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Nicholson v. Killens10/4/1994
roper basis for the twelve month revocation for willful refusal to submit.
On this record, given the strict construction required in dealing with statutes that impose a penalty, we conclude that the trooper's failure to comply with G.S. 20-16.2(a) in the face of petitioner's refusal to submit must result in the rescission of the revocation of petitioner's license in this case. G.S. 20-16.2(d). We have carefully considered respondent's in pari materia argument regarding G.S. 20-139.1 in the briefs and upon oral argument. Though ably presented, we conclude that it is not persuasive. We do not disagree with appellant that G.S. 20-16.2 must be read in conjunction with G.S. 20-139.1 to determine the procedures governing the administering of chemical analyses. However, we conclude that G.S. 20-16.2, and that statute alone, sets forth the procedures governing notification of rights pursuant to a chemical analysis. "If and when the lawmaking body wishes to amend the statute, a few words will suffice. This Court must forego the opportunity to amend here." Insurance Co. v. Bynum, 267 N.C. 289, 292, 148 S.E.2d 114, 117 (1966).
In oral argument appellant expressed its concerns regarding the admissibility of the results of the breath analysis by the Intoxilyzer instrument, an automated breath instrument that prints the result of the analysis, in criminal trials for violations of Chapter 20. We emphasize that our decision here is limited to our careful interpretation of the governing statutes relating to the statutorily mandated twelve (12) month administrative revocation of petitioner's driver's license
for refusal to submit to breath analysis pursuant to G.S. 20-16.2. Our holding today is intended to apply to cases in which the issue has not been waived by petitioner's failure to raise the issue at the DMV hearing or at the de novo hearing in superior court or by petitioner's failure to properly preserve the issue on appeal to the appellate courts. Furthermore, our holding does not apply to cases in which petitioner did not exercise his rights of review of the DMV's determination.
For the reasons stated, the assignment of error fails and the trial court's order rescinding the DMV order of revocation is affirmed. This opinion supersedes our previous opinion filed in this case on 19 July 1994, Nicholson v. Killens, 115 N.C. App. 552, 445 S.E.2d 608 (1994).
Affirmed.
Judges LEWIS and WYNN concur.
Disposition
Affirmed.
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