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Mercer v. Howard12/6/2005
ant, who exercises his rights, a reasonable but limited amount of time to procure [a witness's] presence. The effect of the statute then is to require a defendant to exercise his rights in a timely manner. Even if he does exercise his rights within thirty minutes of notification, the test can and will be administered after the lapse of thirty minutes regardless of whether the requested persons have arrived.
Id. at 374, 235 S.E.2d at 283. In Etheridge v. Peters, Comr. Of Motor Vehicles, 301 N.C. 76, 269 S.E.2d 133 (1980), the petitioner was arrested and charged with driving under the influence , and after being informed of his statutory rights, attempted to contact an attorney. Id. at 77, 269 S.E.2d at 134. The petitioner informed the officer that he wished to wait for the attorney to arrive, despite two offers by the officer to administer the test and reminders to the petitioner of the thirty-minute time limit under the statute for securing the presence of a witness. Id. The petitioner's attorney arrived approximately thirty-five minutes after the petitioner's rights were read, and the petitioner indicated that he was then willing to take the test. Id. However, the officer had already dismantled the test and recorded the test results as a refusal. Id. at 77-78, 269 S.E.2d at 134. TheSupreme Court affirmed the Court of Appeals's holding that petitioner willfully refused to submit to a breathalyzer test. Id. at 79, 269 S.E.2d at 135.
Here, the record shows that petitioner was given the opportunity to contact a witness after Corporal Holland read petitioner his rights at approximately 2:23 a.m. Corporal Holland testified that he assisted petitioner with dialing the number for petitioner's son. Corporal Holland stated that petitioner appeared to not be able to reach anyone, again requested to try to call his son, and was allowed to do so. Petitioner did not state that he wished for his son to serve as a witness, however, and had already told the officer that he was not going to take the test. At 2:59 a.m., Corporal Holland again requested that petitioner submit to the test, and petitioner again refused. Although petitioner never specified that he desired his son to serve as a witness, Corporal Holland nevertheless delayed testing for the required statutory period because of petitioner's efforts to contact his son. As petitioner was given the opportunity to contact a potential witness, in this case his son, and was unable to procure a witness within the statutory time period of thirty minutes, the trial court did not err in finding that the charging officer did not deny petitioner the right to have a witness present.
III.
Petitioner finally contends he was denied due process when Officer Standle was asked to leave the room after petitioner had requested his presence as a witness. We disagree. Our Supreme Court has previously recognized that individuals possess a protected property interest in their licenses. See Henry v. Edmisten and Barbee v. Edmisten, 315 N.C. 474, 480, 340 S.E.2d 720, 725 (1986). However, in reviewing a similar challenge under N.C. Gen. Stat. § 20-16.2 to a petitioner's deprivation of the right to counsel, our Supreme Court in Seders v. Powell, Comr. of Motor Vehicles, 298 N.C. 453, 259 S.E.2d 544 (1979), noted that "anyone who accepts the privilege of driving upon our highways has already consented to the use of the breathalyzer test[,]" and determined that a petitioner's rights in a civil revocation for failure to submit to a chemical analysis are governed by statute. Seders, 298 N.C. at 462-63, 259 S.E.2d at 550-51. As discussed supra, N.C. Gen. Stat. § 20-16.2(a)(6) provides the right for a petitioner to select a witness to view the testing procedures wi
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