Wolski v. N.C. Div. of Motor Vehicles , 252 N.C. App. 422 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-702
Filed: 21 March 2017
Mecklenburg County, No. 15-CVS-23668
JENNIFER ANNE WOLSKI, Petitioner,
v.
NORTH CAROLINA DIVISION OF MOTOR VEHICLES and the COMMISSIONER
OF MOTOR VEHICLES, Respondents.
Appeal by Respondents from order entered 24 May 2016 by Judge Daniel A.
Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 11
January 2017.
Knox, Brotherton, Knox & Godfrey, by Allen C. Brotherton, for Petitioner-
Appellee.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for Respondent-Appellant.
DILLON, Judge.
North Carolina Division of Motor Vehicles and the Commissioner of Motor
Vehicles (collectively referred to as “the DMV” or the “Respondents”)1 appeal from a
1 While the two are separate entities, a number of the pleadings and documents before this
Court refer to the “North Carolina Division of Motor Vehicles and the Commissioner of Motor Vehicles”
as one single, fused entity.
WOLSKI V. NCDMV
Opinion of the Court
trial court order reversing an agency decision that revoked Jennifer Anne Wolski’s
driver’s license. After careful review, we affirm the trial court’s order.
I. Background
In April 2015, a Huntersville police officer arrested Jennifer Anne Wolski for
driving while under the influence.
After being advised of her rights under N.C. Gen. Stat. § 20-16.2(a) (2013) at
police department headquarters, Ms. Wolski refused to both submit to a breathalyzer
test and sign the provided statutory form (“Rights Form”).
The officer, who is a certified chemical analyst, executed a sworn affidavit and
revocation report2 that contained conflicting information regarding Ms. Wolski’s
refusal to submit to breathalyzer testing.3 Although the affidavit referred to an
attached Rights Form as evidence of Ms. Wolski’s refusal to submit to testing, the
attached Rights Form did not indicate that Ms. Wolski had refused testing.
2 Pursuant to N.C. Gen. Stat. § 20-16.2(c1) (2013), the arresting officer and chemical analyst
must execute an affidavit setting forth: (1) the alleged, implied-consent offense—generally a driving
under the influence charge, (2) information regarding the arrest and offense at issue, (3) information
establishing that the arrestee was advised of her statutory rights, and (4) information establishing
whether the arrestee submitted to breathalyzer testing. Id. Execution entails completion of the
affidavit and signage by the arresting officer and chemical analyst in front “of an official authorized to
administer oaths.” Id.3 The affidavit indicated that Ms. Wolski had both submitted and refused to submit to
breathalyzer testing.
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Opinion of the Court
The officer later amended the attached Rights Form to reflect Ms. Wolski’s
refusal to submit to testing. The officer did not re-execute the affidavit to reflect this
change.
The DMV notified Ms. Wolski of the impending revocation of her driver’s
license. Ms. Wolski requested a hearing to challenge the imminent revocation on
jurisdictional grounds. The hearing officer rejected Ms. Wolski’s jurisdictional
arguments and affirmed the DMV’s decision to revoke her driver’s license.
Ms. Wolski appealed the DMV hearing officer’s decision. The trial court
reversed the revocation of Ms. Wolski’s driver’s license. The DMV filed an appeal.4
II. Standard of Review
As the trial court reviewed the hearing officer’s decision as an appellate court,
see Johnson v. Robertson, 227 N.C. App. 281, 286, 742 S.E.2d 603, 607 (2013)
(reaffirming principle that a trial court acts as an appellate court when reviewing
certain, final agency decisions), our standard of review is limited to “(1) determining
whether the trial court exercised the appropriate scope of review and, if appropriate,
(2) deciding whether the court did so properly,” ACT-UP Triangle v. Comm’n for
Health Servs. of the State of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)
4 The DMV’s notice of appeal refers to the “Respondents”—namely the North Carolina Division
of Motor Vehicles and the Commissioner of Motor Vehicles—as one single, fused entity. Nevertheless,
we have appellate jurisdiction to review this matter as the DMV’s intent to appeal the trial court’s
order as two separate entities “can be fairly inferred from the notice [of appeal].” State v. Springle,
___N.C. App. ___, ___, 781 S.E.2d 518, 521 (2016) (internal quotation marks omitted).
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Opinion of the Court
(internal quotation marks omitted). Here, the trial court’s appropriate scope of
review is “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). Questions of law are
reviewed de novo. See Davis v. Dep’t of Crime Control & Pub. Safety, 151 N.C. App.
513, 516, 565 S.E.2d 716, 719 (2002).
III. Analysis
The DMV contends in part that the trial court erred as the officer’s affidavit
was executed in compliance with N.C. Gen. Stat. § 20-16.2(c1). For the following
reasons, we disagree.
At the outset, we note that the trial court applied the correct standard of
review. The trial court revealed that “[t]he standard of review applied . . . is . . .
whether there is sufficient evidence in the record to support Respondents’ findings of
fact, whether the conclusions of law are supported by the findings of fact and whether
Respondents committed an error of law in revoking the license.”
As to the DMV’s substantive argument, we hold that Lee v. Gore, 365 N.C. 227,
717 S.E.2d 356 (2011) controls and therefore conclude that the DMV lacked
jurisdiction to revoke Ms. Wolski’s driver’s license. In Lee, our Supreme Court
affirmed a Court of Appeals’ decision reversing license revocation, holding that “an
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Opinion of the Court
affidavit materially altered outside the presence of someone authorized to administer
oaths, or an affidavit that omits entirely the material element of willfulness, is not
properly executed for the purposes of section 20–16.2(d).” Id. at 233–34, 717 S.E.2d
at 361 (internal quotation marks omitted).
Much like the officer in Lee, id. at 233, 717 S.E.2d at 361, the officer here failed
to modify the Rights Form in front of a magistrate or an official authorized to
administer oaths. Although the modification at issue in Lee was made directly on the
affidavit form, id. at 228-29, 717 S.E.2d at 358, the officer’s modification here
nevertheless related to a material requirement under N.C. Gen. Stat. § 20-16.2(c1)—
namely, whether Ms. Wolski submitted to testing. Moreover, the Rights Form was
specifically incorporated by reference in the affidavit. See Patterson ex rel. Jordan v.
Patterson, 137 N.C. App. 653, 659, 529 S.E.2d 484, 488 (2000) (applying general
principle of incorporation by reference to affidavits). Therefore, any material
alteration to the Rights Form required re-execution of the affidavit in compliance
with N.C. Gen. Stat. § 20-16.2(c1). Accordingly, we hold that the officer’s failure to
modify the Rights Form in front of a magistrate or official stripped the DMV of
jurisdiction to revoke Ms. Wolski’s driver’s license.
IV. Conclusion
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Opinion of the Court
As the Rights Form was not modified in front of a magistrate or official, we
hold that the DMV lacked jurisdiction to revoke Ms. Wolski’s license. We therefore
affirm the trial court’s ruling.
AFFIRMED.
Judges ELMORE and ZACHARY concur.
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