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[T] Hester v. North Carolina Division of Motor Vehicles5/20/2003
UNPUBLISHED
The North Carolina Department of Motor Vehicles ("DMV") revoked petitioner's driver's license for a period of twelve months based on her willful refusal to submit to an Intoxilyzer 5000 chemical analysis after being charged with the implied consent offense of driving while impaired. See N.C. Gen. Stat. § 20-16.2 (2001). As was her right under N.C. Gen. Stat. § 20-16.2(e), petitioner sought a de novo hearing in superior court. At the outset of the hearing, the parties stipulated that the only issue in dispute was whether petitioner willfully refused to submit tothe chemical analysis. The trial court heard the evidence and arguments of the parties and upheld the DMV's decision. Petitioner appealed.
Wilmington Police Officer Eddie Eubanks testified that he arrested petitioner for driving while impaired on the evening of 2 October 2001. Eubanks, who was a licensed chemical analyst, transported petitioner to the Law Enforcement Center and attempted to administer an Intoxilyzer 5000 test. He advised petitioner of her rights at 6:34 p.m. and asked her to submit a breath sample at 7:03 p.m. On her first attempt, petitioner gave a valid sample which registered a blood alcohol level of .19. When Eubanks asked her for the second sample, however, petitioner replied that "she didn't want to, she was unable to because she was going to be sick." Petitioner told Eubanks that she felt as if she was going to throw up. However, although petitioner spat into a trash can, she never vomited. Petitioner did not place her mouth on the mouthpiece or attempt to give a second breath sample. According to Eubanks, if the second test was not performed within a two-minute period, the Intoxilyzer registers a "no test" and "you have to start over." After unsuccessfully asking petitioner "several times" to provide a second breath sample, Eubanks recorded her refusal at 7:05 p.m.
Petitioner testified that she was "very impaired" when Eubanks pulled her over. By the time she arrived at the Law Enforcement Center, she "was starting to get really, really sick from the alcohol and not eating." Petitioner acknowledged successfullyperforming the initial Intoxilyzer test. When Eubanks asked for the second breath sample, however, petitioner attempted to comply but "started throwing up." Rather than refusing to submit to the test, petitioner insisted she "was not physically able to blow into that machine[,]" because she "was throwing up so hard that could not even catch breath, much less blow into the thing."
In its judgment upholding the revocation of petitioner's driver's license under N.C. Gen. Stat. § 20-16.2(d), the trial court found that " t the time petitioner was requested to submit the sequential breath sample, she was not vomiting. Petitioner never placed her mouth on the mouthpiece of the ntoxilyzer to submit a second breath sample." The trial court further found that " petitioner willfully refused to submit to a chemical analysis upon the request of the charging officer."
The sole issue on appeal is whether the trial court erred in finding petitioner willfully refused to submit to a chemical analysis. Petitioner contends the evidence established that she was physically unable to perform the analysis, not that she refused to do so.
The determination that a person willfully refused to submit to a chemical analysis under N.C. Gen. Stat. § 20-16.2(a)(3) is a finding of ultimate fact. Tolbert v. Hiatt, 95 N.C. App. 380, 385, 382 S.E.2d 453, 456 (1989). "Where the trial judge sits as the trier of fact, ' he court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulk
Page 1 2 North Carolina DUI Attorneys
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