Sermons v. Peters

MARTIN (Robert M.), Judge. The sole question raised on this appeal is whether the court below was correct in concluding that the petitioner did not wilfully refuse to submit to a breathalyzer test. “Refusal” is defined as “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, Comr. of Motor Vehicles, 279 N.C. 226, 233, 182 S.E. 2d 553, 558, rehearing denied, 279 N.C. 397 (1971), quoting Black’s Law Dictionary (4th Ed. 1951); Etheridge v. Peters, Comr. of Motor Vehicles, 45 N.C. App. 358, 263 S.E. 2d 308 (1980), affirmed 301 N.C. 76 (1980). “Willful” is defined as “voluntary; intentional.” Black’s Law Dictionary 1434 (5th ed. 1979). The term “wilful refusal” embraces “the concept of a conscious choice purposely made.” Joyner v. Garrett, supra at 233, 182 S.E. 2d at 558. The suspension of petitioner’s driver’s license is no part of the punishment for operating under the influence. The proceeding is civil and not criminal in nature. “Wilful refusal” is a necessary requirement under N.C. Gen. Stat. § 20-16.2(c) and the trial court has the duty of judicially determining this question. It was not incumbent upon the officers to explain the [150] statutory rights relative to the granting of a limited driving privilege upon conviction of the offense charged. Whether or not the petitioner would have taken the breathalyzer test had he been aware of the law is irrelevant. Petitioner’s testimony indicated he was told that he would automatically lose his license for six months if he refused to take the breathalyzer test. The evidence shows that he was then afforded all his rights as provided by N.C. Gen. Stat. § 20-16.2(a), and he “consciously and purposely” declined the request to take the test. Joyner v. Garrett, supra. Moreover, the trial court’s findings of fact dictate the conclusion that petitioner wilfully refused to take the breathalyzer test within the meaning of the statute. Thus, the conclusion of the trial judge that the petitioner did not wilfully refuse to take the breathalyzer test is not supported by the evidence or by his findings of fact. It is an erroneous conclusion which must be reversed. The cause is remanded to the Superior Court for the entry of an order concluding that the petitioner is subject to the revocation of his operator’s license pursuant to N.C. Gen. Stat. § 20-16.2 and reinstating the revocation order of the Division of Motor Vehicles. Reversed and remanded. Judges Hedrick and Clark concur.