 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ridge v. Faulkner11/15/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Phillip Ridge (petitioner) appeals from a judgment entered 20 August 2004 temporarily revoking or otherwise suspending his drivers license for his willful refusal to submit to a chemical analysis test once arrested for driving while impaired. Because we find petitioner's appeal to be moot, we dismiss it.
On 20 June 2003 at about 1:00 a.m., Officer C.H. Allison of the High Point Police Department saw petitioner make a wide right turn off of Highway 311. Officer Allison followed petitioner, and after observing him weave within his lane from one side to the other, pulled him over about a mile down the road. Officer Allisonadministered two sobriety tests, both of which petitioner failed. At that point, Officer Allison placed petitioner under arrest for driving while impaired.
After being taken to the intoxilyzer room in Guilford County, petitioner refused to submit to the test. As a result of his refusal, petitioner was notified by the Division of Motor Vehicles (DMV) that his license would be revoked for one year pursuant to N.C. Gen. Stat. § 20-16.2(d) (2003).
Upon receipt of a properly executed affidavit . . . [stating willful refusal to submit to chemical analysis], the Division must expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.
Id.; see also N.C. Gen. Stat. § 20-16.2(a) (2003). Petitioner did request a hearing. And while the hearing was pending, petitioner was able to retain his driving privileges. N.C. Gen. Stat. § 20-16.2(d) (2003) ("If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held . . . ."). After the hearing, the DMV entered an order supporting the temporary revocation of petitioner's license.
Petitioner then sought review before the superior court. In so doing, petitioner apparently also was issued a restraining order against the DMV or a stay to prevent the immediate enforcement ofthe suspension in accordance with section 20-16.2(d). See N.C. Gen. Stat. § 20-16.2(d) (2003) ("If the revocation is sustained, the person must surrender his or her license immediately upon notification by the Division."). Thus, pending review before the superior court, petitioner also retained his driving privileges. Following a hearing, on the matter the trial court entered an order with findings of fact and conclusions of law supporting suspension of petitioner's drivers license for refusal to submit to chemical analysis. The order demanded that "the restraining order previously entered by the court is dissolved and the suspension of Petitioner's license shall become effective upon notice to be mailed to petitioner by the Division of Motor Vehicles pursuant to G.S. § 20-48." Petitioner then properly filed notice of appeal to this Court.
In seeking a trial de novo before the superior court, petitioner sought relief from the temporary revocation. Petitioner, in asking this Court to reverse the judgment of the trial court, seeks only the same remedy here: restoration of his driving privilege. The judgment was filed 20 August 2004, and the revocation would have been effective shortly thereafter. According to the record, no stay
Page 1 2 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|