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Nicholson v. Killens10/4/1994
EAGLES, Judge.
In its sole assignment of error, respondent argues that the trial court erred in this civil proceeding in ordering a rescission of the DMV order of revocation of petitioner's license because respondent contends petitioner was properly advised of his rights under G.S. 20-16.2(a). After careful review, we disagree and affirm.
G.S. 20-16.2 provides:
(a) Basis for Charging Officer to Require Chemical Analysis; Notification of Rights.- . . . .
Except as provided in this subsection or subsection (b), before any type of chemical analysis is administered the person charged must be taken before a chemical analyst authorized to administer a test of a person's breath, who must inform the person orally and also give the person a notice in writing that:
(1) He has a right to refuse to be tested.
(2) Refusal to take any required test or tests will result in an immediate revocation of his driving privilege for at least 10 days and an additional 12-month revocation by the Division of Motor Vehicles.
(3) The test results, or the fact of his refusal, will be admissible in evidence at trial on the offense charged.
(4) His driving privilege will be revoked immediately for at least 10 days if:
a. The test reveals an alcohol concentration of 0.08 or more; or
b. He was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more.
(5) He may have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer.
(6) He has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights.
If the charging officer or an arresting officer is authorized to administer a chemical analysis of a person's breath and the charging officer designates a chemical analysis of the blood of the person charged, the charging officer or the arresting officer may give the person charged the oral and written notice of rights required by this subsection.
(c) Request to Submit to Chemical Analysis; Procedure upon Refusal.-- The charging officer, in the presence of the chemical analyst who has notified the person of his rights under subsection (a), must request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law. Then the charging officer and the chemical analyst must without unnecessary delay go before an official authorized to administer oaths and execute an affidavit stating that the person charged, after being advised of his rights under subsection (a), willfully refused to submit to a chemical analysis at the request of the charging officer. . . .
(d) Consequences of Refusal; Right to Hearing before Division; Issues.-- . . . . If the person properly requests a hearing, he retains his license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws his request, or he fails to appear at a scheduled hearing. . . . The hearing must be conducted in the county where the charge was brought, and must be limited to consideration of whether:
(1) The person was charged with an implied-consent offense;
(2) The charging officer
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