Helms v. Powell

BRITT, Judge. Did the trial court err in concluding that petitioner is not eligible for a limited driving privilege? We answer in the negative. G.S. 20-138 provides that: “(a) It is unlawful and punishable as provided in G.S. 20-179 for any person who is under the influence of intoxi- *268 eating liquor to drive or operate any vehicle upon any highway or any public vehicular area within this State. “(b) It is unlawful for any person to operate any vehicle upon any highway or any public vehicular area within this State when the amount of alcohol in such person’s blood is 0.10 percent or more by weight and upon conviction if such conviction is a first conviction under this section, he shall be eligible for consideration for limited driving privileges pursuant to the provisions of G.S. 20-179 (b) ; provided that second and subsequent convictions under this section shall be punishable as provided in G.S. 20-179 (a) (2) and (3). An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence.” The language crucial to this appeal is that which states that upon conviction for operating a vehicle upon any highway when the amount of alcohol in a person’s blood is 0.10 percent or more by weight and “if such conviction is a first conviction under this section (emphasis added), he shall be eligible for consideration for limited driving privileges pursuant to the provisions of G.S. 20-179 (b) Petitioner contends that a “first conviction under this section” specifically refers to a first conviction of operating a motor vehicle on a public highway when the amount of alcohol in that person’s blood is 0.10 percent or more by weight. Therefore, since this is petitioner’s first conviction for a violation of G.S. 20-138 (b), he urges that he is eligible for a limited driving privilege as granted by the district court. The commissioner argues that a defendant is eligible for a limited driving privilege only upon his first conviction of either offense under the quoted statute. He contends that a “first conviction under this section” means a conviction under either (a) or (b). Upon a second conviction under the statute, a defendant would be ineligible for a limited driving privilege. We agree with this argument. In construing the quoted statute, we find it necessary to determine the intent of the General Assembly as the legislative intent is controlling in the construction of a statute. Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E. 2d 22 (1967). *269 The last sentence of G.S. 20-138 (b) states that “An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence.” We think the use of the word “subsection” is a strong indication that the General Assembly intended (a) and (b) as separate subsections. Moreover, G.S. 20-138 was amended in 1974 by Chapter 1081, Session Laws of 1973 (Second Session 1974). Chapter 1081 provides that: “G.S. 20-138 as same appears in the 1973 Cumulative Supplement to Volume 1C of the General Statutes is hereby amended by designating the existing section as subsection ‘ (a) ’ and by adding a new subsection to be designated subsection ‘(b)’ and to read as follows . . . . ” In G.S. 20-138 the word “section” is used twice while “subsection” is used once. We think it is apparent from the distinctive use of the words “section” and “subsection” that the Assembly intended them to have different applications in the enforcement of this statute. We think the Assembly intended the term “section” to refer to G.S. 20-138 in its entirety while the term “subsection” refers to either G.S. 20-138 (a) or (b) individually. Thus, a “first conviction under this section” is a conviction of either offense provided by the statute. Under petitioner’s contentions, an individual would be eligible for a limited driving privilege upon his first conviction of driving with a blood alcohol content of 0.10 percent or more by weight regardless of the number of convictions he might have for driving under the influence during the previous ten years. Under the normal rules of statutory construction, the language of a statute will be interpreted to avoid absurd or il-iogical consequences. Person v. Garrett, 280 N.C. 163, 184 S.E. 2d 873 (1971); Hobbs v. Moore County, 267 N.C. 665, 149 S.E. 2d 1 (1966). We think petitioner’s interpretation of the statute would produce illogical results that were not intended by the Assembly. Petitioner also contends that his plea of guilty was tendered in good faith and in reliance upon the advice received from the assistant chief hearing officer of the Division of Motor Vehicles, therefore, the commissioner should be estopped from revoking the limited driving privilege. Although we recognize that the advice might have been given and received in good faith, we do not think that the circumstances dictate any relief *270 to petitioner. The interpretation given a statute by an administrative agency or official is to be given due consideration, but will not prevail when it conflicts with an interpretation given by the courts. Faizan v. Insurance Co., 254 N.C. 47, 118 S.E. 2d 303 (1961). Reliance upon the advice of a hearing officer of the Division of Motor Vehicles, even in good faith, is not sufficient legal authority to give rise to any equitable relief in this case. For the reasons stated, the judgment appealed from is Affirmed. Chief Judge Brock and Judge Morris concur.