I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?
Tag Archives: refusal
Myra Lynne Combs beat her DWI charges in court. The trial court held that the officer who stopped her didn’t have a lawful reason to do so. So the trial court suppressed all the evidence resulting from the stop, and the State dismissed the charges. But Combs’ license was revoked for a year anyway based on her refusal to submit to a breath test after she was arrested. Combs didn’t think that was right, so she took her case to the state court of appeals. Continue reading →
Several earlier posts (here, here and here) address the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving. Such a privilege allows a person to lawfully drive—for limited purposes at limited times—during the period of the revocation. I wrote here about DMV’s authority to revoke a person’s driver’s license for twelve months for willfully refusing a chemical analysis. I mentioned in passing here the availability of a limited driving privilege to authorize some driving during that period of revocation. Because I haven’t yet discussed the particulars of that privilege, I thought I’d do so now.
North Carolina’s implied consent laws, like their sister-provisions in other states, are designed to coerce persons suspected of driving while impaired and other alcohol-related offenses to participate in chemical testing without being physically forced to do so by the police. (See this earlier post on the theory of implied consent). The incentive for defendants to “voluntarily” submit to compulsory testing is provided by their desire to remain licensed; defendants are informed that if they refuse testing, their driver’s licenses will be revoked for a year. See G.S. 20-16.2(a)(1) (requiring that before a chemical analysis is administered a defendant be advised: “Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances . . . .”). Obviously, the incentive to submit to testing would be greatly reduced if the ensuing refusal-based revocation had little impact on a person’s ability to drive. For that reason, it is not surprising that while G.S. 20-16.2(e1) authorizes judges to issue limited driving privileges to authorize driving for certain essential purposes during a refusal-based revocation period, that authority is closely circumscribed.
The most significant of these restrictions is that a person whose license is revoked for willfully refusing chemical testing becomes eligible for a limited driving privilege only after his or her license has been revoked for at least six months for the refusal and the underlying charge has been resolved. G.S. 20-16.2(e1).To satisfy the latter requirement, the underlying charge must have been disposed of other than by a conviction or the person must have been convicted of impaired driving under G.S. 20-138.1 and punished at Level Three, Four, or Five. If the person was convicted, he or she must have complied with at least one of the mandatory conditions of probation for the level of punishment imposed.
To be eligible for a limited driving privilege, the person also must satisfy the following requirements:
- At the time of the refusal, he or she must have held a valid driver’s license or a license that had been expired for less than a year;
- At the time of the refusal, he or she must not have been convicted within the preceding seven years of an offense involving impaired driving;
- At the time of the instant refusal, he or she must not have willfully refused to submit to a chemical analysis under G.S. 20-16.2 in the preceding seven years;
- Subsequent to the refusal,he or she must not have any unresolved pending charges for or additional convictions of an offense involving impaired driving;
- He or she must have obtained a substance abuse assessment from a mental health facility and have successfully completed any recommended training or treatment program; and
- He or she must furnish proof of financial responsibility or establish that he or he is exempt from this requirement. A person who does not own a currently registered motor vehicle and who does not operate uninsured non-fleet private passenger vehicles owned by others—and who signs a certificate to this effect—is not required to furnish proof of financial responsibility.
If the refusal occurred in a case involving death or criminal injury to another person, no limited driving privilege may be issued.
The application and hearing provisions inG.S. 20-179.3that apply to limited driving privileges issued to militate against DWI-conviction-based revocations also apply to limited driving privileges issued under G.S. 20-16.2(e1). Thus, an application for a limited driving privilege under G.S. 20-16.2 must be filed with the clerk in duplicate, and a hearing on the petition may not be scheduled until a reasonable time after the clerk files a copy of the application with the district attorney’s office. Unlike hearings for limited privileges to counteract DWI-conviction-based revocations, which must be held by the judge who presided at trial if that judge is assigned to the district or set of districts, limited driving privilege hearings under G.S. 20-16.2(e1) may be held by any district court judge in the district in which the refusal occurred if the case was finally disposed of in district court. If the case was finally disposed of in superior court, the limited driving privilege hearing may be held by any superior court judge in the district or set of districts in which the refusal occurred. See G.S. 20-16.2(e1).
A limited driving privilege issued pursuant to G.S. 20-16.2(e1) authorizes a person to drive if the person’s license is revoked solely under G.S. 20-16.2 and G.S. 20-17(a)(2) (requiring revocation upon conviction of impaired driving). If the person’s license is revoked under any other provision, such as G.S. 20-13.2(b) or (c), which impose separate license revocations for persons under 21 who are convicted of impaired driving or who willfully refuse a chemical analysis, any limited driving privilege issued under G.S. 20-16.2(e1) is invalid.
Like the hearing provisions of G.S. 20-179.3, the driving restrictions that apply to limited driving privileges issued under that statute apply to limited driving privileges issued under G.S. 20-16.2(e1). Thus, such a privilege must restrict the applicant to essential driving related to his or her employment or education, maintenance of his or her household, community service ordered as a condition of probation, and emergency medical care. While the limited privilege may authorize driving for emergency medical care at any time, it may permit driving for maintenance of the applicant’s household only during standard working hours, which are 6:00 a.m. until 8 p.m. on Monday through Friday. The limited driving privilege may authorize driving for work-related purposes during standard working hours without specifying the times and routes that the driving must occur.
An applicant for a G.S. 20-16.2(e1) limited driving privilege who is required to drive during nonstandard working hours for an essential work-related purpose or to perform community service ordered as a condition of probation must present documentation of that need to the judge. A limited driving privilege authorizing such driving outside nonstandard working hours must restrict that driving to the times and routes required.
Like limited privileges issued under G.S. 20-179.3, limited driving privileges issued pursuant to G.S. 20-16.2(e1) must prohibit the driver from consuming alcohol while driving and from driving at any time while he or she has remaining in his or her body any alcohol or controlled substance previously consumed, unless the controlled substance was lawfully obtained and taken in therapeutically appropriate amounts. If, notwithstanding the person’s willful refusal to submit to testing, a chemical analysis was obtained reflecting an alcohol concentration of 0.15 or more, see G.S. 20-16.2(c) (providing that a “refusal does not preclude testing under other applicable procedures of law”), the limited privilege restrictions applicable to high-risk drivers (discussed here) must be imposed.
The Administrative Office of the Courts has promulgated a form order,AOC-CR-313, for use by judges in granting limited driving privileges under G.S. 20-16.2(e1). In addition to its obvious utility to judges, the form, which references the statutory eligibility criteria and the applicable restrictions on driving, can serve as a helpful checklist for applicants seeking this form of relief.
I blogged here about the North Carolina Court of Appeals’ initial opinion in Lee v. Gore, ___ N.C. App. ___ (January 19, 2010), holding that DMV lacked authority to revoke the petitioner’s driving privileges for refusing a chemical analysis upon receipt of an affidavit that failed to allege a willful refusal. DMV filed a petition for rehearing, which the court granted. The court of appeals filed a superseding opinion in Lee v. Gore this week with the same holding. Judge Wynn dissented, however, securing for DMV an appeal of right to the state supreme court.
The facts are discussed in some detail in the earlier post, so I won’t recount them again here. Upon rehearing, DMV argued that it could suspend a person’s driving privilege for refusing to submit to a chemical analysis and that there was no requirement that the refusal be willful. As support for its contention, DMV pointed to the statutorily prescribed notice of implied consent rights which require a chemical analyst to inform a defendant charged with an implied consent offense that his or her driver’s license will be revoked if he or she refuses a test. DMV further argued that G.S. 20-16.2(d), which affords a defendant the right to a hearing before DMV to contest a refusal-based revocation, was “a statutory embodiment of due process protections for persons accused of willfully refusing chemical analysis,” and that the absence of a properly executed affidavit did not prevent DMV from revoking a person’s driving privileges.
The court rejected DMV’s argument, citing precedent establishing that a person’s refusal to submit to a chemical analysis must be willful in order to suspend the person’s driving privileges. The court further rejected the notion, implicit in the State’s argument, that a refusal implies willfulness and therefore provides a sufficient basis for revocation. The court reasoned that if the State’s argument prevailed, DMV could revoke for mere refusal, but would only be required to provide notice and a hearing for a revocation resulting from a willful refusal—a result that it said could not have been intended by the General Assembly.
This analysis begs the question: What’s the difference between a willful refusal and a refusal? A refusal is “ ‘the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.’ ” Joyner v. Garrett, 279 N.C. 226, 233 (1971) (quoting Black’s Law Dictionary (4th ed. 1951)). A willful refusal occurs when a person (1) is aware that he or she has a choice to take or refuse test, (2) is aware of the time limit within which he or she must take the test, and (3) voluntarily elects not to take the test or knowingly permits the prescribed thirty minute time limit to expire before electing to take the test. Etheridge v. Peters, 301 N.C. 76, 81 (1980). In essence, a willful refusal is a refusal that occurs after the defendant is advised of his or her implied consent rights and is asked to submit to a chemical analysis. See, e.g., Rice v. Peters, 48 N.C. App. 697, 700-01 (1980) (holding that purpose of refusal-revocation statute is “fulfilled when the petitioner is given the option to submit or refuse to submit to a breathalyzer test and his action is made after having been advised of his rights in a manner provide by the statute”).
The Lee court held that the sending to DMV of the test record ticket, on which the word “REFUSED” was printed and circled, did not satisfy the requirement that the affidavit include an affirmative statement of the person’s willful refusal, even though the affidavit referenced the attached test record ticket.
While the new opinion omits troubling language from the earlier opinion stating that the test record ticket could not be considered part of the affidavit, the court nevertheless held that such a form “is not a substitute for a ‘properly executed affidavit’ as required by G.S. 20-16.2(c1).” As it did earlier, the court again held that the officer’s failure to check the box on the form affidavit indicating a willful refusal resulted in DMV’s receipt of an affidavit that did not meet the statutory requirements. For that reason, DMV had no authority to revoke the petitioner’s driving privileges and the subsequent hearing could not cure the shortcomings of the affidavit as the hearing never should have occurred.
Judge Wynn dissented on the basis that the petitioner suffered no prejudice. The dissent characterized the majority opinion as at odds with the holding in Ferguson v. Killens, 129 N.C. App. 131 (1998). In Ferguson, the court held that DMV’s failure to notify the petitioner that his license was revoked until 99 days after the alleged refusal, which arguably violated the statutory requirement that DMV “expeditiously” provide such notice, did not require that the revocation be rescinded. Ferguson rejected the petitioner’s argument that rescission was required on the basis that the petitioner failed to show that he was prejudiced by the late notice and that expeditious notice was not among the five requirements listed in G.S.20-16.2(d) for consideration at a refusal-revocation hearing.
While the Lee majority distinguished Ferguson on the basis that the requirement for expeditious notice did not affect DMV’s authority to revoke the license in the first instance, the dissent rejected that distinction, noting that because the request for a hearing suspends the revocation, the petitioner in Lee retained his license pending the hearing, just like the petitioner in Ferguson. Thus, the dissent reasoned, the petitioner in Lee bore the burden of establishing that he was prejudiced by the improperly executed affidavit—a burden that he failed to satisfy.
The dissenting opinion affords DMV an appeal of right to the state supreme court. And even if that court adopts the majority view that, without an affidavit averring a willful revocation, DMV cannot act, I wonder whether the affidavit in Lee could be construed to make such an averment. After all, a “willful refusal” is a refusal after notification of implied consent rights. And the chemical analyst averred on the affidavit (box 7) that he “informed the driver orally and also gave notice in writing of the rights specified in G.S. 20-16.2(a)” and that he “completed informing the driver of the rights as indicated on the attached [test record ticket].” That statement, along with the incorporated test record ticket, arguably establishes a willful refusal.
Nevertheless, unless and until the supreme court says otherwise, Lee v. Gore establishes that each required allegation of G.S. 20-16.2(c1) must be contained on the face of the form affidavit and revocation report before DMV can act to revoke a petitioner’s license.
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.