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In re Suspension of License to Operate A Motor Vehicle of Stephen Wayne Vallender NCDL 31811406/3/1986
The sole question presented by this appeal is whether the court erred in finding that petitioner willfully refused to submit by concluding that the thirty minute period began to run at 1:39 a.m., when he was advised of his rights, instead of at 1:54 a.m., when the formal request was made.
By statute, a person charged with an implied consent offense has the right to contact an attorney and select a witness to view the testing procedures impliedly consented to, "but the testing
may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights." G.S. 20-16.2(a)(6) (emphasis added). The 30 minute period from the advising of rights is a matter of legislative grace. State v. Howren, 312 N.C. 454, 323 S.E.2d 335 (1984). Petitioner had no constitutional right to refuse to submit to chemical analysis under the implied consent statutes, nor did he have a constitutional right to any waiting period longer than 30 minutes. Id. His right to the waiting period was purely statutory. G.S. 20-16.2(a)(6) allowed him 30 minutes from the time he was advised of his rights. We are aware of no other statutory waiting periods. Nothing else appearing, the court's finding was entirely correct.
Petitioner relies solely on Mathis v. N.C. Div. of Motor Vehicles, 71 N.C. App. 413, 322 S.E.2d 436 (1984). Mathis was advised of his rights and was requested to submit to the test by the charging officer at the same time. Thirty minutes later, Mathis, having contacted his attorney, refused a third request to submit and a refusal affidavit was prepared. Twenty minutes later, Mathis volunteered to take the test, but the officers refused to administer it. This Court affirmed the trial court's finding that Mathis' refusal was willful and affirmed the suspension. Chief Judge Vaughn wrote:
The standard of "willful refusal" in this context is clear. Once apprised of one's rights and having received a request to submit, a driver is allowed 30 minutes in which to make a decision. A "willful refusal" occurs whenever a driver "(1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test." Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980).
71 N.C. App. at 415, 322 S.E.2d at 437-38. [Emphasis added.]
Relying on the emphasized sentence, petitioner argues that his 30 minute period began to run only when he received a formal request after being advised of his rights, and he therefore did not receive the entire 30 minutes in which to make a decision. We disagree. The emphasized sentence must be read in light of the facts in Mathis, which were that the rights were read and a formal request
made at the same time. The Mathis court did not reach the question presented here and the language relied on by petitioner is essentially dicta which does not control here. More persuasive is our review of the criteria set out by the Supreme Court in Etheridge : there is no mention of a requirement for a "formal request." Instead, Etheridge focuses on the driver's awareness of his rights and of the consequences of refusal. Here there is no dispute that petitioner was apprised of those matters both orally and in writing, and received all the protection the law requires.
We note that
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