An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-519
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
IN THE MATTER OF:
DRIVING PRIVILEGE OF Lincoln County
JASON GREGORY COTTRELL No. 13 CVS 25
Appeal by petitioner from order entered 24 February 2014 by
Judge Timothy Kincaid in Lincoln County Superior Court. Heard
in the Court of Appeals 25 August 2014.
David M. Black, for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for respondent-appellee.
CALABRIA, Judge.
Jason Gregory Cottrell (“Cottrell”) appeals from an order
affirming the decision of the North Carolina Department of Motor
Vehicles (“DMV”) to revoke his driver’s license. We affirm.
On 30 December 2011, an off-duty law enforcement officer
called 911 and reported a car driving erratically on N.C.
Highway 73. The off-duty officer followed the car until it
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drove into the driveway of a house. Subsequently, Deputy Milton
of the Lincoln County Sheriff’s Department (“Deputy Milton”)
arrived at the house, where he encountered Cottrell. Deputy
Milton noticed Cottrell’s slurred speech and detected a strong
odor of alcohol coming from Cottrell. Trooper Christopher Casey
(“Trooper Casey”) of the North Carolina State Highway Patrol
also responded. Trooper Casey observed that Cottrell had
bloodshot eyes and slurred speech. In addition, Cottrell was
swaying and rocking back and forth. Cottrell responded to
Trooper Casey’s questions and corroborated the information the
off-duty officer reported. Cottrell stated that he drove home
from a location that coincided with the route along which the
reporting off-duty officer had observed the erratic driving, and
that he had not consumed any alcohol since arriving home.
Cottrell refused to perform any standardized field sobriety
tests or to provide a sample of his breath. Trooper Casey then
arrested Cottrell for Driving While Intoxicated (“DWI”), read
him his rights pertaining to the Intoxilyzer test, and gave him
thirty-five minutes to call a witness. No witnesses responded,
and Trooper Casey then asked Cottrell to breathe into the
Intoxilyzer. Cottrell refused to do so.
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The DMV subsequently notified Cottrell that due to his
refusal to cooperate with a chemical analysis of his breath, an
implied consent offense, his license would be suspended for one
year pursuant to N.C. Gen. Stat. § 20-16.2 (2013). Cottrell
requested and attended a DMV administrative hearing on 17
December 2012 to challenge the civil suspension. During that
time Cottrell’s driver’s license suspension was placed on hold.
Cottrell did not testify or present any evidence at the hearing.
The hearing officer issued a decision on 21 December 2012,
sustaining the revocation of Cottrell’s driving privilege. The
hearing officer made numerous findings of fact, including that
Trooper Casey had reasonable grounds to believe that an implied
consent offense had been committed, and concluded that “all
elements of proof necessary to rescind a revocation for refusing
to submit to a chemical analyst [sic] of his breath under GS 20-
16.2 are supported by substantial evidence.”
On 8 January 2013, Cottrell filed a petition for judicial
review of the administrative decision and sought a temporary
restraining order against the DMV in Lincoln County Superior
Court. The superior court granted the restraining order, and
held a hearing in which it reviewed the record and transcript
from the administrative hearing and heard arguments from both
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parties. The superior court affirmed the administrative
decision, sustained the suspension of Cottrell’s driver’s
license, and dissolved the temporary restraining order against
the DMV. Cottrell filed timely notice of appeal from the
superior court’s order and obtained a stay from the superior
court pending the resolution of this appeal.
Cottrell argues that the superior court erred in affirming
the DMV’s decision because the DMV’s findings of fact and
conclusions of law were not supported by competent evidence.
As an initial matter, we address the issue of the proper
standard of review applied in this appeal. Cottrell contends
that this Court reviews the superior court’s order to determine
whether the court’s findings of fact are supported by any
competent evidence, but reviewing de novo whether the court’s
conclusions of law are supported by its findings of fact.
Steinkrause v. Tatum, 201 N.C. App. 289, 291-92, 689 S.E.2d 379,
381 (2009), aff’d per curiam, 364 N.C. 419, 700 S.E.2d 222
(2010). However, Steinkrause appealed from an order entered
affirming the revocation of her driver’s license as a result of
her September 2006 DWI. Id. at 290, 689 S.E.2d at 380.
Effective 1 December 2006, the General Assembly amended
N.C. Gen. Stat. § 20-16.2(e) to change the superior court’s
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standard of review of DMV decisions in license revocation
proceedings. See 2006 N.C. Sess. Laws 253; N.C. Gen. Stat. §
20–16.2(e) (2013). The current version of the statute provides
that “[t]he 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 committed an error of law in revoking the license.”
N.C. Gen. Stat. § 20–16.2(e) (2013). This Court has held that
on appeal from a DMV hearing, the superior court sits as an
appellate court, and no longer sits as the trier of fact.
Johnson v. Robertson, ___ N.C. App. ___ , ___, 742 S.E.2d 603,
607 (2013). On appeal from a DMV hearing, this Court reviews
the decision of the superior court under 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.” Id. (citation and internal
quotations omitted). Therefore, this Court will consider
whether the superior court exercised the appropriate scope of
review, and, if appropriate, whether the court did so properly.
Id.
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In the instant case, the record indicates that the superior
court reviewed the record and the transcript of the DMV’s
administrative hearing and heard arguments from both parties.
In its order affirming the administrative decision, the court
specifically found:
applying the review afforded by N.C.G.S. §
20-16.2(e), there is sufficient evidence in
the record to support the Findings of Fact
of the Division’s decision; that the
Conclusions of Law of the Division’s
decision are supported by the Findings of
Fact; and that the Division did not commit
an error of law in revoking the Petitioner’s
license to drive a motor vehicle.
The superior court’s order affirming the DMV’s decision cites
N.C. Gen. Stat. § 20-16.2(e) and states the proper standard,
indicating that it did not conduct a de novo review of the
facts. Instead, the court reviewed the record to determine
whether there was sufficient evidence to support the DMV’s
findings of fact.
After reviewing the record, we conclude that the superior
court correctly determined that there was sufficient evidence in
the record to support the DMV’s findings of fact, and the
conclusions of law are supported by the findings. Therefore,
the superior court exercised the appropriate scope of review and
properly applied it to review the DMV’s administrative decision.
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Accordingly, we affirm the superior court’s order revoking
petitioner’s driver’s license.
Affirmed.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).