{ "id": 11919615, "name": "STEPHEN MOORE BROWER, Petitioner-Appellee v. ALEXANDER KILLENS, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent-Appellant", "name_abbreviation": "Brower v. Killens", "decision_date": "1996-06-18", "docket_number": "No. COA95-1015", "first_page": "685", "last_page": "691", "citations": [ { "type": "official", "cite": "122 N.C. App. 685" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "364 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358903 ], "year": 1988, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0651-01" ] }, { "cite": "599 F.2d 1048", "category": "reporters:federal", "reporter": "F.2d", "year": 1979, "opinion_index": 0 }, { "cite": "455 F. Supp. 338", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4028715 ], "year": 1978, "pin_cites": [ { "page": "342-343", "parenthetical": "upholding the constitutionality of automatic license revocation statute because officer must have probable cause to arrest" } ], "opinion_index": 0, "case_paths": [ "/f-supp/455/0338-01" ] }, { "cite": "49 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "652", "parenthetical": "burden of proof in ordinary civil actions is preponderance of the evidence" } ], "opinion_index": 0 }, { "cite": "229 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165913 ], "year": 1948, "pin_cites": [ { "page": "342", "parenthetical": "burden of proof in ordinary civil actions is preponderance of the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0340-01" ] }, { "cite": "398 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "340", "parenthetical": "State must establish every element of a criminal charge beyond a reasonable doubt" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527515 ], "year": 1990, "pin_cites": [ { "page": "711", "parenthetical": "State must establish every element of a criminal charge beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0706-01" ] }, { "cite": "163 N.W.2d 780", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 5228741 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/neb/183/0644-01" ] }, { "cite": "319 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "147" }, { "page": "147" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "311 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679919 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0727-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "182 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "562", "parenthetical": "license revocation statute is designed to promote breathalyzer examinations which supply evidence directly related to state's enforcement of motor vehicle laws" } ], "opinion_index": 0 }, { "cite": "279 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566492 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "239", "parenthetical": "license revocation statute is designed to promote breathalyzer examinations which supply evidence directly related to state's enforcement of motor vehicle laws" }, { "page": "239" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0226-01" ] }, { "cite": "451 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "865", "parenthetical": "citing N.C. Const. art. IV, \u00a7 13(1)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556344 ], "year": 1994, "pin_cites": [ { "page": "368", "parenthetical": "citing N.C. Const. art. IV, \u00a7 13(1)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0358-01" ] }, { "cite": "394 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "266", "parenthetical": "quoting 46 Am. Jur. 2d Judgments \u00a7 532 (1969)" }, { "page": "266", "parenthetical": "collateral estoppel applies only if interest of instant party is fully protected in previous proceeding" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526304 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "76", "parenthetical": "quoting 46 Am. Jur. 2d Judgments \u00a7 532 (1969)" }, { "page": "76-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0070-01" ] }, { "cite": "182 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "279 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566862 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "311" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0307-01" ] }, { "cite": "251 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "726", "parenthetical": "\" 'Probable cause and \"reasonable ground to believe\" are substantially equivalent terms.' \" (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971))" }, { "page": "726" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553598 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "571", "parenthetical": "\" 'Probable cause and \"reasonable ground to believe\" are substantially equivalent terms.' \" (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971))" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0567-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(d)(2)" } ], "opinion_index": 0 }, { "cite": "442 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1994, "pin_cites": [ { "page": "139" }, { "page": "139" }, { "page": "139" }, { "page": "139" }, { "page": "139" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527672 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "439" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0435-01" ] } ], "analysis": { "cardinality": 683, "char_count": 14306, "ocr_confidence": 0.771, "pagerank": { "raw": 4.422824054026218e-07, "percentile": 0.9205596542501127 }, "sha256": "59c69daa603f9e42fd9c2bb86306619ff3b12b7138878ccf0b151afd8a8c0129", "simhash": "1:011130da63effe1c", "word_count": 2258 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "STEPHEN MOORE BROWER, Petitioner-Appellee v. ALEXANDER KILLENS, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent-Appellant" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nRespondent Alexander Killens, Commissioner of the North Carolina Division of Motor Vehicles (DMV), appeals from order of the trial court finding DMV was collaterally estopped from litigating the existence of probable cause to arrest petitioner Stephen Brower (Brower).\nOn 10 February 1994 Brower was stopped by Trooper R.D. Mendenhall while traveling on Interstate 40 in Guilford County and subsequently arrested for operating his vehicle under the influence of an impairing substance. Trooper Mendenhall offered Brower the opportunity to submit to chemical analysis of his breath. Brower was marked as having refused such analysis.\nAs a result of the alleged refusal, DMV revoked Brower\u2019s license. Brower requested, and received, an administrative hearing to contest the automatic license revocation. By letter dated 24 June 1994, the revocation was upheld. On 30 June 1994 Brower instituted the present action for de novo review of the revocation (case II).\nIn September 1994 the criminal case against Brower for driving while impaired was called in Guilford County District Court (case I). At trial Brower challenged his arrest for lack of probable cause. After a full hearing, the trial court, by order issued 14 September 1994, concluded Trooper Mendenhall had insufficient probable cause to arrest Brower. The trial court suppressed the tainted evidence and granted Brower\u2019s motion to dismiss.\nOn 20 October 1994 Brower amended his complaint in case II to assert collateral estoppel as an affirmative defense to the license revocation. By order filed 23 June 1995 the trial court concluded DMV was estopped from relitigating whether or not Trooper Mendenhall had probable cause to arrest Brower for driving while impaired.\nOn appeal DMV contends the trial court erred by: (1) concluding DMV was collaterally estopped from relitigating the probable cause issue; and (2) signing an invalid order.\nI.\nWe first consider whether DMV is collaterally estopped from relit-igating the existence of probable cause to arrest Brower for driving while impaired.\n\u201cThe doctrine of collateral estoppel provides that a party will be estopped from relitigating an issue where 1) the issue has been necessarily determined previously and 2) the parties to that prior action are identical to, or in privity with, the parties in the instant action.\u201d State v. O\u2019Rourke, 114 N.C. App. 435, 439, 442 S.E.2d 137, 139 (1994). In the present case, the lack of probable cause to arrest was clearly established in case I; and Brower was the defendant in both case I and case II. Further, to sustain Brower\u2019s license revocation, DMV must establish Trooper Mendenhall had reasonable grounds to believe Brower was driving while impaired, see N.C. Gen. Stat. \u00a7 20-16.2(d)(2) (1993), which is \u201csubstantially equivalent\u201d to a probable cause determination, see In re Gardner, 39 N.C. App. 567, 571, 251 S.E.2d 723, 726 (1979) (\u201c \u2018Probable cause and \u201creasonable ground to believe\u201d are substantially equivalent terms.\u2019 \u201d (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971))). It follows therefore that our consideration of the collateral estoppel issue is necessarily limited to whether DMV in case II is in privity with the prosecution in case I.\nPrivity exists where one party is \u201cso identified in interest with another that [it] represents the same legal right [as the other].\u201d County of Rutherford ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 76, 394 S.E.2d 263, 266 (1990) (quoting 46 Am. Jur. 2d Judgments \u00a7 532 (1969)). \u201cPrivity is not established, however, from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts ....\u201d Id. Indeed, the doctrine of issue preclusion should operate to bar relitigation of an issue only where the instant party was \u201cfully protected\u201d in the earlier proceeding. Id.\nDMV argues this Court\u2019s decision in State v. O\u2019Rourke, 114 N.C. App. 435, 442 S.E.2d 137 (1994), is dispositive of the present case. In O\u2019Rourke this Court considered whether the State was collaterally estopped from introducing evidence of the defendant\u2019s refusal to submit to a blood alcohol test because DMV had previously concluded defendant did not willfully refuse the test. Id. at 439, 442 S.E.2d at 139. The O\u2019Rourke Court held the District Attorney was not collaterally estopped from introducing the challenged evidence because, even assuming the willful refusal issue was resolved by DMV, the District Attorney and DMV were not in privity. Id. at 439-440, 442 S.E.2d at 139.\nThe O\u2019Rourke Court focused on two factors in concluding the District Attorney and DMV were not in privity. First, the criminal proceeding directed by the District Attorney and the civil licensing hearing controlled by DMV protect different interests. Id. at 440, 442 S.E.2d at 139. Second, \u201cthe District Attorney had no role in the administrative proceeding and, therefore, was not \u2018fully protected\u2019 in that proceeding.\u201d Id.\nSubsequent to this Court\u2019s decision in O\u2019Rourke, however, our Supreme Court clarified that it was actually the people of North Carolina, rather than District Attorneys, who are the real parties in interest in criminal prosecutions. Simeon v. Hardin, 339 N.C. 358, 368, 451 S.E.2d 858, 865 (1994) (citing N.C. Const. art. IV, \u00a7 13(1)). Therefore, as DMV is also a servant of the people, see N.C. Const. art. I, \u00a7 2 (\u201cAll political power is vested in and derived from the people; all government ... is instituted solely for the good of the whole\u201d), we conclude the district attorney and DMV actually represent the same interest in driving while impaired cases \u2014 that of the citizens of North Carolina in prohibiting individuals who drive under the influence of intoxicating substances from using their roads. See Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 239, 182 S.E.2d 553, 562 (1971) (license revocation statute is designed to promote breathalyzer examinations which supply evidence directly related to state\u2019s enforcement of motor vehicle laws).\nNevertheless, we remain bound by the O\u2019Rourke Court\u2019s admonition, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989), that \u201cthe District Attorney [has] no role in the administrative proceeding and, therefore, [is] not \u2018fully protected\u2019 [therein].\u201d O\u2019Rourke, 114 N.C. App. at 440, 442 S.E.2d at 139. See also Whitener, 100 N.C. App. at 76-77, 394 S.E.2d at 266 (collateral estoppel applies only if interest of instant party is fully protected in previous proceeding). Consequently, under O\u2019Rourke and Whitener, we recognize the District Attorney is not collaterally estopped from relitigating issues previously determined in license revocation proceedings.\nThe present case, however, does not implicate the same concerns of non-representation as O\u2019Rourke because the District Attorney\u2019s office was necessarily involved from the inception of the criminal case against Brower. Therefore, we believe our Supreme Court\u2019s decision in State v. Lewis, 311 N.C. 727, 319 S.E.2d 145 (1984), rather than this Court\u2019s opinion in O\u2019Rourke, is dispositive of the present case.\nIn Lewis, the State, through its New Bern Child Support Agency, filed a civil proceeding against defendant seeking indemnification for public assistance it rendered two of defendant\u2019s minor children. Id. at 728, 319 S.E.2d at 147. Defendant, in his answer, alleged he was not the father of the children. Id. Noting defendant was adjudicated the natural father of the children in a prior criminal action also instituted by the State, the trial court concluded defendant was estopped from denying paternity. Id. at 728-729, 319 S.E.2d at 147.\nThe Supreme Court, affirming the trial court, stated, \u201c[defendant . . . contends that the state in this [civil] action is not identical to or in privity with the state in the prior criminal action. We find this argument feckless.\u201d Id. at 732, 319 S.E.2d at 149. In reaching its holding, the Lewis Court recognized the State instituted both the criminal and civil proceeding; the State \u201cwas not a nominal party\u201d in either action; and the State pursued the same interest in both cases \u2014 having parents financially support their children. Id.\nLikewise, in the present case, the State instituted both the criminal prosecution for driving while impaired and the civil license revocation hearing. The State represented the same interest in both actions \u2014 that of the citizens of North Carolina in maintaining safe roadways. See Joyner, 279 N.C. at 239, 182 S.E.2d at 562. Further, we note the District Attorney, acting as the legal representative of the citizens of North Carolina, was actively involved in the probable cause determination in case I. Therefore, under Lewis, Whitener, Simeon, and Joyner, we conclude DMV in case II is in privity with the State in case I.\nOur holding is a narrow one. Indeed, by finding privity in the present case, we do not imply DMV is collaterally estopped from relit-igating any other issue previously determined in a criminal trial for driving while impaired. Such an expansive rule would ignore our Supreme Court\u2019s admonition that:\nthe same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person\u2019s privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one action is of no consequence to the other.\nJoyner, 279 N.C. at 238, 182 S.E.2d at 562 (quoting Ziemba v. Johns, 163 N.W.2d 780, 781 (Neb. 1968)). Rather, our decision is necessarily limited to collaterally estopping DMV from relitigating the probable cause determination \u2014 the precise inquiry adjudicated by the district court in case I.\nWe believe, by limiting our holding to probable cause determinations, our decision remains faithful to the Supreme Court\u2019s recognition of the fundamental difference between criminal prosecutions and civil license revocation proceedings. See Id. See also State v. Chandler, 100 N.C. App. 706, 711, 398 S.E.2d 337, 340 (1990) (State must establish every element of a criminal charge beyond a reasonable doubt); Wyatt v. Coach Co., 229 N.C. 340, 342, 49 S.E.2d 650, 652 (1948) (burden of proof in ordinary civil actions is preponderance of the evidence). This is true because there is no legal distinction between probable cause to arrest in a criminal proceeding and \u201creasonable ground to believe\u201d that the accused was driving while impaired in a license revocation hearing. See Gardner, 39 N.C. App. at 571, 251 S.E.2d at 726 (quoting Harris, 279 N.C. at 311, 182 S.E.2d at 367) (\u201c \u2018Probable cause and \u201creasonable ground to believe\u201d are substantially equivalent terms.\u2019 \u201d). See also Montgomery v. N.C. Dept. of Motor Vehicles, 455 F. Supp. 338, 342-343 (W.D.N.C. 1978) (upholding the constitutionality of automatic license revocation statute because officer must have probable cause to arrest), aff\u2019d, 599 F.2d 1048 (4th Cir. 1979). Put simply, the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical. Therefore, we can discern no rational reason to allow DMV to relitigate the probable cause determination from case I.\nAccordingly, we affirm the trial court\u2019s order collaterally estop-ping DMV from relitigating whether or not Trooper Mendenhall had probable cause to arrest Brower.\nII.\nFinally, DMV contends the trial court\u2019s order is invalid because it does not contain a judgment.\nIt is well settled that when, as here, the contested order is \u201cdefective because it did not contain [an appropriate judgment] . . . [t]he remedy to correct this deficiency ... is not a new trial, but rather a remand for entry of a proper judgment.\u201d Pitts v. Broyhill, 88 N.C. App. 651, 658, 364 S.E.2d 738, 743 (1988). See also N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) (1990) (\u201cIn all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.'\u201d') (emphasis added).\nAccordingly, under Pitts, we remand this case to the trial court for entry of an order consistent with this opinion which satisfies the strictures of N.C.R. Civ. P. 52(a)(1).\nAffirmed and remanded.\nJudges GREENE and JOHN concur.\n. Effective 29 April 1996, Alexander Killens resigned as Commissioner of DMV. At present, Frederick Aikens is the Acting Commissioner.", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General Sondra C. P\u00e1nico, for respondent-appellant.", "Smith, Follin & James, L.L.P. by Seth R. Cohen, and Charles A. Lloyd for petitioner-appellee." ], "corrections": "", "head_matter": "STEPHEN MOORE BROWER, Petitioner-Appellee v. ALEXANDER KILLENS, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent-Appellant\nNo. COA95-1015\n(Filed 18 June 1996)\nJudgments \u00a7 237 (NCI4th)\u2014 criminal DWI case dismissed\u2014 subsequent automatic license revocation hearing \u2014 existence of probable cause to arrest for DWI \u2014 DMV collaterally estopped from relitigating issue\nIn this action for de novo review of petitioner\u2019s automatic license revocation based on his refusal to submit to chemical analysis of his breath, respondent DMV was collaterally estopped from relitigating the existence of probable cause to arrest petitioner for driving while impaired, since the trial court in a criminal prosecution of petitioner for DWI concluded that the trooper had insufficient probable cause to arrest petitioner; petitioner in this case was defendant in that case; and DMV in this case was in privity with the prosecution in the criminal case, as the State instituted both the civil hearing and the criminal prosecution, and the State represented the same interest in both actions \u2014 that of the citizens of North-Carolina in maintaining safe roadways.\nAm Jur 2d, Judgments \u00a7 698.\nAppeal by respondent from order signed 22 June 1995 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 23 April 1996.\nAttorney General Michael F. Easley, by Associate Attorney General Sondra C. P\u00e1nico, for respondent-appellant.\nSmith, Follin & James, L.L.P. by Seth R. Cohen, and Charles A. Lloyd for petitioner-appellee." }, "file_name": "0685-01", "first_page_order": 721, "last_page_order": 727 }