Brackett v. Thomas , 371 N.C. 121 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 146PA17
Filed 8 June 2018
WAYNE T. BRACKETT, JR.,
Petitioner
v.
KELLY J. THOMAS, Commissioner of the North Carolina Division of Motor
Vehicles,
Respondent
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 778 (2017), affirming an order
signed on 14 June 2016 by Judge Susan E. Bray in Superior Court, Guilford County.
Heard in the Supreme Court on 13 March 2018.
Joel N. Oakley for petitioner-appellee.
Joshua H. Stein, Attorney General, by Christopher W. Brooks, Special Deputy
Attorney General, for respondent-appellant.
MORGAN, Justice.
In this matter, we reaffirm the well-established standard of review when a
court reviews a final agency decision by the North Carolina Division of Motor Vehicles
(DMV) to revoke a driver’s license for willful refusal to submit to a chemical analysis.
In determining that the DMV erred in concluding that such a willful refusal had
occurred, the Court of Appeals here overstepped its role by making witness credibility
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Opinion of the Court
determinations and resolving contradictions in the evidence presented during the
DMV’s administrative hearing concerning the license revocation. Utilizing the proper
standard of review, we conclude that the unchallenged findings of fact made by the
DMV support the only disputed legal conclusion, thus requiring us to uphold the
DMV’s decision to revoke the driving privileges at issue. Accordingly, we reverse the
decision of the Court of Appeals in this matter.
On 13 August 2015, petitioner Wayne T. Brackett, Jr. was arrested in Guilford
County and charged with the offense of driving while impaired. Thereafter,
respondent Kelly J. Thomas, Commissioner of the DMV, notified petitioner that,
effective 20 September 2015, petitioner’s driving privileges would be suspended and
revoked based on petitioner’s refusal to submit to a chemical analysis. In response,
petitioner requested an administrative hearing before the DMV pursuant to the
Uniform Driver’s License Act. See N.C.G.S. § 20-16.2(d) (2017). That hearing was
conducted on 7 January 2016, after which the DMV hearing officer upheld the
revocation of petitioner’s driving privileges, making numerous findings of fact and
conclusions of law in his written decision. Petitioner has never challenged the
hearing officer’s findings of fact,1 which are therefore binding on each reviewing court.
See e.g., Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962) (“Where
1 In his 19 January 2016 petition for judicial review of the DMV’s final agency decision
in the superior court, petitioner challenged only “the conclusion of the [DMV] that [he]
willfully and unlawfully refused to submit to a chemical test.”
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Opinion of the Court
no exceptions have been taken to the findings of fact, such findings are presumed to
be supported by competent evidence and are binding on appeal.” (citations omitted));
see also Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These
findings therefore provide the factual record of the events underlying this appeal:
1. On August 13, 2015, Officer Brent Kinney, Guilford County
Sheriff’s Office, was stationary in the Food Lion parking lot
at 7605 North NC Hwy 68 when he observed the petitioner
and a female walking to the connecting parking lot of a bar,
Stoke Ridge, between 9:30-9:40 [p.m.]. He noted the
petitioner had a dazed appearance and was unsure on his
feet.
2. Officer Brent Kinney observed the petitioner enter the
driver’s seat of a gold Audi, back out of the parking space,
and quickly accelerate to about 26 mph in the Food Lion
parking [lot].
3. Officer Brent Kinney got behind the petitioner until the
petitioner stopped in the parking lot. At that point Officer
Brent Kinney observed both doors open and the petitioner
and the female exit the vehicle.
4. Officer Brent Kinney lost sight of the vehicle when he
exited the parking lot. Then he got behind the vehicle
when it exited the parking lot.
5. Officer Brent Kinney observed the gold Audi cross the
yellow line twice and activated his blue lights and siren.
6. The female was driving and Officer Brent Kinney
determined she was not impaired.
7. Officer Brent Kinney detected a strong odor of alcohol on
the petitioner, whom he saw driving in the PVA of Food
Lion and observed he had slurred speech, glassy eyes and
was red-faced.
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Opinion of the Court
8. The petitioner put a piece of candy in his mouth even after
Officer Brent Kinney told him not to do so. He subsequently
removed the piece of candy when asked to do so.
9. Officer Brent Kinney asked the petitioner to submit to the
following tests: 1) Recite alphabet from E-U—Petitioner
recited E, F, G, H, I, J, K, L, M, N, O, P and stopped; and
2) Recite numbers backwards from 67-54—Petitioner
recited 67, 66, 65, 4, 3, 2, 1, 59, 8, 7, 6, 5, 4, 3, 2, 1.
10. Officer Brent Kinney arrested the petitioner, charging him
with driving while impaired, and transported him to the
Guilford County jail control for testing.
11. Officer Brent Kinney, a currently certified chemical
analyst with the Guilford County Sheriff’s Office, read
orally and provided a copy of the implied consent rights at
10:30 [p.m.] The petitioner refused to sign the rights form
and did not call an attorney or witness.
12. Officer Brent Kinney explained and demonstrated how to
provide a sufficient sample of air for the test.
13. Officer Brent Kinney requested the petitioner submit to
the test at 10:49 [p.m.] The petitioner did not take a deep
breath as instructed and faked blowing as the instrument
gave no tone and the [gauge] did not move, indicating no
air was being introduced.
14. Officer Brent Kinney warned the petitioner that he must
blow as instructed or it would be determined he was
refusing the test and explained again how to provide a
sufficient sample.
15. The petitioner made a second attempt to submit to the test.
This time he did take a breath but then gave a strong puff
and then stopped; and then gave a second strong puff and
stopped.
16. The petitioner’s second attempt concluded at 10:50 [p.m.]
at which time Officer Brent Kinney determined he was
refusing the test by failing to follow his instructions and
marked the refusal at that time.
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17. The petitioner’s second attempt resulted in a detection of
mouth alcohol. With that, Officer Brent Kinney had to
reset the instrument, not to provide another opportunity
for the petitioner to take the test, but to enter the refusal
into the instrument.
18. In spite of the test ticket recording the refusal at 10:56
[p.m.], the DHHS 4081 indicates the refusal was actually
at 10:50 [p.m.]
19. The doctor’s note indicates the petitioner’s asthma appears
to be stabilized with medication and anxiety disorder is
managed by Xanax.
Based upon these findings of fact, the hearing officer made the following conclusions
of law and upheld the revocation of petitioner’s driver’s license:
1. [Petitioner] was charged with an implied-consent offense.
2. Officer Brent Kinney had reasonable grounds to believe
that [petitioner] had committed an implied-consent
offense.
3. The implied-consent offense charged involved no death or
critical injury to another person.
4. [Petitioner] was notified of his rights as required by
N.C.G.S. 20-16.2(a).
5. [Petitioner] willfully refused to submit to a chemical
analysis.
See N.C.G.S. § 20-16.2(d) (providing that the hearing before the DMV “shall be limited
to consideration of” five matters: whether a driver was charged with an implied-
consent offense, whether a law enforcement officer had reasonable grounds to believe
the driver committed an implied-consent offense, whether the implied-consent
offense charged involved death or critical injury to another person, whether the driver
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was notified of his rights, and whether the driver “willfully refused to submit to a
chemical analysis”).
On 19 January 2016, petitioner filed a petition for judicial review in the
Superior Court, Guilford County, challenging the hearing officer’s final conclusion of
law: that petitioner had willfully refused to submit to a chemical analysis. See id. §
20-16.2(e) (2017) (providing that a “person whose license has been revoked has the
right to file a petition [for judicial review] in the superior court”). The superior court
heard the matter on 6 June 2016, ultimately reversing the DMV hearing officer’s
decision because “[t]he record does not support the conclusion under N.C.G.S. § 20-
16.2(d)(5). Therefore, the [DMV] Hearing Officer should not have found that the
petitioner willfully refused to submit to a chemical analysis of his breath.”
The Commissioner appealed that decision to the Court of Appeals, arguing that
the superior court failed to conduct the type of review mandated by statute, see id. §
20-16.2(e) (“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”), that sufficient
evidence in the record supports the hearing officer’s findings of fact, and that those
findings of fact in turn support the hearing officer’s conclusion of law that petitioner
willfully refused to submit to a chemical analysis test. The Court of Appeals agreed
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Opinion of the Court
that the superior court did not employ the correct standard of review and did “not
explain which of the agency’s fact findings were unsupported.” Brackett v. Thomas,
___ N.C. App. ___, ___, 798 S.E.2d 778, 781 (2017).
Citing this Court’s per curiam opinion in Capital Outdoor, Inc. v. Guilford Cty.
Bd. of Adjustment, 355 N.C. 269, 559 S.E.2d 547 (2002), in which this Court reversed
the decision of the Court of Appeals for the reasons stated in the dissenting opinion,
including that “an appellate court’s obligation to review a superior court order for
errors of law . . . can be accomplished by addressing the dispositive issue(s) before the
agency and the superior court without examining the scope of review utilized by the
superior court,” 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J.,
dissenting) (internal citation omitted), the Court of Appeals stated it would “consider
the issue under the applicable statutory standard of review, without remanding the
case to the superior court.” Brackett, ___ N.C. App. at ___, 798 S.E.2d at 781. But,
the Court of Appeals then utilized the same flawed analysis that it identified in the
superior court’s review, namely: considering whether the evidence in the record
supported the hearing officer’s conclusion of law that petitioner willfully refused a
chemical analysis,2 rather than determining whether the uncontested findings of fact
2 Petitioner may have contributed to the confusion experienced by the reviewing courts
in this matter by suggesting in his original petition for judicial review in the superior court
that the willful refusal “conclusion is not sustained by the evidence presented.” Petitioner
has continued to make this argument in his briefs to the Court of Appeals and this Court.
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Opinion of the Court
supported the hearing officer’s legal conclusion that petitioner willfully refused a
chemical analysis.3
The General Assembly has explicitly directed that for a driver’s license
revocation based upon a person’s refusal to submit to a chemical analysis, “[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.G.S. § 20-16.2(e). Factual findings that
are supported by evidence are conclusive, “even though the evidence might sustain
findings to the contrary.” Seders v. Powell, 298 N.C. 453, 460-61, 259 S.E.2d 544, 549
(1979) (citations omitted). It is the role of the agency, rather than a reviewing court,
“to determine the weight and sufficiency of the evidence and the credibility of the
witnesses, to draw inferences from the facts, and to appraise conflicting and
circumstantial evidence.” State ex rel. Comm’r of Ins. v. N.C. Rate Bureau, 300 N.C.
3 Although not directly pertinent to the matter before this Court, we observe that the
Court of Appeals also erred in undertaking an analysis of the hearing officer’s first four
conclusions of law—whether petitioner was charged with an implied-consent offense,
whether Officer Kinney had reasonable grounds to believe petitioner had committed an
implied-consent offense, whether the implied-consent offense charged involved death or
critical injury, and whether petitioner was notified of his rights—even though, in seeking
judicial review in the superior court, petitioner challenged only the conclusion that he
willfully refused chemical analysis. Further, in that analysis, the Court of Appeals stated
that it considered whether “substantial” evidence supported the hearing officer’s factual
findings, rather than the proper standard under N.C.G.S. § 20-16.2(e) of whether “sufficient”
evidence in the record supports challenged findings of fact. See Brackett, ___ N.C. App. at
___, 798 S.E.2d at 781.
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381, 406, 269 S.E.2d 547, 565 (1980) (citations omitted); see also Watkins v. N.C. State
Bd. of Dental Exam’rs, 358 N.C. 190, 202, 593 S.E.2d 764, 771 (2004). In the present
case, the Court of Appeals engaged in the prohibited exercises of reweighing evidence
and making witness credibility determinations, essentially making its own findings
of fact in several areas where evidence presented to the hearing officer was
conflicting.
As previously noted, unchallenged findings of fact are binding on appeal;
therefore, the only question for the Court of Appeals was whether the hearing officer’s
findings of fact supported the legal conclusion that petitioner willfully refused
chemical analysis. As the court acknowledged in its opinion,
Officer Kinney testified that: (1) he instructed Petitioner
on how to provide a valid sample of breath for testing; (2)
Petitioner failed to follow the officer’s instructions on the
first Intoximeter test, as the pressure gauge on the
instrument did not indicate that air was being breathed by
Petitioner; (3) Officer Kinney provided Petitioner a second
opportunity to provide an air sample; and (4) contrary to
Officer Kinney’s instructions, Petitioner finished blowing
before being told to stop and then followed up with another
puff of air.
Petitioner urges us to affirm the superior court’s
decision and asserts the admitted evidence in the record
shows: (1) the results of Petitioner’s second Intoximeter
test registered “mouth alcohol;” (2) the operating manual
and procedures for the EC/IR II Intoximeter requires that
if the machine detects “mouth alcohol,” then a subsequent
test should be administered after a 15-minute observation
period; (3) Petitioner testified that he blew as long and
hard as he could into the Intoximeter; (4) Petitioner
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testified he told the arresting officer before being
administered the Intoximeter that he suffered from
asthma.
Brackett, ___ N.C. App. at ___, 798 S.E.2d at 783. With these observations, the Court
of Appeals recognized that petitioner had asked that court and the superior court to
(1) make witness credibility determinations about Officer Kinney and petitioner
concerning their conflicting accounts whether petitioner followed the officer’s
direction to blow without stopping in order to give a valid breath sample, (2) evaluate
evidence from the operating manual and procedures for the EC/IR II Intoximeter
about which the hearing officer made no findings, and (3) weigh those factual
determinations to decide whether they support a legal conclusion of willful refusal by
petitioner to submit to a chemical analysis. The court’s opinion then states:
Here, the findings of fact show and it is undisputed
that when Petitioner blew a second time, the Intoximeter
registered “mouth alcohol” as the result of the sample. The
arresting officer asserted Petitioner failed to follow
instructions by blowing insufficiently into the machine and
he marked it as a willful refusal. Rather than indicating
Petitioner blew insufficiently to provide a sample on his
second attempt, Petitioner provided an adequate sample for
the Intoximeter to read and register “mouth alcohol”. The
arresting officer’s testimony that Petitioner blew
insufficiently is directly contradicted by the Intoximeter’s
registering a sample with a “mouth alcohol” test result.
Respondent did not produce any evidence to
demonstrate the EC/IR II Intoximeter will produce a
“mouth alcohol” reading if the test subject fails to submit a
sufficient sample. The undisputed evidence shows the
EC/IR II Intoximeter registered “mouth alcohol” and did
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not indicate an inadequate sample or refusal from
Petitioner’s failure to blow sufficiently.
Officer Kinney’s testimony asserting Petitioner
willfully refused is contradicted by the machine’s
acceptance of Petitioner’s sample. The indicated procedure
to follow from this result of “mouth alcohol” is for a
subsequent EC/IR II Intoximeter test to be administered
after a 15-minute observation period elapses. This
procedure was not followed here. The DMV Hearing
Officer’s conclusion that “[Petitioner] willfully refused to
submit to a chemical analysis” is not supported by the
record evidence or the findings.
Id. at ___, 798 S.E.2d at 784 (emphases added).
Thus, instead of rejecting petitioner’s request to invade the province of the fact-
finder in this case—the hearing officer—and correctly focusing solely on whether the
unchallenged findings of fact support the conclusion of law of a willful refusal, the
Court of Appeals first impermissibly reviewed the record evidence to make new
factual determinations about, inter alia, the meaning of a “mouth alcohol” reading on
the Intoximeter, the adequacy of a breath sample, and the procedures to be followed
when a “mouth alcohol” reading is produced. Thereupon, the appellate court
improperly determined the weight that such a reading should be given in determining
whether an adequate breath sample has been produced and resolved contradictions
in the evidence regarding whether petitioner followed Officer Kinney’s directions.
These unnecessary and superfluous steps by the Court of Appeals constitute error.
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To properly review the hearing officer’s determination of a willful refusal to
submit to a chemical analysis test by petitioner, we must determine whether that
conclusion of law is supported by the following findings of fact pertinent to that issue:
12. Officer Brent Kinney explained and demonstrated how to
provide a sufficient sample of air for the test.
13. Officer Brent Kinney requested the petitioner submit to
the test at 10:49 [p.m.] The petitioner did not take a deep
breath as instructed and faked blowing as the instrument
gave no tone and the [gauge] did not move, indicating no
air was being introduced.
14. Officer Brent Kinney warned the petitioner that he must
blow as instructed or it would be determined he was
refusing the test and explained again how to provide a
sufficient sample.
15. The petitioner made a second attempt to submit to the test.
This time he did take a breath but then gave a strong puff
and then stopped; and then gave a second strong puff and
stopped.
16. The petitioner’s second attempt concluded at 10:50 [p.m.]
at which time Officer Brent Kinney determined he was
refusing the test by failing to follow his instructions and
marked the refusal at that time.
17. The petitioner’s second attempt resulted in a detection of
mouth alcohol. With that, Officer Brent Kinney had to
reset the instrument, not to provide another opportunity
for the petitioner to take the test, but to enter the refusal
into the instrument.
18. In spite of the test ticket recording the refusal at 10:56
[p.m.], the DHHS 4081 indicates the refusal was actually
at 10:50 [p.m.]
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19. The doctor’s note indicates the petitioner’s asthma appears
to be stabilized with medication and anxiety disorder is
managed by Xanax.
These factual findings indicate that petitioner was instructed on how to provide a
sufficient breath sample, did not follow the instructions on the first blow, was warned
that failing to follow the instructions on providing a sufficient breath sample would
constitute a refusal, was re-instructed on providing a sufficient breath sample, failed
again to follow the instructions during the second blow, was then recorded as refusing
to submit to a chemical analysis on the basis of his failure to follow instructions, had
a breathing condition that his doctor indicated was “stabilized with medication,” and
was ultimately marked as willfully refusing to submit to a chemical analysis based
upon his failure to follow Officer Kinney’s repeated instructions despite being
warned. Based on these unchallenged facts, we hold that the repeated failure to
follow the chemical analyst’s instructions on how to provide a sufficient breath
sample, after being warned that a refusal to comply would be recorded if such failure
continues, constitutes willful refusal to submit to a chemical analysis.
Section 20-16.2 has consistently included the phrase “willful refusal” to submit
to a chemical analysis as a basis for revocation of one’s driving privileges over the
course of its original enactment and numerous amendments spanning more than five
decades. This Court has held that, as provided in N.C.G.S. § 20-16.2, “refusal is
defined as ‘the declination of a request or demand, or the omission to comply with
some requirement of law, as the result of a positive intention to disobey.’ ” Joyner v.
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Garrett, 279 N.C. 226, 233, 182 S.E.2d 553, 558 (1971) (quoting refusal, Black’s Law
Dictionary (4th ed. 1951)). For such a refusal to be willful, the driver’s actions must
reflect “a conscious choice purposefully made.” Seders, 298 N.C. at 461, 259 S.E.2d
at 550; see also Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980) (citing
Seders for the same proposition). Our discussion of the driver’s willful refusal in
Seders is illustrative of the enunciated principle.
In Seders the driver was informed of his right to consult an attorney but was
also warned that, in any event, testing could be delayed for no longer than thirty
minutes. 298 N.C. at 461, 259 S.E.2d at 549; see N.C.G.S. § 20-16.2(a)(6) (2017)
(stating that a driver must be informed of his right to “call an attorney for advice . . . ,
but the testing may not be delayed for [this] purpose[ ] longer than 30 minutes from
the time you are notified of these rights. You must take the test at the end of 30
minutes even if you have not contacted an attorney . . . .”). The chemical analyst in
Seders, who was also a North Carolina state trooper,
warned [the driver] on three occasions that his time was
running out and told [the driver] how many minutes he had
remaining. The trooper also stated that he told [the driver]
that the test could not be delayed for more than 30 minutes
and that if [the driver] did not take the test within that
time it would be noted as a refusal.
Id. at 461, 259 S.E.2d at 549. This Court observed that the driver “was told the
consequences of his failure to submit to the test within the 30 minute time limitation
yet still elected to run the risk of awaiting his attorney’s call,” and held that the
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driver’s “action constituted a conscious choice purposefully made and his omission to
comply with this requirement of our motor vehicle law amounts to a willful refusal.”
Id. at 461, 259 S.E.2d at 549 (emphasis added) (citations omitted).
Both the driver in Seders and petitioner in the instant case were instructed
repeatedly about the process of submitting to a valid chemical analysis. In Seders,
the instruction at issue was the requirement that the chemical analysis test be
implemented no longer than thirty minutes from the time that a vehicle operator is
informed of his or her rights to consult an attorney regarding the test. In the case at
bar, the instruction at issue is the proper method by which to provide a breath sample
sufficient for a chemical analysis. Both the driver in Seders and petitioner here were
warned that continued failure to comply with instructions repeatedly given by law
enforcement officers would result in a determination of a willful refusal to submit to
a chemical analysis. Despite these warnings, both the driver in Seders and petitioner
here remained noncompliant with the pertinent instructions, “action[s] constitut[ing]
a conscious choice purposefully made” not to submit to chemical testing. See id. at
461, 259 S.E.2d at 550. Petitioner here was instructed about how to produce a
sufficient breath sample, but he instead chose to give an initial “faked” blow and then
a “puff-stop-puff-stop,” both of which were insufficient for analysis. A motor vehicle
operator who intentionally and repeatedly fails to follow the instructions that have
been explained in order for a chemical analysis to be performed, therefore thwarting
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the execution of the test, commits willful refusal to submit to a chemical analysis
under N.C.G.S. § 20-16.2.
The superior court and the Court of Appeals both employed an incorrect
standard of review and thus erred in reversing the administrative decision of the
DMV hearing officer revoking petitioner’s operator’s license. Accordingly, the Court
of Appeals decision is reversed and this matter is remanded to that court for further
remand to the superior court with instructions to reinstate the order of the DMV
dated 7 January 2016.
REVERSED AND REMANDED.
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