An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1091
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
BILLY ALSTON THOMPSON,
Petitioner-Appellee,
v. Halifax County
No. 12 CVS 231
EUGENE A. CONTI, JR., SECRETARY
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION,
Respondent-Appellant.
Appeal by Respondent from judgment entered 27 August 2012
and order entered 23 July 2013 by Judge Alma L. Hinton in
Superior Court, Halifax County. Heard in the Court of Appeals 4
February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Carrie D. Randa, for Respondent-Appellant.
Chichester Law Office, by Geoffrey P. Davis and Gilbert W.
Chichester, for Petitioner-Appellee.
McGEE, Judge.
Billy Alston Thompson (“Petitioner”) filed a complaint
against Eugene A. Conti, Jr., Secretary of North Carolina
Department of Transportation, (“Respondent”) on 28 February
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2012. Petitioner alleged that he was arrested and charged with
driving while impaired on or about 6 August 2011. Petitioner
further alleged that “Respondent notified Petitioner that his
driving privilege would be suspended effective August 26, 2011,
until August 26, 2012, for refusing a chemical test[.]”
Petitioner requested an administrative hearing before the
Division of Motor Vehicles (“DMV”), which was conducted on 2
February 2012. 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(e) (2013). The superior
court heard Petitioner’s petition on 21 August 2012 and reversed
the decision of the DMV. Respondent appeals and argues that the
superior court erred in reversing the decision of the DMV.
I. Standard of Review
“Questions 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.” Hoots v. Robertson,
214 N.C. App. 181, 183, 715 S.E.2d 199, 200 (2011). “The
superior court review shall be limited to 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
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committed an error of law in revoking the license.” Id.
II. Analysis
This appeal arises from a revocation proceeding under
N.C.G.S. § 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).1 N.C.G.S. § 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. Pursuant
to N.C. Gen. Stat. § 20-16.2(d) (2009), 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 driver[’]s
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 driver[’]s license;
(3) The implied-consent offense charged
involved death or critical injury to another
person, if this allegation is in the
affidavit;
(4) The person was notified of the person’s
1
Although this Court in Steinkrause analyzed the 2005 version of
N.C.G.S. § 20-16.2, and that statute has been amended four times
since 2005, the portions of the statute relevant to this appeal
remain unchanged.
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rights as required by subsection (a); and
(5) The person willfully refused to submit
to a chemical analysis.
N.C. Gen. Stat. § 20-16.2(d) (2009).2 Subsection (3) of the
above statute is inapplicable to the present case because death
or critical injury to another person was not alleged in the
affidavit.
The superior court in this case reversed the decision of
the DMV and concluded that: (1) “there is insufficient evidence
in the record to support Respondent’s findings of fact;”
(2) “Respondent’s conclusions of law are not therefore supported
by Respondent’s findings of fact;” and (3) “Respondent did
commit an error of law by revoking Petitioner’s license to
operate a motor vehicle pursuant to N.C.G.S. 20-16.2(d).”
Respondent contends that there was adequate evidence in the
record to support the findings of fact in the DMV decision. DMV
made the following findings in its order upholding the
revocation of Petitioner’s driving privilege:
1. Trooper Davis was on routine patrol when
he received a call from Communications to
respond to an accident on State Road 1003
[n]ear Scotland Neck North Carolina Halifax
2
Our General Assembly amended this statute in 2011. See 2011
N.C. Sess. Laws ch. 119 § 1. The amendment “applies to offenses
committed on or after” 1 December 2011. 2011 N.C. Sess. Laws
ch. 119 § 3. We apply the previous version of this statute
because the offense in the present case was committed on 6
August 2011.
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County.
2. Trooper Davis found a truck overturned
upon his arrival several people standing
around and EMS on the scene.
3. Trooper Davis spoke with [P]etitioner and
was advised he was driving the vehicle.
4. [P]etitioner was out of the vehicle and
did not have on a shirt or any shoes, and
his clothes were very soiled.
5. Trooper Davis also spoke with the
witnesses and EMS who advised him that []
Petitioner was the driver of the vehicle.
6. [P]etitioner refused to be transported to
the hospital.
7. Trooper Davis observed [P]etitioner had
red glassy eyes and a strong odor of alcohol
upon his breath and person.
8. [P]etitioner was very unsteady.
9. Trooper Davis asked [P]etitioner to
perform several Field Sobriety Tests and
[P]etitioner failed all tests.
10. Trooper Davis asked [P]etitioner what he
had to drink after smelling the strong odor
of alcohol on his breath and [P]etitioner
replied 1 drink and 1 mix drink.
11. Trooper Davis did not notice any
disabilities about the customer.
12. Trooper Davis received two breath
samples from the Alco Sensor which were
positive.
13. Trooper Davis arrested [P]etitioner and
transported him to the Halifax County
Sheriff’s Department and charged him with
DWI.
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14. The person was notified of his rights
both orally and in writing.
15. [P]etitioner did not sign the rights
form because he was handcuffed.
16. [P]etitioner had two witnesses present
the entire time.
17. [P]etitioner did not wish to call a
witness or an attorney.
18. [P]etitioner’s father tried to call an
attorney.
19. Trooper Davis set the Intox EC/IR II of
one time and [P]etitioner refused to submit
to any test after being told by his father
not to submit who was present the entire
time.
20. [P]etitioner was not present and did not
testify.
21. The two witnesses were not present for
this hearing.
Petitioner counters that the “evidence as presented in the
record is at variance with that of the exhibits and the order
and moreover, with the testimony actually elicited at the
hearing, that the [DMV’s] findings of fact” are “necessarily not
supported.”
The variance to which Petitioner refers is the name of the
law enforcement officer who testified at the administrative
hearing in this case. The DMV hearing transcript identifies a
“Trooper Tommy Davis” as a witness. However, an exhibit titled
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“Intox EC/IR-II: Subject Test” lists a “Davis, Tare L.” as the
analyst’s name. Petitioner alleges that a document titled
“Affidavit and Revocation Report” is signed by “Tare L Davis.”
We note that the document so titled in the record is illegible.
A. Evidence That Petitioner Was Charged With An Implied-Consent
Offense
As to the first requirement in N.C.G.S. § 20-16.2(d),
Respondent points to the following as sufficient evidence:
(1) testimony at the administrative hearing on 2 February 2012
that Petitioner was placed “under arrest for DWI[;]” and (2) a
law enforcement officer swore in an affidavit that Petitioner
was charged with an implied-consent offense. As noted above,
the affidavit in the record is illegible. However, the
testimony at the administrative hearing is sufficient evidence
that Petitioner was charged with an implied-consent offense.
Petitioner’s argument is based solely on the discrepancies as to
the spelling of a law enforcement officer’s name. However,
N.C.G.S. § 20-16.2(d) contains no requirement that a particular
law enforcement officer be named or a provision to the effect
that an inconsistent spelling as to the law enforcement
officer’s name compels reversal.
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B. Evidence That A Law Enforcement Officer Had Reasonable
Grounds To Believe Petitioner Had Committed An Implied-Consent
Offense
As to the second requirement, Respondent identifies the
following testimony at the administrative hearing: (1) that upon
arrival, an officer saw “a truck that was totally destroyed” on
“the right hand portion of the road between road and the
ditch[;]” (2) that Petitioner was the only individual in the
wrecked vehicle; (3) that Petitioner admitted “he had wrecked
his truck[;]” (4) that Petitioner was dirty and bloody and had
no shoes or shirt on; (5) there was a “strong odor of alcoholic
beverage coming from his breath and person[;]” (6) Petitioner’s
eyes were red and glassy; and (7) Petitioner failed several
field sobriety tests.
“[R]easonable grounds in a civil revocation hearing means
probable cause, and is to be determined based on the same
criteria.” Steinkrause, 201 N.C. App. at 293, 689 S.E.2d at
381. “[P]robable cause requires only a probability or
substantial chance of criminal activity, not an actual showing
of such activity.” Id. at 293, 689 S.E.2d at 381-82 (alteration
in original). “A determination of probable cause depends on the
totality of the circumstances.” Id. at 293, 689 S.E.2d at 381.
In Steinkrause, the petitioner was involved in a “severe
one car accident,” and there was an odor of alcohol about the
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petitioner. Id. at 293, 689 S.E.2d at 382. This Court held
that “the nature of [the] [p]etitioner’s car accident and the
smell of alcohol adequately support” the conclusion that the
petitioner was arrested based on reasonable grounds. Id. at
295, 689 S.E.2d at 383.
The record in the present case contains more evidence than
in Steinkrause to support the conclusion that reasonable grounds
existed to charge Petitioner with an implied-consent offense.
Again, as above, Petitioner’s argument is based solely on the
discrepancies between different pieces of evidence as to the
spelling of a law enforcement officer’s name. However, the
statute requires only that a law enforcement officer have
reasonable grounds to believe that the person had committed an
implied-consent offense. N.C.G.S. § 20-16.2(d)(2). The record
shows that a law enforcement officer had reasonable grounds to
believe Petitioner had committed an implied-consent offense.
C. Evidence That Petitioner Was Notified Of His Rights
As to the fourth requirement, Respondent points to evidence
that a law enforcement officer read Petitioner his implied-
consent rights and supplied him with a copy and that a “copy of
the rights form was also included in the record.” Discrepancies
as to the spelling of a law enforcement officer’s name have no
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bearing on whether Petitioner was notified of his rights. The
record shows that Petitioner was notified of his rights.
D. Evidence That Petitioner Willfully Refused To Submit To A
Chemical Analysis
As to the fifth requirement, Respondent highlights evidence
in the form of testimony at the hearing that Petitioner refused
to submit to a chemical analysis. The record shows that
Petitioner did willfully refuse to submit to such an analysis.
Petitioner does not argue to this Court that he did not
willfully refuse to submit.
III. Conclusion
In conclusion, Respondent has shown that evidence supports
each of the applicable requirements set forth in N.C.G.S. § 20-
16.2(d) for civil revocation of Petitioner’s driver’s license
when Petitioner has willfully refused to submit to a chemical
analysis. There is sufficient evidence in the record to support
the findings of fact by the DMV relevant to N.C.G.S. § 20-
16.2(d). Thus, the superior court erred in reversing the
decision of the DMV. As a result, the superior court’s order is
reversed, and this case is remanded for further proceedings
consistent with this opinion. Because of our holding on this
issue, we need not address Respondent’s remaining argument.
Reversed and remanded.
Judges STEELMAN and ERVIN concur.
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Report per Rule 30(e).