Whether a suspect refused to submit to a breath test is a hotly contested issue in many impaired driving cases. That determination is critical to two proceedings: the administrative proceeding to determine whether the person’s license will be revoked as a result of the alleged refusal and the criminal trial at which a refusal may be considered as evidence of the defendant’s guilt.
Refusal isn’t always easy to discern. Some defendants are injured in the incident leading to their arrest. Some have pre-existing medical conditions that may affect their breathing. Some are confused or disoriented. Some are grossly impaired.
Breath-test operators make the initial judgment as to whether a person has deliberately refused testing. Their determinations later may be reviewed by DMV hearing officers conducting license-revocation hearings, by superior courts reviewing revocation orders, and by trial courts at the district and superior level to determine whether evidence of a refusal is admissible at trial and, in superior court, how to instruct juries to consider such refusals.
Sometimes the doctrine of collateral estoppel bars a court or DMV in a subsequent proceeding from reconsidering another court’s ruling on the refusal issue. In many circumstances, however, reconsideration of the issue is permissible.
Prior ruling bars reconsideration.
- When a superior court determines, pursuant to an appeal under G.S. 20-16.2(e) from a DMV-issued refusal revocation, that a defendant did not willfully refuse a chemical analysis, the issue of refusal may not later be relitigated in the defendant’s criminal trial. See State v. Summers, 351 N.C. 620 (2000) (decided under former version of G.S. 20-16.2(e), which provided for de novo review of revocation order in superior court; current G.S. 20-16.2(e) provides for more limited review).
- When a trial court suppresses evidence for lack of probable cause to arrest, DMV may not reconsider, in an administrative revocation hearing conducted after final judgment in the criminal case, whether reasonable grounds existed for the impaired driving charge. See Brower v. Killens, 122 N.C. App. 685 (1996). Because one of the requirements for a refusal revocation is that the officer had reasonable grounds to charge the person, DMV may not issue a refusal revocation in these circumstances.
No collateral estoppel bar.
- When a trial court determines in a criminal proceeding that the defendant’s statutory implied consent rights were violated, DMV may nevertheless consider in an administrative revocation hearing whether the defendant willfully refused a chemical analysis. See Powers v. Tatum, 196 N.C. App. 639, 645 (2009).
- When DMV administratively determines that the defendant did not willfully refuse a chemical analysis, the trial court may reconsider that issue for purposes of the criminal trial. See Brower v. Killens, 122 N.C. App. 685 (1996) (holding that while DMV and district attorney both represent interests of the State, earlier appellate decisions had determined that interests of district attorney are not adequately protected in administrative license revocation proceeding; thus, collateral estoppel does not apply to bar State’s litigation of issue in criminal trial).
- A defendant’s acquittal of impaired driving charges does not estop DMV from revoking his or her license based on a willful refusal to submit to a chemical analysis. See Gibson v. Faulkner, 132 N.C. App. 728 (1999).
- A district court’s determination as to whether a defendant refused a chemical analysis does not bar reconsideration of that issue by the superior court upon trial de novo. See State v. Petty, ___ N. C. App. ___, 711 S.E.2d 509, 511 (2011) (citing well-established rule that “trial de novo in the superior court is a new trial from beginning to end, on both law and facts, disregarding completely the plea, trial, verdict and judgment below” (internal citations omitted)); cf. 15A-953 (“no motion in superior court is prejudiced by any ruling upon . . . the subject in district court”).
Yesterday’s court of appeals opinion in State v. Macon, ___ N.C. App. ___ (May 7, 2013), added one more circumstance to the “no collateral bar” list. A superior court retrying a defendant following a mistrial in superior court is not bound by the earlier court’s ruling on the refusal issue. In Macon, the superior court in the defendant’s first trial refused to instruct the jury that the defendant’s refusal could be considered as evidence of her guilt, based upon the judge’s determination that the instruction was not supported by the evidence. A mistrial was declared when the jury could not reach a verdict. The defendant was retried before a different superior court judge. The judge in the later trial determined that the refusal instruction was warranted and delivered it to the jury, which found the defendant guilty of impaired driving. The court of appeals held that on retrial de novo, the judge was not bound by jury instruction rulings made during the first trial.
Open questions. One issue not clearly addressed by our courts is whether a superior court’s ruling pursuant to G.2. 20-16.2(e) that the DMV did not err in revoking the person’s license for a willful refusal precludes the defendant from litigating the issue of refusal in his or her criminal trial. The parties are the same, and the issues appear to be the same. The Powers court in dicta, however, indicated that the State was required to prove a refusal beyond a reasonable doubt, a standard that, if applied, obviously differs from the preponderance of the evidence standard applicable in the civil context. Moreover, while the State’s use of offensive collateral estoppel has been approved in other contexts, the courts have not explicitly sanctioned its application here.
It also is unclear whether a ruling by DMV that the person willfully refused that was not appealed to superior court would bar a defendant from relitigating that issue. While the parties arguably are the same, and the issue appears to be the same (though see the Powers caveat noted above), it is unclear whether our courts would apply collateral estoppel to bar the court from reconsidering an administrative agency’s decision adverse to the interests of a criminal defendant.