysis (specifically a breath analysis) that the
Petitioner was not requested to submit to" because the
Affidavits indicate "Petitioner was requested to submit
to a blood analysis and only a blood analysis[.]"
Relying on Lee v. Gore, 365 N.C. 227, 717 S.E.2d 356
(2011), the trial court determined the DMV did not have the
authority to revoke defendant's privilege because
"the affidavits signed on July 7, 2017 and on November
9, 2017 are not 'properly executed affidavits' to
give rise to a revocation of the Petitioner's driving
privilege for failing to submit to a chemical analysis of his
breath." The trial court vacated the prior decision of
the DMV, revoked the DMV's previously imposed revocation,
and reinstated petitioner's driving privilege. Respondent
Properly Executed Affidavit
contends that its "receipt of a properly executed
affidavit under N.C. Gen. Stat. § 20-16.2(d) provided
the requisite jurisdiction for respondent to revoke
petitioner's license under N.C. Gen. Stat. §
20-16.2." (Original in all caps.)
[O]n appeal from a DMV hearing, the superior court sits as an
appellate court, and no longer sits as the trier of fact.
Accordingly, our review of the decision of the superior court
is to be conducted as in other cases where the superior court
sits as an appellate court. Under this standard we conduct
the following inquiry: (1) determining whether the trial
court exercised the appropriate scope of review and, if
appropriate, (2) deciding whether the court did so properly.
. . . . We hold that these cases provide the appropriate
standard of review for this Court under the amended
provisions of N.C. Gen. Stat. § 20-16.2.
Johnson v. Robertson, 227 N.C.App. 281, 286-87, 742
S.E.2d 603, 607 (2013) (citations and quotation marks
omitted). Furthermore, "[q]uestions of statutory
interpretation of a provision of the Motor Vehicle Laws of
North Carolina are questions of law and are reviewed de
novo by this Court." Id. at 283, 742
S.E.2d at 605 (citation and quotation marks omitted).
contends that it had authority to revoke petitioner's
license upon receipt of the Affidavit because the Affidavit
"contained all requisite jurisdictional elements - boxes
1, 4, 7 and 14." As Lee emphasizes, respondent
must receive "a properly executed affidavit meeting all
of the requirements set forth in N.C. Gen. Stat. §
20-16.2(c1) before the DMV is authorized to revoked a
person's driving privileges." 365 N.C. at 233, 717
S.E.2d at 360-61 (quotation marks omitted). Specifically,
Respondent argues the affidavit must allege that:
(1) The person was charged with an implied-consent offense or
had an alcohol concentration restriction on the driver's
license[, Box 4 of the Affidavit];
(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 driver's license[, Box 1 of the Affidavit];
. . . .
(5) The results of any tests given or that the person
willfully refused to submit to a chemical analysis[,
Box 14 of the Affidavit].
N.C. Gen. Stat. § 20-16.2(c1) (2017) (emphasis added).
In other words, respondent contends box 9 of the form is
"immaterial" to its jurisdiction to revoke but
acknowledges that box 14 is essential. The problem here is
that box 14 conflicts with box 9 on this Affidavit and the
Affidavit on its face did not establish jurisdiction.
See generally Lee, 365 N.C. at 233, 717
S.E.2d at 360-61. Respondent relies upon Lee for its
argument that the Affidavit was sufficient to confer
jurisdiction for revocation, but Respondent overlooks the
factual differences between Lee and this case as
well as the additional statutory requirement relevant to this
case. See generally N.C. Gen. Stat. § 16.2;
Lee, 365 N.C. 227, 717 S.E.2d 356.
Lee, the Supreme Court considered a case where a
police officer stopped a driver for speeding and the officer
believed the driver was driving while impaired. Id.
at 228, 717 S.E.2d at 357. The officer took the driver to an
intake center to "undergo chemical analysis by way of an
Intoxilyzer test." Id. The officer told the
driver "several times that his failure to take the
Intoxilyzer test would be regarded as a refusal to take the
test" and would "result in revocation of
petitioner's North Carolina driving privileges."
Id. The driver still refused to take the test, and