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Eibergen v. Killens11/19/1996
WALKER, Judge.
On 25 May 1994, at 10:30 p.m., petitioner was stopped in Orange County and charged with driving while impaired. Petitioner thereafter submitted to a chemical analysis of his breath which established that he had a .15 percent blood alcohol content. Petitioner then appeared before an Orange County magistrate, who issued a "Revocation Order When Person Present," revoking petitioner's driver's license for ten days. The magistrate ordered that petitioner's "license or privilege to drive be revoked, and he is prohibited from operating a motor vehicle on the highways of North Carolina during the period of revocation; and the revocation remains in effect for at least ten days from the date he surrenders his license to the Court . . . ." The time and date of the order was 11:42 p.m., 25 May 1994. Because petitioner stated he did not have his driver's license card with him, the magistrate marked the box on the order which stated that petitioner "was validly licensed but unable to locate his license card and filed an affidavit which constituted surrender of the driver's license." No affidavit was filed in this case.
The next morning, 26 May 1994, at 8:20 a.m., petitioner was stopped in Alamance County and charged with driving while impaired, driving while license revoked, and speeding. At this time, however, petitioner had his driver's license card with him. A chemical analysis was conducted on his breath, which indicated that he had a .11 blood alcohol content. On 22 November 1994, petitioner pled guilty in Alamance County to driving while impaired, and the other charges were dismissed. The district court found the magistrate's order in Orange County had not yet become effective when petitioner was stopped in Alamance County because his "driver's license was not in fact revoked . . . ." Thereafter, petitioner received notice from respondent that his driver's license was revoked for one year for having committed a moving violation during a period when his driver's license was revoked pursuant to N.C. Gen. Stat. § 20-28.1(b)(1)(1993). The moving violation referred to in the notice was the Alamance County charge.
On 10 February 1995, petitioner filed a petition in Alamance County Superior Court seeking to have respondent enjoined from revoking his license for one year. A hearing was held on 10 July 1995, and the superior court found that petitioner had not surrendered his driver's license in Orange County because petitioner had his driver's license in his possession when he was stopped in Alamance County. The court held petitioner's conviction in Alamance County did not constitute a moving violation during a period of license suspension and ordered the revocation of petitioner's license permanently enjoined.
Because the facts of this case are not in dispute, we need only address whether the evidence in the record supports respondent's revocation of petitioner's license pursuant to N.C. Gen. Stat. § 20-28.1(b)(1) for the commission of a moving violation during a period of driver's license suspension. The dispositive issue in this case is whether the Orange County magistrate's ten day revocation order immediately revoked petitioner's driver's license. Respondent contends that the magistrate's order immediately revoked petitioner's driver's license, and that petitioner committed a moving violation during a period of revocation by operating a motor vehicle the next day in Alamance County.
The Orange County magistrate had the authority to order a ten day revocation of petitioner's driver's license under N.C. Gen. Stat. § 20-16.5(b)(4)(b)(1993), which states that a person's driver's license is subject to immediate revocation if the person "has an alcohol co
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