{ "id": 11240115, "name": "JOHNNY RICHARD GIBSON, Petitioner/Appellant v. JANICE FAULKNER, COMMISSIONER NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent/Appellee", "name_abbreviation": "Gibson v. Faulkner", "decision_date": "1999-04-06", "docket_number": "No. COA98-712", "first_page": "728", "last_page": "736", "citations": [ { "type": "official", "cite": "132 N.C. App. 728" } ], "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": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": -1 }, { "cite": "114 N.C.App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528012 ], "opinion_index": -1, "case_paths": [ "/nc-app/114/0795-01" ] }, { "cite": "481 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54168 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0625-01" ] }, { "cite": "476 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867526, 867657, 867691, 867635, 867581 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0435-04", "/nc/344/0435-05", "/nc/344/0435-02", "/nc/344/0435-03", "/nc/344/0435-01" ] }, { "cite": "472 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919615 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0685-01" ] }, { "cite": "183 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569058, 8568932, 8568969, 8569105, 8569144, 8569019 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0397-04", "/nc/279/0397-01", "/nc/279/0397-02", "/nc/279/0397-05", "/nc/279/0397-06", "/nc/279/0397-03" ] }, { "cite": "182 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "279 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566492 ], "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0226-01" ] }, { "cite": "221 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "765" }, { "page": "765" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550599 ], "year": 1976, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0506-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-139.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b3)" }, { "page": "(b)" }, { "page": "(b3)" } ], "opinion_index": 0 }, { "cite": "136 L. Ed. 2d 167", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 894", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11650948, 11650856, 11650697, 11651114, 11650666, 11650987, 11651023, 11650767, 11651059, 11651156, 11650904, 11650809, 11651194, 11650716 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0894-08", "/us/519/0894-06", "/us/519/0894-02", "/us/519/0894-12", "/us/519/0894-01", "/us/519/0894-09", "/us/519/0894-10", "/us/519/0894-04", "/us/519/0894-11", "/us/519/0894-13", "/us/519/0894-07", "/us/519/0894-05", "/us/519/0894-14", "/us/519/0894-03" ] }, { "cite": "467 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "342 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795950 ], "year": 1996, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0419-01" ] }, { "cite": "333 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696714, 4692435, 4691318, 4691867, 4690364 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0329-02", "/nc/314/0329-05", "/nc/314/0329-01", "/nc/314/0329-04", "/nc/314/0329-03" ] }, { "cite": "328 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524607 ], "year": 1985, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0350-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "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": "443 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "114 N.C.App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528012 ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0795-01" ] } ], "analysis": { "cardinality": 733, "char_count": 18864, "ocr_confidence": 0.777, "pagerank": { "raw": 8.432863823523011e-08, "percentile": 0.4843925263596449 }, "sha256": "768b4b2f1cd044f759ed8aac305996d08d79d31a3eea20122d61395db57cbd1e", "simhash": "1:21aa947253791614", "word_count": 3060 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and LEWIS concur." ], "parties": [ "JOHNNY RICHARD GIBSON, Petitioner/Appellant v. JANICE FAULKNER, COMMISSIONER NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent/Appellee" ], "opinions": [ { "text": "HORTON, Judge.\nPetitioner contends the trial court erred in, among other things, (I) concluding, as a matter of law, that Trooper Silver had reasonable grounds to believe that petitioner committed an implied consent offense; (II) finding as fact that petitioner had been advised of his rights under the appropriate statute; (III) concluding, as a matter of law, that petitioner wilfully refused to submit to a chemical analysis upon the request of Trooper Silver; and (IV) finding that DMV could proceed to revoke petitioner\u2019s driver\u2019s license, despite petitioner being found not guilty of the related criminal offenses in district court.\nI. Reasonable Grounds Based on Hearsay Evidence\nDefendant contends that the trial court erred in concluding as a matter of law that Trooper Silver had \u201creasonable grounds\u201d to believe that petitioner committed an implied consent offense. Petitioner claims that Trooper Silver based his arrest upon hearsay information submitted to him by Deputy Reece, and that such hearsay testimony is inadmissible in court. Petitioner asks this Court to review its holding in Melton v. Hodges, 114 N.C. App. 795, 443 S.E.2d 83 (1994), that \u201creasonable grounds for belief may be based upon information given to the officer by another, the source of the information being reasonably reliable, and it is immaterial that the hearsay information itself may not be competent in evidence at the [criminal] trial of the person arrested.\u201d Id. at 798, 443 S.E.2d at 85.\nWe are bound by our holding in Melton. \u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Since our ruling in Melton has not been overturned by a higher court, it is binding upon this panel. This assignment of error is overruled.\nII. Advice of Chemical Test Rights\nPetitioner argues that the trial court erred in determining that he had been advised of his rights under the appropriate statute. Petitioner relies on the following excerpt from the transcript of proceedings before the trial court, and argues that Trooper Silver advised him of his rights under the incorrect statute:\nQ [District Attorney]: At that point did you advise Mr. Gibson of his rights pursuant to GS20-16.2b?\nA [Trooper Silver]: Yes, sir, I did.\nQ [District Attorney]: Did you advise him of those rights orally? A [Trooper Silver]: Yes, sir.\nQ [District Attorney]: Did you make a written copy of the rights read to him\u2014\nA [Trooper Silver]: Yes, sir. Yes, sir, I did.\nQ [District Attorney]: Did he indicate to you whether or not he understood those rights?\nA [Trooper Silver]: Yes, sir, he did.\nQ [District Attorney]: Did you present him with the written rights form and ask him to sign it?\nA [Trooper Silver]: Yes, sir, I did.\nQ [District Attorney]: Did he sign it?\nA [Trooper Silver]: No, sir, he refused.\nQ [District Attorney]: After you advised him of his rights, did he exercise his right to call a witness or to speak with an attorney?\nA [Trooper Silver]: Yes, sir. He exercised that right and he used the phone.\nPetitioner contends that the rights to which he was entitled to be advised are actually found in N.C. Gen. Stat. \u00a7 20-16.2(a), and that based on Trooper Silver\u2019s testimony the trial court did not have competent evidence to conclude as a matter of law that petitioner had been properly advised of his rights. We disagree.\nWhere the trial judge sits as the trier of fact, \u201c[t]he court\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.\u201d Gilbert Engineering Co. v. City of Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 858, disc. review denied, 314 N.C. 329, 333 S.E.2d 485 (1985). In the case before us, we find there was competent evidence to support the trial judge\u2019s findings of fact. We note that N.C. Gen. Stat. \u00a7 20-16.2(b) does not even contain a recital of rights. Further, the written form referred to by Trooper Silver appears of record as an exhibit at the hearing in this matter. The written form, which the petitioner understood but refused to sign, sets out in detail the rights found in N.C. Gen. Stat. \u00a7 20-16.2(a). One of the rights enumerated in N.C. Gen. Stat. \u00a7 20-16.2(a) is the right to telephone an attorney and select a witness to view the testing procedure. The written notice of rights indicates that Trooper Silver advised petitioner of his rights at 10:10 p.m., and that petitioner called an attorney or witness at 10:11 p.m. The conduct of the petitioner in making telephone calls immediately after being advised that he had the right to do so supports the finding of the trial court that petitioner was fully advised of his rights under the correct statutory section. There is other competent evidence of record in the form of the Affidavit signed and filed by Trooper Silver affirming that he advised the petitioner of his rights pursuant to N.C. Gen. Stat. \u00a7 20-16.2(a). The reference in the district attorney\u2019s question to advising petitioner of his rights under N.C. Gen. Stat. \u00a7 20-16.2(b) rather than (a) appears to be either a transcription error or a mere lapsus linguae by the district attorney. See State v. Kandies, 342 N.C. 419, 445, 467 S.E.2d 67, 81, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996). In any event, there was other competent evidence to support the trial court\u2019s findings of fact, and those findings support its conclusion of law that petitioner had been advised of his rights under N.C. Gen. Stat. \u00a7 20-16.2(a). Petitioner\u2019s assignment of error is overruled.\nIII. Willful Refusal\nPetitioner next contends that the trial court erred in concluding, as a matter of law, that he willfully refused to submit to a chemical analysis upon request of the officer. N.C. Gen. Stat. \u00a7 20-139.1(b3) provides, among other things, that\n[a] person\u2019s willful refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a willful refusal....\nPetitioner does not contend that he actually furnished the sequential breath samples requested of him by the trooper. He argues, however, that to constitute a \u201cvalid chemical analysis\u201d N.C. Gen. Stat. \u00a7 20-139.1(b) requires that the test be \u201cperformed according to methods approved by the Commission for Health Services and by an individual possessing a valid permit\u201d for that type of chemical analysis. State v. Gray, 28 N.C. App. 506, 507, 221 S.E.2d 765, 765 (1976). He argues that \u201c[t]he burden of proving compliance with G.S. 20-139.1(b) lies with the State[,]\u201d id., and that, in the case sub judice, \u201c[t]he failure of the State to produce evidence of the test operator\u2019s compliance with G.S. 20-139.1(b) must be deemed prejudicial error.\u201d Id. at 506, 221 S.E.2d at 765.\nOur holding in Gray addressed the issue of admitting the results of the chemical test into evidence in a criminal proceeding. The administrative hearing referred to in N.C. Gen. Stat. \u00a7 20-16.2(d) addresses the issue of revoking one\u2019s driving privilege based upon a willful refusal to submit to a chemical analysis, and is in the nature of a civil proceeding. N.C. Gen. Stat. \u00a7 20-16.2(d) lists five issues to be considered in the hearing:\nThe hearing must be conducted in the county where the charge was brought, and must be limited to consideration of whether:\n(1) The person was charged with an implied-consent offense;\n(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense;\n(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;\n(4) The person was notified of his or her rights as required by subsection (a); and\n(5) The p\u00e9rson willfully refused to submit to a chemical analysis upon the request of the charging officer.\nSince the gist of the revocation proceeding is to determine whether a person willfully refused to submit to a chemical analysis, it is irrelevant in the civil proceeding whether the test was performed according to the applicable rules and regulations. In the case before us, there is competent evidence that petitioner refused to give sequential breath samples, and this evidence supports the trial judge\u2019s conclusion that petitioner\u2019s conduct constituted willful refusal under N.C. Gen. Stat. \u00a7 20-139.1(b3). Petitioner\u2019s assignment of error is overruled.\nIV. Collateral Estoppel\nPetitioner contends the trial court erred in finding that DMV could revoke his driving privilege, since he was found not guilty in the district court criminal proceeding. Our courts have confronted this issue before and held that\n[u]nder implied consent statutes such as G.S. 20-16.2, the general rule is that neither an acquittal of a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, nor a plea of guilty, nor a conviction has any bearing upon a proceeding before the licensing agency for the revocation of a driver\u2019s license for a refusal to submit to a chemical test. \u201cIt is well established that the 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 is of no consequence to the other.\u201d\nJoyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 238, 182 S.E.2d 553, 562 (citations omitted), reh\u2019g denied, 279 N.C. 397, 183 S.E.2d 241 (1971).\nPetitioner argues that his acquittal in criminal court collaterally estops DMV from relitigating at the administrative hearing the existence of reasonable grounds to believe he was driving while impaired. In support of his argument, petitioner relies on Brower v. Killens, 122 N.C. App. 685, 472 S.E.2d 33, disc. review allowed, 344 N.C. 435, 476 S.E.2d 112 (1996), disc. review improvidently allowed, 345 N.C. 625, 481 S.E.2d 86 (1997). In Brower, we held that DMV was collaterally estopped from relitigating in a license revocation hearing the determination of \u201cno probable cause\u201d by the district court in a related criminal proceeding. Id. at 690, 472 S.E.2d at 37. Petitioner argues that it-logically follows from the finding of not guilty in district criminal court that Trooper Silver had no probable cause to believe he had committed an implied consent offense. We find petitioner\u2019s argument to be without merit.\nWe first note that \u201cthere is no legal distinction between probable cause to arrest in a criminal proceeding and \u2018reasonable grounds to believe\u2019 that the accused was driving while impaired in a license revocation hearing.\u201d Id. However, \u201cbeyond a reasonable doubt\u201d and \u201cprobable cause\u201d are two different standards applied at different stages of a criminal prosecution. To arrest petitioner, Trooper Silver needed probable cause to believe that he committed an implied consent offense. To convict petitioner of the charge of driving while impaired, the State was required to prove its case beyond a reasonable doubt, and the verdict of not guilty indicates that the district court judge did not find that the State met its burden. Despite the criminal verdict, however, there is competent evidence to support the finding of the trial court in the case before us that Trooper Silver had probable cause to believe petitioner committed an implied consent offense. Consistent with the holding in Joyner, we hold that petitioner\u2019s acquittal of the criminal charge of operating a motor vehicle while under the influence of intoxicating liquor does not estop DMV from revoking his driving privilege based on his willful refusal to submit to sequential breath tests. This assignment of error is overruled.\nWe have carefully reviewed and considered petitioner\u2019s other arguments and assignments of error and find them to be without merit. Petitioner had a fair hearing, free from prejudicial error.\nAffirmed.\nJudges GREENE and LEWIS concur.", "type": "majority", "author": "HORTON, Judge." } ], "attorneys": [ "Hyler Lopez & Walton, P.A., by George B. Hyler, Jr., and Robert J. Lopez, for petitioner appellant.", "Attorney General Michael F. Easley, by Associate Attorney General Jeffrey R. Edwards, for respondent appellee." ], "corrections": "", "head_matter": "JOHNNY RICHARD GIBSON, Petitioner/Appellant v. JANICE FAULKNER, COMMISSIONER NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent/Appellee\nNo. COA98-712\n(Filed 6 April 1999)\n1. Motor Vehicles\u2014 driver\u2019s license revocation \u2014 reasonable grounds to believe implied consent offense committed\u2014 hearsay\nThe trial court did not err in a superior court proceeding following a DMV driver\u2019s license suspension by concluding that the trooper had reasonable grounds to believe that petitioner had committed an implied consent offense. The Court of Appeals declined to review the holding in Melton v. Hodges, 114 N.C.App. 795, that reasonable grounds to believe petitioner had committed the offense could be based on information given to the officer by another.\n2. Motor Vehicles\u2014 driver\u2019s license revocation \u2014 refusal to give sequential breath samples \u2014 warning of rights\nThe trial court did not err in a superior court challenge to a driver\u2019s license revocation by determining that petitioner had been advised of his rights under the appropriate statute when he refused to give a second breath sample. The reference in the district attorney\u2019s question to N.C.G.S. \u00a7 20-16.2(b) rather, than (a) appears to be either a transcription error or a mere lapsus lin-guae. Moreover, there was other competent evidence to support the court\u2019s findings.\n3. Motor Vehicles\u2014 driver\u2019s license revocation \u2014 willful refusal to submit to a chemical analysis \u2014 evidence\nThe trial court did not err in a superior court proceeding arising from a DMV license revocation by concluding that petitioner had wilfully refused to submit to a chemical analysis. There was competent evidence that petitioner\u2019s conduct constituted willful refusal to give sequential breath samples; it is irrelevant in the civil revocation proceeding whether the test was performed according to applicable rules and regulations.\n4. Motor Vehicles\u2014 driver\u2019s license revocation \u2014 acquittal in criminal proceeding\nThe trial court did not err by finding that DMV was not estopped from revoking petitioner\u2019s driving privileges for refusing sequential breath samples even though he was found not guilty in criminal court of driving while impaired and leaving the scene of an accident. Despite the criminal verdict, there is competent evidence to support the finding that the trooper had probable cause to believe that petitioner had committed an implied consent offense.\nAppeal by petitioner from judgment entered 8 January 1998 by Judge Jesse B. Caldwell, III, in Haywood County Superior Court. Heard in the Court of Appeals 16 March 1999.\nOn 7 July 1996, Trooper J.D. Silver of the North Carolina Highway Patrol responded to a report of an accident on Highway 215 in Haywood County. According to the report, Gary Reece, an off-duty Deputy Sheriff, was involved in a collision with a truck which swerved left of the centerline and struck the driver\u2019s side mirror of the vehicle driven by Deputy Reece. Johnny Richard Gibson (petitioner), who was identified by Deputy Reece as the driver of the truck, left the scene of the accident after Reece indicated he was going to call the Highway Patrol to investigate the accident. A short time later, Waynesville police officers stopped a vehicle matching the description of the truck. At the time the truck was stopped, a woman was driving and petitioner was a passenger. In response to radio transmissions, Trooper Silver came to the scene of the stop. When Trooper Silver approached petitioner, he detected a strong odor of alcohol on petitioner\u2019s breath; he also noticed that petitioner\u2019s eyes were red and glassy and that petitioner was unsteady on his feet. Deputy Reece then arrived at the scene of the stop and identified petitioner as the driver of the truck at the time of the collision with his vehicle. Based on the information received from Reece and upon his own observations of petitioner, Trooper Silver arrested petitioner for driving while impaired and for leaving the scene of an accident.\nTrooper Silver then transported petitioner to the Haywood County Sheriff\u2019s Department for a chemical analysis of his breath. The trial court found that Trooper Silver, who was a certified chemical analyst, orally advised petitioner of his rights pursuant to N.C. Gen. Stat. \u00a7 20-16.2(a) (1993 & 1998 Cum. Supp.) and gave petitioner a written copy of those same rights. Although petitioner understood his rights, he refused to sign the written copy acknowledging he had been advised of his rights. Trooper Silver observed petitioner for the statutory period, and then requested petitioner to submit to a chemical analysis of his breath. The petitioner provided a breath sample which registered .11 blood-alcohol content. When Trooper Silver requested petitioner to furnish a second sequential sample, petitioner refused. Trooper Silver advised petitioner of the consequences of his refusal, stating that, if petitioner did not provide a second sample, he would be marked as having refused the test and his driving privilege would be subject to revocation. Petitioner again refused to submit a second breath sample, and Trooper Silver recorded him as having refused the test. Trooper Silver prepared an Affidavit and Revocation Report with regards to petitioner\u2019s refusal to submit to the breath test.. In that Affidavit, which was later introduced into evidence in this case, Trooper Silver confirmed that prior to petitioner\u2019s refusal, he advised petitioner of his rights pursuant to N.C. Gen. Stat. \u00a7 20-16.2(a), both orally and in writing.\nIn the criminal proceeding, the Haywood County District Court found petitioner not guilty of driving while impaired and leaving the scene of an accident. Following an administrative hearing, however, the Division of Motor Vehicles (DMV) suspended petitioner\u2019s driving privilege for 12 months based on his willful refusal to submit to the chemical analysis. Petitioner challenged the administrative suspension by filing an action in Haywood County Superior Court. Hearings were held on 13 October and 15 December 1997 in Haywood County Superior Court, following which the trial court entered a written judgment denying petitioner\u2019s claim for relief, dissolving prior restraining orders, and authorizing DMV to proceed with revocation of petitioner\u2019s driver\u2019s license pursuant to N.C. Gen. Stat. \u00a7 20-16.2. Petitioner appealed, assigning error.\nHyler Lopez & Walton, P.A., by George B. Hyler, Jr., and Robert J. Lopez, for petitioner appellant.\nAttorney General Michael F. Easley, by Associate Attorney General Jeffrey R. Edwards, for respondent appellee." }, "file_name": "0728-01", "first_page_order": 762, "last_page_order": 770 }