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Hargrove v. Howard12/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Petitioner Charles Benet Hargrove, Jr. appeals from the trial court's decision upholding the decision of the Division of Motor Vehicles ("DMV") to revoke petitioner's conditional driver's license. Based upon our review of the record, we hold that the trial court applied the proper standard of review and correctly determined that the DMV did not act in an arbitrary and capricious manner. Accordingly, we affirm.
On 28 June 1995, petitioner's driver's license was suspended due to multiple convictions for driving while impaired. On 21 January 1998, petitioner's driver's license was again suspended dueto multiple convictions for driving while impaired. On 19 July 2001, the DMV entered into an agreement with petitioner based upon which it conditionally restored petitioner's driving privileges. Petitioner agreed that if he violated the agreement, the restoration of his privileges would be revoked. One of the conditions was that petitioner would not operate or attempt to drive any motor vehicle on a street, highway, or public vehicular area after having consumed alcohol. Petitioner also agreed to only operate a vehicle properly equipped with an ignition interlock device.
On 26 February 2003, the DMV held a compliance hearing to determine whether petitioner had violated the restoration agreement. Monitech, Inc., the company responsible for installing and monitoring the ignition interlock device, had reported to DMV that petitioner had several high alcohol readings and failed to take a mandatory standing retest after failing a rolling retest. At the hearing, petitioner claimed that the high alcohol readings were caused by his drinking grape soda. Monitech technicians stated in affidavits that the readings were "consistent with true [blood alcohol content]" and suggested that petitioner had "possible assistance on pass test." The technicians also denied that food could cause alcohol readings that high. Following the hearing, the DMV revoked petitioner's conditional license restoration.
On 26 March 2003, petitioner filed a "Notice of Appeal, Complaint/Petition and Motion for Temporary Restraining Order andApplication for Writ of Certiorari." On 31 March 2003, the Richmond County Superior Court entered an order restraining the DMV from suspending or revoking petitioner's driving privileges pending a hearing, which was held on 20 January 2004.
On 17 May 2004, the court entered an order agreeing to consider petitioner's appeal as a petition for writ of certiorari. The court then found:
Upon review of the whole record under a petition for writ of certiorari, the court finds no evidence in the record that the decision of to deny petitioner's conditional restoration of his driving privileges was in violation of constitutional provisions, was in excess of statutory authority, was made upon unlawful procedure, was affected by error of law, was unsupported by substantial evidence, or was arbitrary and capricious.
Based on that determination, the court dismissed the petition for writ of certiorari with prejudice and ordered that the DMV's "denial of Petitioner's license is affirmed." Petitioner appealed.
Petitioner first argues that the trial court erred by reviewing his appeal from the DMV's decision under the standards applicable to a petition for writ of certiorari rather than conducting a de novo review pursuant to N.C. Gen. Stat. § 20-25 (2003). This argument is
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