Brackett v. Thomas ( 2017 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA16-912
    Filed: 4 April 2017
    Guilford County, No. 16 CVS 2827
    WAYNE T. BRACKETT, JR., Petitioner,
    v.
    KELLY J. THOMAS, Commissioner, Respondent.
    Appeal by respondent from order entered 16 June 2016 by Judge Susan E. Bray
    in Guilford County Superior Court. Heard in the Court of Appeals 6 February 2017.
    Joel N. Oakley for petitioner-appellee.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General
    Christopher W. Brooks, for respondent-appellant.
    TYSON, Judge.
    I. Procedural Background
    Wayne T. Brackett, Jr. (“Petitioner”) filed a complaint against Kelly J. Thomas,
    Commissioner of the North Carolina Division of Motor Vehicles, (“Respondent”) on 19
    January 2016. Petitioner alleged he was arrested and charged with driving while
    impaired on 13 August 2015.        Petitioner further alleged “[Respondent] notified
    Petitioner that effective January 18, 2016, [P]etitioner’s driving privileges were to be
    suspended and revoked based on a refusal to submit to a chemical test.”
    BRACKETT V. THOMAS
    Opinion of the Court
    Petitioner requested an administrative hearing before the Division of Motor
    Vehicles (“DMV”), which was conducted on 7 January 2016. 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
     and 20-25 (2015).
    The superior court heard Petitioner's petition on 6 June 2016 and reversed the
    decision of the DMV, holding “[t]he record does not support the conclusion under 
    N.C. Gen. Stat. § 20-16.2
    (d)(5).” Petitioner was later convicted of the underlying charge of
    impaired driving.    Respondent appeals and argues the superior court erred in
    reversing the administrative decision of the DMV hearing officer. We affirm.
    II. Statement of Jurisdiction
    Jurisdiction lies in this Court as an appeal of a final judgment of a superior
    court entered upon review of an administrative agency pursuant to N.C. Gen. Stat. §
    7A-27(b)(1).
    III. Standard of Review
    On appeal from a DMV hearing, the superior court sits as an appellate court
    and determines “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) (2015). This Court reviews the
    superior court's decision to “‘(1) determin[e] whether the trial court exercised the
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    BRACKETT V. THOMAS
    Opinion of the Court
    appropriate scope of review and, if appropriate, (2) decid[e] whether the court did so
    properly.’” Johnson v. Robertson, 
    227 N.C. App. 281
    , 286-87, 
    742 S.E.2d 603
    , 607
    (2013) (quoting ACT–UP Triangle v. Comm’n for Health Servs., 
    345 N.C. 699
    , 706,
    
    483 S.E.2d 388
    , 392 (1997)).
    “The standard of review for an appellate court upon an appeal from an order
    of the superior court affirming or reversing an administrative agency decision is the
    same standard of review as that employed by the superior court.” Dorsey v. UNC-
    Wilmington, 
    122 N.C. App. 58
    , 62–63, 
    468 S.E.2d 557
    , 560 (1996) (citation omitted).
    We apply the same standard of review required by 
    N.C. Gen. Stat. § 20-16.2
    (e) for
    reviewing a DMV decision to revoke a petitioner’s driving privileges for a willful
    refusal to submit to chemical analysis for an implied-consent charge. On appeal,
    “there is a presumption in favor of regularity and correctness in proceedings in the
    trial court with the burden on the appellant to show error.” L. Harvey & Son Co. v.
    Jarman, 
    76 N.C. App. 191
    , 195–96, 
    333 S.E.2d 47
    , 50 (1985) (citing In re Moore, 
    306 N.C. 394
    , 
    293 S.E.2d 127
     (1982), app. dism., 
    459 U.S. 1139
    , 
    74 L.Ed.2d 987
     (1983)).
    IV. Analysis
    Respondent argues the superior court erred in reversing the DMV’s decision.
    The Commissioner asserts the agency record contains substantial evidence to support
    the findings of fact, and the findings of fact support the hearing officer’s conclusion
    that Petitioner willfully refused to submit to chemical analysis. We disagree.
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    BRACKETT V. THOMAS
    Opinion of the Court
    This appeal arises from a revocation proceeding under 
    N.C. Gen. Stat. § 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). 
    N.C. Gen. Stat. § 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), 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 drivers 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 drivers 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 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) (2015).
    Respondent argues substantial evidence in the record supports the findings of
    fact in the DMV’s decision, which in turn supports the DMV’s conclusion of law. The
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    BRACKETT V. THOMAS
    Opinion of the Court
    superior court reviewed the record and the transcript of the DMV's administrative
    hearing and heard arguments from both parties.
    In its order reversing the DMV’s decision, the superior court found “[t]he record
    does not support the conclusion under 
    N.C. Gen. Stat. § 20-16.2
    (d)(5). Therefore, the
    Hearing Officer should not have found that the petitioner willfully refused to submit
    to a chemical analysis of his breath.” The superior court’s order does not set out the
    standard of review required by 
    N.C. Gen. Stat. § 20-16.2
    (e), and does not explain
    which of the agency’s fact findings were unsupported. The order does not state what
    standard of review was used by the superior court.
    However, as our Supreme Court held in Capital Outdoor, Inc. v. Guilford Cty.
    Bd. of Adjust., 
    355 N.C. 269
    , 
    559 S.E.2d 547
     (2002), “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.” 
    Id.
     (adopting the dissenting opinion
    in 
    146 N.C. App. 388
    , 392, 
    552 S.E.2d 265
    , 268 (2001) (Greene, Judge, dissenting)).
    After review of the record and transcripts, we consider the issue under the applicable
    statutory standard of review, without remanding the case to the superior court.
    Respondent argues substantial evidence in the record supports the findings of
    fact, which in turn supports the DMV’s conclusion of law that Petitioner willfully
    refused to submit to a chemical analysis.        The DMV Hearing Officer made the
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    BRACKETT V. THOMAS
    Opinion of the Court
    following findings of fact in his order, which upheld the revocation of Petitioner’s
    driver’s license:
    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.
    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.
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    BRACKETT V. THOMAS
    Opinion of the Court
    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.
    17. The petitioner’s second attempt resulted in a detection of
    mouth alcohol. With that, Officer Brent Kinney had to reset
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    BRACKETT V. THOMAS
    Opinion of the Court
    the instrument, not to provide another opportunity for the
    petitioner to take the test, but to enter the refusal into the
    instrument. [emphasis added].
    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.
    The DMV Hearing Officer also made the following conclusions of law in its order:
    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.
    A. Evidence That Petitioner Was Charged With An Implied-Consent Offense
    Under the first requirement of 
    N.C. Gen. Stat. § 20
    –16.2(d), testimony at the
    administrative hearing is sufficient evidence to show Petitioner was charged with an
    implied-consent offense. The DMV’s Finding of Fact number 10, relevant to this
    conclusion of law, is supported by Officer Brent Kinney’s testimony that he arrested
    Petitioner for driving while impaired.     Additionally, Petitioner concedes in his
    petition seeking review of the DMV’s revocation of his license that he was charged
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    BRACKETT V. THOMAS
    Opinion of the Court
    with the implied-consent offense of Impaired Driving under 
    N.C. Gen. Stat. § 20
    -
    138.1. This conclusion of law is supported by the findings and is not in dispute.
    B. Evidence That A Law Enforcement Officer Had Reasonable Grounds To Believe
    Petitioner Had Committed An Implied–Consent Offense
    “[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
    .
    Concerning the second requirement, Respondent identifies the DMV Hearing
    Officer’s Findings of Facts 1 through 9 as supporting the conclusion that Officer
    Kinney had reasonable grounds to believe Petitioner had committed an implied-
    consent offense. Officer Kinney indicated in his testimony: (1) Petitioner appeared to
    be impaired based on his gait, glassy eyes, and dazed look; (2) Officer Kinney observed
    Petitioner operating his vehicle while in the shopping center parking lot (3) Petitioner
    admitted to Officer Kinney that he had driven his car in the shopping center parking
    lot; (4) Petitioner had slurred speech; (5) After Officer Kinney had pulled over the
    vehicle Petitioner was in, Petitioner disregarded Officer Kinney’s instructions to not
    put candy in his mouth; (6) Petitioner “had a very strong odor of alcohol on him[;]”
    and (7) Petitioner failed two field sobriety tests.
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    BRACKETT V. THOMAS
    Opinion of the Court
    Officer Kinney’s testimony is competent evidence, which supports the DMV’s
    Findings of Fact 1, 7, 8, and 9. These Findings of Fact support the DMV’s conclusion
    that a law enforcement officer had reasonable grounds to believe Petitioner had
    committed an implied-consent offense. See Atkins v. Moye, 
    277 N.C. 179
    , 185, 
    176 S.E.2d 789
    , 794 (1970) (finding that the “[f]act that a motorist ha[d] been drinking,
    when considered in connection with faulty driving . . . or other conduct indicating an
    impairment of physical or mental faculties, is sufficient prima facie [evidence] to show
    a violation of [the driving while impaired statute].”) (quotations and citations
    omitted).
    C. The Affidavit Contains No Allegation That The Implied-Consent Offense
    Charged Involved Death Or Critical Injury To Another Person
    The third requirement of 
    N.C. Gen. Stat. § 20-16.2
    (d) is inapplicable to the
    present case.    No death or critical injury to another person was alleged in the
    affidavit. Neither party contends subsection (3) is at issue.
    D. Evidence That Petitioner Was Notified Of His Rights
    As to the fourth requirement, Respondent asserts Officer Kinney’s testimony
    shows he read Petitioner his implied-consent rights, and supplied Petitioner with a
    copy of his implied-consent rights. Petitioner refused to sign the implied-consent
    rights form or indicate he wanted to call an attorney or witness. This testimony
    supports the DMV hearing officer’s Finding of Fact number 11. Finding of Fact
    number 11 supports the hearing officer’s conclusion of law that Petitioner was
    notified of his rights as required by 
    N.C. Gen. Stat. § 20-16.2
    (a).
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    BRACKETT V. THOMAS
    Opinion of the Court
    E. Evidence That Petitioner Willfully Refused To Submit To A Chemical Analysis
    As to the fifth requirement, Respondent asserts testimony presented at the
    DMV hearing shows Petitioner willfully refused to submit to a chemical analysis.
    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 testified he told the arresting officer before being administered the
    Intoximeter that he suffered from asthma.
    In Steinkrause v. Tatum, this Court concluded that where the petitioner
    breathed quick, short bursts of air into the breathalyzer, contrary to the chemical
    analyst’s instructions to provide an adequate continuous breath sample, the evidence
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    BRACKETT V. THOMAS
    Opinion of the Court
    was sufficient to support a finding and conclusion that the petitioner willfully refused
    to submit to chemical analysis. Steinkrause, 201 N.C. App. at 296-97, 
    689 S.E.2d at 383-84
    . In Steinkrause, the petitioner complained to the arresting officer that injuries
    she suffered had diminished her ability to provide an adequate breath sample. 
    Id.
    The arresting officer testified that the petitioner looked physically capable of
    providing an adequate sample of breath. 
    Id.
     Relying on Tedder v. Hodges, the Court
    held that evidence of a petitioner’s failure to follow the instructions of an intoxilyzer
    operator provides an adequate basis for a superior court to conclude that the
    petitioner willfully refused chemical analysis. Id. at 298, 
    689 S.E.2d at
    385 (citing
    Tedder v. Hodges, 
    119 N.C. App. 169
    , 175, 
    457 S.E.2d 881
    , 885 (1995)). Respondent
    argues, citing Steinkrause and Tedder, the arresting officer’s testimony that
    Petitioner did not follow instructions provided an adequate basis for the DMV
    Hearing Officer’s findings of fact to support the conclusion Petitioner had willfully
    refused to submit to chemical analysis.
    The facts in both Steinkrause and Tedder are factually distinguishable from
    the instant case. In Steinkrause and Tedder, “petitioners agreed to submit to a test
    of their breath and failed to maintain sufficient pressure to provide a valid sample.”
    Id. at 299, 
    689 S.E.2d at 385
     (summarizing Tedder v. Hedges, 
    119 N.C. App. 169
    , 
    457 S.E.2d 881
    ). In neither case did the intoxilyzer machine register “mouth alcohol” nor
    sufficient samples when the petitioners purported to blow.
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    BRACKETT V. THOMAS
    Opinion of the Court
    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 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.
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    BRACKETT V. THOMAS
    Opinion of the Court
    V. Conclusion
    Respondent has not shown the record evidence supports the conclusion, “[t]he
    person willfully refused to submit to a chemical analysis,” set forth in 
    N.C. Gen. Stat. § 20-16.2
    (d) for civil revocation of Petitioner's driver's license. The superior court’s
    order reversing the DMV’s civil revocation of Petitioner’s license is affirmed. It is so
    ordered.
    AFFIRMED.
    Chief Judge McGEE and Judge STROUD concur.
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