Etheridge v. Peters

HEDRICK, Judge. G.S. § 20-16.2 in pertinent part provides: Mandatory revocation of license in event of refusal to submit to chemical tests; right of driver to request test. — (a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent, ... to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at — 360 — the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. The law-enforcement officer shall designate which of the aforesaid tests shall be administered. The person arrested shall forthwith be taken before a person authorized to administer a chemical test and this person shall inform the person arrested both verbally and in writing and shall furnish the person a signed document setting out: (1) That he has a right to refuse to take the test; (2) That refusal to take the test will result in revocation of his driving privilege for six months; (3) That he may have a physician, qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of the law-enforcement officer; and (4) That he has the right to call an attorney and select a witness to view for him the testing procedures; but that the test shall not be delayed for this purpose for a period in excess of 30 minutes from the time he is notified of his rights. (c) The arresting officer, in the presence of the person authorized to administer a chemical test, shall request that the person arrested submit to a test described in subsection (a). If the person arrested willfully refuses to submit to the chemical test designated by the arresting officer, none shall be given. However, upon the receipt of a sworn report of the arresting officer and the person authorized to administer a chemical test that the person arrested, after being advised of his rights as set forth in subsection (a), willfully refused to submit to the test upon the request of the officer, the Division shall revoke the driving privilege of the person arrested for a period of six months. [Emphasis added.] — 361 — In Seders v. Powell, 298 N.C. 453, 259 S.E. 2d 544 (1979), a similar case involving facts virtually identical to those in the case at bar, our Supreme Court, in affirming the decision of this Court reported at 39 N.C. App. 491, 250 S.E. 2d 690 (1979), enunciated the following principles with respect to G.S. § 20-16.2: The thirty-minute time limit referred to in G.S. § 20-16.2(a) (4) is absolute, and a person accused under the statute has no right to delay the test in excess of thirty minutes while waiting for his attorney to arrive or to return his call. [See also State v. Lloyd, 33 N.C. App. 370, 235 S.E. 2d 281 (1977).] Thus, a person who delays taking the test for more than thirty minutes in order to await an attorney runs the risk of having to face the consequences when the clock stops: that is, his failure to submit to the test will be recorded on the officer’s report as a refusal. With respect to such a failure, the Seders Court stated: “Plaintiff’s action constituted a conscious choice purposefully made and his omission to comply with this requirement of our motor vehicle law amounts to a willful refusal.” Seders v. Powell, supra at 461, 259 S.E. 2d at 550 [Citations omitted.] [Our emphasis.] The Seders decision further established beyond question that a person enjoys no constitutional right to confer with counsel before deciding whether to submit to the breathalyzer test. Moreover, it has been held that the State is not constitutionally required to give an accused an option to refuse the test. That is, the State can require that the test be administered without any delay or process other than reasonable grounds to believe the driver has violated the law. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966). Clearly, then, allowing the driver thirty minutes time to decide whether to submit to the test, while providing that he is deemed to have refused at the expiration of the thirty minutes, is a constitutionally sound principle. In the present case, the trial court made the following unchallenged findings of fact: Findings of Fact 4. Petitioner was arrested upon reasonable grounds at 8:45 p.m. on March 18, 1979 [sic] by Trooper Larry DuBose of — 362 — the North Carolina Highway Patrol in Craven County and charged with the offense of driving under the influence of intoxicating liquor. 5. That the petitioner was forthwith taken before Trooper Johnnie [sic] W. Brown of the North Carolina State Highway Patrol, a duly licensed and qualified breathalyzer operator, and in the presence of Trooper Brown, the petitioner was requested by Trooper DuBose to submit to a chemical test of breath. 6. That Trooper Brown informed the petitioner verbally and in writing, furnished a signed document setting out all of the petitioner’s rights pertaining to the breathalyzer test under the provisions of G.S. 2046.2(a). Trooper Brown completed reading the rights form to the petitioner at 9:19 p.m. 7. Petitioner . . . indicated to Trooper Brown that he would like to contact an attorney or have an attorney present during the test. 8. Prior to and after being advised of his rights with respect to the breathalyzer test, petitioner made calls from the telephone located within the Magistrate’s Office in New Bern, North Carolina, in an attempt to contact an attorney. 10. Petitioner eventually called the home of Mr. Lamar Sledge, an attorney practicing law in New Bern, North Carolina. Mr. Sledge was not at home so a message was left. Mr. Sledge received the message when he returned home. 11. Upon being advised that he had received a call from someone at the Magistrate’s office, Mr. Sledge contacted the Magistrate’s office and was told that a person named Etheridge had asked for him to come to the Magistrate’s office and that Mr. Etheridge had been charged with driving under the influence. Mr. Sledge immediately proceeded to the breathalyzer room. 12. Trooper Brown offered the breathalyzer test to petitioner at the conclusion of the required 20-minute waiting period and at the end of the 30-minute waiting period. — 363 — 13. At the end of the 30-minute period Officer Brown proceeded to disassemble the breathalyzer machine. Within two to four minutes after the 30-minute period expired Mr. Sledge arrived. The officer had not completed the process of disassembling the breathalyzer machine. He was in the process of taking the ampules out when the attorney arrived. 14. Mr. Sledge asked to speak with petitioner. Officers] DuBose and Brown were there and indicated he could talk with the petitioner. . . . 15. Within two or three minutes after he arrived petitioner, upon advice of Mr. Sledge, indicated a willingness to take the test. 16. Officer Brown refused to administer the test at that time. This was approximately thirty-five minutes after the petitioner was advised of his rights with respect to the breathalyzer test. 17. Trooper Brown recorded the test results as a refusal on the part of the petitioner. 18. Petitioner’s request to take the test was made within five minutes of the expiration of the 30-minute period, and was made immediately after consultation with his attorney. By exceptions numbers 2 and 4, respondent attacks the following finding and conclusion: 19. Petitioner did not at any time refuse to take the test. [Finding of Fact.] 3. Petitioner herein, Mr. Gary D. Etheridge, did not willfully refuse to submit to a breathalyzer test. [Conclusion of Law.] Regardless of the label, the holding of the trial judge that the petitioner did not willfully refuse to take the breathalyzer test under the circumstances of this case is an erroneous conclusion. The unchallenged findings of fact when viewed in light of the controlling principles enunciated by Justice Carlton in Seders, dictate the conclusion that petitioner did willfully refuse to take the breathalyzer test within the meaning of the statute. He was informed of his rights, and he consciously chose to run the risk of — 364 — waiting too long. As stated in Seders, such action amounts to a willful refusal. For the reasons stated, the judgment of the Superior Court must be reversed. The cause is remanded to that court for the entry of an order based on the unchallenged findings of fact concluding that the petitioner willfully refused to take the breathalyzer test within the meaning of G.S. § 20-16.2, and reinstating the Order of the Division of Motor Vehicles revoking petitioner’s license. Reversed and remanded. Judge CLARK concurs. Judge VAUGHN dissents.