Poag v. Powell, Comr. of Motor Vehicles

250 S.E.2d 93 (1979) 39 N.C. App. 363

Morgan Rees POAG
v.
Edward L. POWELL, Commissioner of Division of Motor Vehicles.

No. 7818SC250.

Court of Appeals of North Carolina.

January 2, 1979.

William L. Stocks, Greensboro, for plaintiff appellant.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

ARNOLD, Judge.

G.S. 20-16.2 provides for the mandatory revocation of the driver's license of any person who refuses to submit to chemical tests to determine the alcoholic content of his breath or blood after he has been arrested for driving under the influence of liquor. Plaintiff brings this action under G.S. 20-16.2(e) for review of the revocation of his driving privileges. G.S. 20-16.2(d) sets out the scope of the initial hearing from which appeal may be taken to the Superior Court. That hearing is to cover, among other issues, "whether the law-enforcement officer had reasonable grounds to believe the person had been driving . . . while under the influence of intoxicating liquor,. . . and whether he willfully refused to submit to the test upon the request of the officer."

Plaintiff first assigns error to the failure of the court to make findings of fact in support of its conclusion that Officer Bradley arrested the plaintiff "upon reasonable grounds." Under G.S. 1A-1, Rule 52(a)(1), in all actions tried without a jury the court is required to "find the facts specially and state separately its conclusions of law thereon." By its bare finding "[t]hat on the 4th day of September, 1976, the plaintiff was arrested by a law-enforcement officer, Patrolman Ronald Bradley of the Chapel Hill Police Department, upon reasonable grounds, for the offense of operating a motor vehicle upon the public highways while under the influence of intoxicating liquor" the court failed to comply with the statute. Plaintiff argues that such a failure is reversible error, citing Jones v. Murdock, 20 N.C.App. 746, 203 S.E.2d 102 (1974). While we do not approve of the trial judge's failure to comply with the statute, we see no purpose that would be served by remanding for findings of fact, see e. g. Jamison v. Charlotte, 239 N.C. 423, 79 S.E.2d 797 (1953), or by awarding the plaintiff here a new trial. As this Court indicates in Jones, the requirement that facts be found specially is intended to provide a basis for appellate review. The facts leading up to the arrest in this case are essentially uncontradicted; only the conclusion to be drawn from them is disputed. Accordingly, we are able to review the judge's conclusion adequately without the aid of detailed findings of fact. Having done so, we find that there was sufficient evidence to support his conclusion that there were reasonable grounds for the arrest.

On the issue of whether the plaintiff refused to submit to the breathalyzer test, the trial court made findings of fact. The plaintiff argues that the court was in error in concluding from these findings that he willfully refused to submit to the test. We disagree. While we think it would have been better practice for the officer administering the test to check the machine for proper functioning when he failed to obtain an air sample, we note that the machine had been tested and found to be working properly immediately before the test was administered. The plaintiff was three times instructed in using the machine and told that a failure to give a sufficient sample would be treated as a willful refusal. The facts provide sufficient support for the judge's conclusion.

Affirmed.

VAUGHN and ROBERT M. MARTIN, JJ., concur.