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Tolbert v. Hiatt9/5/1989
This appeal arises from the Superior Court's affirmance of a Department of Motor Vehicles' order revoking petitioner's driving privileges for an alleged refusal to submit to a breathalyzer test. The evidence at the non-jury trial tended to show petitioner was arrested by Officer Floyd on 7 June 1987 for driving while impaired. After transporting petitioner to the sheriff's department, Officer Floyd noticed petitioner was chewing something which Floyd identified as a penny. Officer Floyd told petitioner "not to put anything in his mouth until we got in to see the breathalyzer operator."
At 1:45 a.m., Officer Floyd requested that defendant submit to a chemical analysis to be performed by Patrolman Burleson, a lawfully authorized and licensed breathalyzer operator. During the preparation of the breathalyzer, Patrolman Burleson observed petitioner had placed a piece of paper or foreign matter in his mouth. Patrolman Burleson asked petitioner to remove the substance from his mouth and instructed petitioner that "under North Carolina law if a subject places any foreign matter in his mouth that he could be considered a willful refusal," and a chemical test could not be administered "fairly as required by law." The first breathalyzer test was performed at 2:25 a.m., and the result was a blood/alcohol level of 0.16.
During the preparation for a second test, Patrolman Burleson again observed petitioner chewing on foreign matter which appeared to be the corner of a dollar bill. Patrolman Burleson advised petitioner three times to remove this foreign matter from his mouth or he would be reported as willfully refusing the test. On each of these three times, petitioner stated he did not have anything in his mouth. Despite petitioner's denial, Patrolman Burleson observed petitioner did have the corner of a dollar bill in his mouth. Patrolman Burleson asked petitioner to remove the object from his mouth. Petitioner refused to do so and Patrolman Burleson reported petitioner as willfully refusing the second test five minutes after obtaining the results of the first test.
Based on this evidence, the trial court found in pertinent part:
3. That the petitioner was taken before Patrolman Ken Burleson . . . who informed the petitioner orally and also gave petitioner a notice in writing of all of petitioner's rights as enumerated [by statute].
4. That the petitioner willfully refused, without just cause or excuse, to submit to a chemical analysis upon the request of the charging officer.
From the foregoing facts, the Court concludes that the petitioner is subject to revocation of license pursuant to N.C.G.S. Sec. 20-16.2(d) and the order of the respondent complained of is justified in fact and in law.
Defendant appeals.
The issues presented are: I) whether the evidence supported the trial court's finding that petitioner willfully refused without just cause or excuse to submit to a chemical analysis under N.C.G.S. Sec. 20-16.2(d); and II) whether the trial court's revocation was based on adequate findings of fact.
I
Section 20-16.2(c) (1983) states that, "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 refusal does not preclude testing under other applicable procedures of law." Section 20-16.2(d) provides a procedure for revoking a petitioner's driver's lic
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