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Couick v. Jessup

Court of Appeals of North Carolina

August 6, 2019

ROY EUGENE COUICK, Petitioner
v.
TORRE JESSUP, COMMISSIONER OF THE DIVISION OF MOTOR VEHICLES, STATE OF NORTH CAROLINA, Respondent.

          Heard in the Court of Appeals 24 April 2019.

          Appeal by respondent from order entered 25 May 2018 by Judge Jeffery K. Carpenter in Superior Court, Union County No. 18 CVS 524.

          James J. Harrington for petitioner-appellee.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for respondent-appellant.

          STROUD, JUDGE.

         Respondent 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 we affirm.

         I. Background

         On 7 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 petitioner.

         On 14 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.

         Petitioner 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 February 2018.

         On 2 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 appeals.

         II. Properly Executed Affidavit

         Respondent 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).

         Respondent 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.

         In 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 the ...


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