Lee v. Gore and Checking the Box

In an implied consent case in which a defendant is asked to submit to a chemical analysis, the law enforcement officer and chemical analyst (who often are the same person) complete an affidavit averring that the implied consent testing procedures have been followed and stating the results of the test or that the person willfully refused to submit to a chemical analysis. This affidavit, which also serves as a revocation report used in determining whether the defendant’s license will be civilly revoked pursuant to G.S. 20-16.5, typically is sworn and subscribed before the magistrate at the initial appearance.  AOC-CVR-1A is the current form affidavit and revocation report. The form is designed to allow the chemical analyst to incorporate by reference the test record ticket from the breath-testing instrument, which indicates a refusal or a particular alcohol concentration.

When a person refuses to submit to a chemical analysis, the law enforcement officer must immediately mail the affidavit to DMV.  Upon receiving a “properly executed affidavit,” DMV must expeditiously notify the person charged that his or her license to drive is revoked for 12 months.

Among the opinions issued this week by the North Carolina Court of Appeals was Lee v. Gore, a case in which the court held that DMV lacked jurisdiction to revoke the petitioner’s driver’s license when the officer failed to check the box on the form affidavit indicating that petitioner refused the chemical analysis.

Richard Lee, a Florida resident and licensee was driving in Wilkes County on August 22, 2007, when he was stopped by a police officer.  The officer arrested Lee for impaired driving and took him to an intake center for a chemical analysis of his breath. Lee did not submit to the analysis, and the officer (who also was a chemical analyst) marked “refused” on the test record ticket for the Intoxilyzer 5000, designated as form DHHS 3908.  The officer executed an affidavit and revocation report before the magistrate on AOC-CVR-1 (which has since been replaced by AOC-CVR-1A). Section 14 of that form contained a box the chemical analyst could check to aver that “[t]he driver willfully refused to submit to a chemical analysis as indicated on the attached . . . DHHS 3908.”  This box was left blank on the version of the form sworn to and filed with the magistrate. The officer mailed a copy of the sworn affidavit to DMV, as required by G.S. 20-16.1(c1).

When DMV received the affidavit, it notified Lee that his North Carolina driving privileges would be revoked for 12 months. Lee requested a hearing to contest the revocation. Oddly, the affidavit and revocation report produced by DMV at the hearing had an “x” marked in the box at section 14, a notation not included on the filed copy of the form. The officer testified at the hearing that the “preventive maintenance and the refuse box was left unchecked on my particular copy,” and the copy he gave Lee.  He further stated that he didn’t “know whether the magistrate caught it and checked it, or if it was checked in Raleigh.” (As an aside, if the magistrate had made the change, it would have been reflected on the officer’s copy as well as the copy the officer mailed to DMV, both of which are returned to the law enforcement officer after execution.)

The officer said that he later altered “[his] copy only” by adding the preventative maintenance date and the refusal information. The officer affirmed that he “never went back and told the magistrate or gave anybody authority to change that affidavit.”

The hearing officer determined that Lee’s driving privileges were properly revoked, a decision affirmed by the superior court. Lee appealed to the court of appeals, which vacated the superior court’s order and remanded the case to DMV for reinstatement of Lee’s driving privileges. The appellate court wrote that the officer “testified that he did not check the box for section fourteen and the affidavit he sent to [DMV] did not have the box for section fourteen checked,” though DMV argued strenuously in its briefs that the officer, and not anyone at DMV, altered the affidavit after it was executed.

The court of appeals held that the “plain language” of G.S. 20-16.2(d) requires that DMV receive a “properly executed affidavit” that satisfies the requirements of G.S. 20-16.2(c1) before it “is vested with the authority to revoke a driver’s license.” The court rejected DMV’s argument that the mailing to DMV of the test record ticket marked “refused” along with the affidavit satisfied the requirement that the sworn affidavit include an affirmative statement of the driver’s willful refusal, holding that the test record ticket was not a substitute for the properly executed affidavit mandated by statute. Furthermore, the court found “no evidence” presented at the DMV hearing that the officer showed the magistrate the test record ticket or even that he brought it with him when he executed the affidavit.

The court wrote that even if the test record ticket could be considered part of the affidavit “which construing the plain language of [G.S.] 20-16.2 we hold it cannot,” there was no evidence the magistrate knew of the form or knew it was marked as a refusal when the affidavit was executed.  The court went on to state that there was no evidence that the officer swore before the magistrate in any manner that Lee had willfully refused the chemical analysis.

I read the record differently.  The box in section 7 of the form was checked on everyone’s copy, verifying that the officer informed Lee of his implied consent rights “as indicated on the attached . . . DHHS 3908.” Moreover, Lee’s driving record, included in the record on appeal, reflects that the magistrate must have received evidence that Lee refused the chemical analysis.  The magistrate imposed a 30-day civil license revocation, which required a finding that Lee had an alcohol concentration above the legal limit or that he willfully refused a chemical analysis.

For Lee, the court’s analysis resulted in reinstatement of his North Carolina driving privileges. But what are the implications more generally? First, to establish authority for revocation, the affidavit must be filled out correctly. The court’s sweeping statement about a test record ticket not comprising part of the affidavit might cause one to question whether the test record ticket itself must be separately sworn and subscribed even if the section incorporating the form by reference is checked, though I doubt the court would apply that principle to reject an affidavit in a case in which the appropriate incorporating box is checked. Second, errors in an affidavit can’t be cured by simply altering the previously sworn version—a proposition that is hardly surprising.