Powell v. Bost

HEDRICK, Judge.

Respondent contends the trial court failed to make sufficient findings of fact to support its conclusion that the Commissioner was not authorized under the circumstances of this case to suspend Bost’s driving privileges for six months pursuant to the provisions of G.S. 20-16.2.

In an action tried without a jury it is the duty of the trial judge to find the facts specially, state separately its conclusions of law, and enter the appropriate judgment. G.S. 1A-1, Rule 52(a) (1). The judge must make findings of fact determinative of the issues raised by the pleadings and the evidence. Conrad v. Jones, 31 N.C. App. 75, 228 S.E. 2d 618 (1976).

In Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E. 2d 553 (1971), Justice (now Chief Justice) Sharp set forth the provisions of G.S. 20-16.2 and 20-25 and then wrote:

“From the foregoing statutes it is clear that any person whose driver’s license has been suspended by the Department of Motor Vehicles under the provisions of G.S. 20-16.2 (d) has the right to a ‘full de novo review by a Superior Court judge.’ . . . This means the Court must hear the matter ‘on its merits from beginning to end as if no trial or hearing had been held’ by the Department and without any presumption in favor of its decision. . . No discretionary power is conferred upon the court in matters pertaining to the revocation of licenses. If, under the facts found by the judge, the statute requires the suspension or revocation of petitioner’s license ‘the order of the department entered in conformity with the facts found must be affirmed.’ ” (Citations omitted.) Id. at 232, 182 S.E. 2d at 558.

In the present case in the trial de novo in the superior court, it was the duty of the judge to make findings of fact determinative of the following issues: whether the officer had reasonable grounds to believe Bost had been driving or operating a motor vehicle upon a highway or public vehicular area while under the influence of intoxicating liquor; whether Bost was placed under arrest for driving under the influence of intoxicating liquor; and whether Bost willfully refused to submit to the breathalyzer test after being informed of his rights. G.S. 20-16.2 (d).

*295Under that portion of the judgment labeled “Findings of Fact” the court merely narrated the testimony of Officers Lowe and Deaton. The court made no findings of fact determinative of the critical issues enumerated in G.S. 20-16.2 (d). The conclusions drawn by the trial judge are not supported by appropriate findings of fact.

For the reasons stated the order appealed from is vacated and the proceedings is remanded to the superior court for a new trial.

Reversed and remanded.

Judges Vaughn and Clark concur.