Pasut v. Robertson

767 S.E.2d 151 (Table)

Anthony Alessandro PASUT, Petitioner

v.Mike ROBERTSON, Commissioner of the Division of Motor Vehicles, Department of Transportation and Highway Safety, State of North Carolina, Respondent.

No. COA13–1245.

Court of Appeals of North Carolina.

Nov. 18, 2014.

The Robinson Law Firm, P.A., by Leslie S. Robinson, for petitioner-appellant.

Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for respondent-appellee.

GEER, Judge.

Petitioner Anthony Alessandro Pasut appeals from an order affirming the decision of the Division of Motor Vehicles (“DMV”) of the North Carolina Department of Transportation to revoke his license for one year for his willful refusal to submit to a chemical analysis of his breath after being arrested for impaired driving. On appeal, petitioner primarily challenges the hearing officer's conclusion that the arresting officer had reasonable grounds to believe that petitioner had committed an implied-consent offense.

We agree that the evidence does not support the hearing officer's finding that petitioner returned a positive result on an Alco–Sensor test and that the remaining findings—that petitioner had been speeding, had slurred speech, and had an odor of alcohol—are insufficient, without more, to establish that the officer had reasonable grounds to believe that petitioner was appreciably impaired. However, because the record contains evidence not addressed by the hearing officer that, if credited, could support the conclusion that the officer had reasonable grounds to believe that petitioner was impaired, we remand to the trial court for remand to the DMV for further findings of fact.

Facts

The evidence presented by respondent tended to show the following facts. On 14 March 2012, Trooper William Hardison of the North Carolina State Highway Patrol stopped petitioner's vehicle for speeding and seatbelt violations. Upon approaching petitioner's vehicle, Trooper Hardison detected an odor of alcohol and, when talking to petitioner, noticed that petitioner had slurred speech and glassy eyes. When Trooper Hardison asked petitioner to submit to an Alco–Sensor test, petitioner stated that he wanted to speak to his lawyer. Trooper Hardison then placed petitioner under arrest for driving while impaired and took him to the Pitt County Detention Center.

Trooper Hardison read petitioner his Intoxilyzer rights and provided petitioner with a written copy of those rights that petitioner signed at 7:46 p.m. Trooper Hardison waited approximately 30 minutes while petitioner called several people to serve as a witness for the test, but no witnesses came. At 8:18 p.m., Trooper Hardison asked petitioner to take the test. Petitioner stated that he wanted to talk to his lawyer before he took the test and that he would rather have a refusal on his record than a DWI. Petitioner did not make any attempts to take the test, so Trooper Hardison documented petitioner as having refused the test.

On 30 April 2012, the DMV sent petitioner an official notice that, in accordance with N.C. Gen.Stat. § 20–16.2, his driving privileges would be revoked for 12 months, effective 10 May 2012, for refusing to submit to a chemical test. Petitioner timely filed a request for a hearing to contest the revocation, and the suspension was rescinded pending the outcome of the hearing. A hearing was held on 24 August 2012 at which only Trooper Hardison testified.

In a decision dated the same day as the hearing, the hearing officer upheld the revocation of petitioner's license. On 17 September 2012, petitioner filed a petition for review of the hearing officer's decision in Pitt County Superior Court. On 15 July 2013, the trial court entered a judgment affirming the hearing officer's revocation of petitioner's driver's license. Petitioner timely appealed the judgment to this Court.

Discussion

On appeal from a DMV hearing, the superior court sits as an appellate court and determines “whether there is sufficient evidence in the record to support the Commissioner's findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.” N.C. Gen.Stat. § 20–16.2(e) (2013). This Court, in turn, reviews the superior court's decision to “ ‘(1) determin [e] whether the trial court exercised the appropriate scope of review and, if appropriate, (2) decid[e] whether the court did so properly.’ “ Johnson v. Robertson,––– N.C.App. ––––, ––––, 742 S.E.2d 603, 607 (2013) (quoting ACT–UP Triangle v. Comm'n for Health Servs.,345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) ).

The only issues for consideration at the DMV hearing were whether:

(1) Petitioner was charged with an implied-consent offense;

(2) Trooper Hardison had reasonable grounds to believe that petitioner had committed an implied-consent offense;

(3) Petitioner was notified of his rights as required by N.C. Gen.Stat. § 20–16.2(a) ; and

(4) Petitioner willfully refused to submit to a chemical analysis.

SeeN.C. Gen.Stat. § 20–16.2(d).

Admission of Evidence

Petitioner first argues that respondent's exhibits 1 through 4 should not be considered as part of the agency record because the hearing officer failed to admit the exhibits into evidence in the presence of petitioner at the DMV hearing. The exhibits included the documents mailed by Trooper Hardison to the DMV: two copies of Trooper Hardison's Affidavit and Revocation Report, the Chemical Test Rights form signed by petitioner, and the Intox EC/IR–II Test Ticket.

The hearing officer's decision expressly states that “Department Exhibits number 1 through 4 were admitted and made part of the record” and includes the exhibits in its “List of Exhibits.” However, petitioner asserts, and the hearing transcript confirms, that the exhibits were not mentioned, marked for identification, offered, or admitted into evidence during the hearing.

Petitioner argues that these exhibits should not have been a part of the agency record for consideration by the trial court or this Court because petitioner was not given the opportunity to object to and address the exhibits or to confront and cross-examine Trooper Hardison about the preparation, contents, accuracy, or execution of the exhibits. We agree.

Although the DMV, citing Lee v. Gore,365 N.C. 227, 717 S.E.2d 356 (2011), correctly points out that the exhibits are jurisdictional documents required for the DMV to have authority to revoke petitioner's license or conduct the hearing, the issue is not whether the exhibits should be included in the record on appeal, but rather, whether the exhibits should have been considered as substantive evidence by the hearing officer.

This Court has held that “the Rules of Evidence do not apply to DMV hearings held pursuant to § 20–16.2.” Johnson,––– N.C.App. at ––––, 742 S.E.2d at 606. Nevertheless, our Supreme Court has recognized that

[a] license to operate a motor vehicle is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked. However, once issued, a license is of substantial value to the holder and may be revoked or suspended only in the manner and for the causes specified by statute.

Joyner v. Garrett,279 N.C. 226, 235, 182 S.E.2d 553, 559 (1971). Therefore, at a hearing under N.C. Gen.Stat. § 20–16.2(d), “the licensee has the right to be confronted by any witness whose testimony is used against him and to cross-examine the witness if he so desires.” Joyner,279 N.C. at 235, 182 S.E.2d at 560.

The issue in Joynerwas whether the arresting officer's affidavit and revocation report could be considered as prima facieevidence that the petitioner willfully refused to submit to a chemical test. Id.at 234, 182 S.E.2d at 559. The only evidence presented by the DMV at the administrative hearing in Joynerwas the arresting officer's affidavit—the officer did not testify. Id.The Court in Joynerheld that if the petitioner objects to its introduction, the affidavit cannot be used as evidence against the petitioner because N.C. Gen.Stat. § 20–16.2 “does not make the law-enforcement officer's sworn report prima facieevidence that the arrested person wilfully refused to submit to the Breathalyzer test.” Joyner,279 N.C. at 234, 182 S.E.2d at 559. However, because the record failed to show that the petitioner either objected to the introduction of the sworn report or asserted his right to cross-examine the charging officer, the evidence was properly considered by the hearing officer. Id.

Here, in contrast to Joyner,Trooper Hardison did testify and petitioner was able to cross-examine him. However, because the exhibits were never offered into evidence at the hearing, petitioner was never given the opportunity to object to their admission or otherwise defend against them. We hold that under these circumstances it was error for the hearing officer to consider the exhibits. As requested by petitioner, we, therefore, limit our review of the DMV's decision to whether Trooper Hardison's testimony—the only evidence properly admitted at the hearing—supports the hearing officer's findings of fact and whether those findings support his conclusions of law.

Findings of Fact and Conclusions of Law

Under the “Findings of Facts” heading, the hearing officer's decision stated the following:

After consideration, I find that the following facts are not [sic] supported by substantial evidence:

1. Trooper William Hardison was traveling on 10th St. when he saw a vehicle driving 55/45.

Trooper Hardison stopped the vehicle for speeding.

3. Trooper Hardison approached the vehicle and noted the odor of alcohol.

4. [Petitioner's] speech was slurred and was given the alco censor [sic] test that was a positive reading.

5. [Petitioner] was placed under arrest and transported to the Pitt County intox room.

6. [Petitioner]...