{ "id": 9251247, "name": "JIMMY RAY COLE, Petitioner v. JANICE FAULKNER, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent", "name_abbreviation": "Cole v. Faulkner", "decision_date": "2002-12-31", "docket_number": "No. COA01-1483", "first_page": "592", "last_page": "597", "citations": [ { "type": "official", "cite": "155 N.C. App. 592" } ], "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": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "year": 1993, "pin_cites": [ { "page": "167-68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "59 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "232 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595808 ], "year": 1950, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0128-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "390 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "326 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306896 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0462-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(e)" }, { "parenthetical": "providing that the DMV may place reasonable conditions or restrictions on the person for any period up to three years from the date of restoration" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "396 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "85-86" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526663 ], "year": 1990, "pin_cites": [ { "page": "268-69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0268-01" ] }, { "cite": "46 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "228 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627584 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0584-01" ] }, { "cite": "45 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "228 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626138 ], "year": 1947, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0301-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "567 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "152 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250179 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/152/0379-01" ] } ], "analysis": { "cardinality": 620, "char_count": 12502, "ocr_confidence": 0.77, "pagerank": { "raw": 1.1772056127014004e-07, "percentile": 0.5877705611408233 }, "sha256": "d0e89c84fbd42d4780ff06b71f1792544103aade17cc77793ab10ebc07db3502", "simhash": "1:af295f38502f5452", "word_count": 2019 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "JIMMY RAY COLE, Petitioner v. JANICE FAULKNER, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent" ], "opinions": [ { "text": "THOMAS, Judge.\nThe trial court here affirmed an order of the Division of Motor Vehicles (DMV) cancelling the conditional restoration of driving privileges for petitioner, Jimmy Ray Cole. He now appeals and for the reasons herein, we reverse.\nCole\u2019s driving privileges had been revoked due to convictions for driving while impaired from 1973 to 1995. On 17 July 2000, a hearing was held with the DMV conditionally restoring his privileges pursuant to N.C. Gen, Stat. \u00a7 20-19(e).\nAs part of the conditional restoration agreement, Cole consented to certain conditions, including that he not operate a motor vehicle after consuming alcohol. Further, it was mandated that Cole \u201c[o]nly operate a vehicle properly equipped and maintained with an Ignition Interlock device approved by the North Carolina Department of Motor Vehicles.\u201d The Ignition Interlock device requires .a driver to pass an alcohol test by blowing into the device. The results are then recorded as logged events. If the device recognizes alcohol through the breath test, the vehicle is programmed not to start. Occasionally, an alcohol test will also be required while the vehicle is running. Cole agreed that he would not adjust or tamper with the ignition interlock device, and that he would have monitoring checks performed on it every sixty days.\nOn 11 April 2001, the DMV notified Cole to appear at a hearing to determine whether he had violated any of the provisions of the conditional restoration agreement. Evidence at the hearing showed that Cole had registered alcohol readings three different times, 0.02 on 4 November 2000, 0.11 on 22 December 2000, and 0.082 on 11 January 2001. There was also evidence that shortly after these readings, the device registered no alcohol level readings. The November reading registered a \u201cwarn\u201d attempt on the interlock system. Only the two \u201cfail\u201d readings, December and January, were the subject of inquiry at the hearing.\nCole testified that he had not consumed alcohol, but did have a soft drink before the December reading and coffee before the January reading. He said that his vehicle cranked on his third try in December, after he had consumed a soft drink. He said he did not know what was wrong with the device and subsequently went to Monitech, which services it. Monitech technicians told Cole to make sure he did not have anything in his mouth when he blew into the device.\nIn January, Cole was again unable to start his vehicle due to an alcohol reading of 0.082. He claimed only to have had decaffeinated coffee. Cole returned to the coffee shop and called Sergeant Jody Wall, a police officer with the Wendell Police Department. Wall administered an alco-sensor test, which registered 0.00. After the test, Wall and Cole walked to Cole\u2019s vehicle, which immediately started on his next attempt. Cole then took his vehicle back to Monitech for servicing. The ignition interlock device tested within calibration standards.\nCole stated he was the only one to blow in the device on these two dates. His vehicle is sometimes driven by his girlfriend and an employee, who do not drink.\nAt the close of all the evidence, the DMV\u2019s hearing officer determined there was sufficient evidence that Cole had violated the terms of the agreement. The restoration of his license was cancelled and the original permanent revocation of his driving privileges was placed back into effect.\nCole petitioned for review by the trial court, which affirmed the decision. It found the DMV did not act in an arbitrary and capricious manner by cancelling Cole\u2019s conditional restoration of his driving privileges.\nBy his first assignment of error, Cole contends the trial court erred by reviewing the DMV\u2019s decision under a petition for writ of certiorari. Instead, he argues the trial court should have applied de novo review. We disagree.\nWhere the trial court sits without a jury, this Court reviews whether the competent evidence supports the trial court\u2019s findings, and whether the findings in turn support the conclusions of law. Meekins v. Box, 152 N.C. App. 379, 567 S.E.2d 422 (2002).\nSection 20-25 of the North Carolina General Statutes, titled \u201cRight of appeal to court,\u201d provides:\nAny person denied a license or whose license has been canceled, suspended or revoked by the Division, except where such cancellation is mandatory under the provisions of this Article, shall have a right to file a petition within 30 days thereafter for a hearing in the matter in the superior court of the county wherein such person shall reside, or to the resident judge of the district or judge holding the court of that district, or special or emergency judge holding a court in such district in which the violation was committed, and such court or judge is hereby vested with jurisdiction and it shall be its or his duty to set the matter for hearing upon 30 days\u2019 written notice to the Division, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this Article. Provided, a judge of the district court shall have limited jurisdiction under this section to sign and enter a temporary restraining order only.\nN.C. Gen. Stat. \u00a7 20-25 (2001) (emphasis added). Thus, a right to de novo review in superior court exists where there is a discretionary denial, cancellation, suspension, or revocation of a driver\u2019s license by the DMV. See In re: Revocation of License of Wright, 228 N.C. 301, 303, 45 S.E.2d 370 (1947), reh\u2019g denied, 228 N.C. 584, 46 S.E.2d 696 (1948).\nHowever, where the cancellation or revocation of the license is mandatory, there is no right to appeal under section 20-25. N.C. Gen. Stat. \u00a7 20-25; Penuel v. Hiatt, 100 N.C. App. 268, 268-69, 396 S.E.2d 85, 85-86 (1990).\nHere, Cole\u2019s license was conditionally restored under N.C. Gen. Stat. \u00a7 20-19(e). Pursuant to that section, Cole entered into an agreement with the DMV. See id. (providing that the DMV may place reasonable conditions or restrictions on the person for any period up to three years from the date of restoration). Under the agreement, \u201ca violation of any term, restriction, or condition . . . shall result in a termination of this restoration and the license continues in the original state of revocation.\u201d (Emphasis added). Thus, once the DMV determined that a condition has been violated, revocation was mandatory. Accordingly, section 20-25 does not provide for review of this decision.\nAlthough a superior court does not have authority to review mandatory license revocations by the DMV, a petitioner may appeal a permanent revocation of a driver\u2019s license pursuant to section 20-19(e) by petitioning for a writ of certiorari. Davis v. Hiatt, 326 N.C. 462, 390 S.E.2d 338 (1990). In Davis, the petitioner\u2019s driving privileges were permanently revoked pursuant to N.C. Gen. Stat. \u00a7 20-17(2), and, as here, N.C. Gen. Stat. \u00a7 20-19(e). In holding that the revocation could be reviewed by the superior court by writ of certiorari, the Davis Court stated:\nIt is well settled in this jurisdiction that certiorari is the appropriate process to review the proceedings of inferior courts and of bodies and officers exercising judicial or quasi-judicial functions in cases where no appeal is provided by law.\nDavis, 326 N.C. at 465, 390 S.E.2d at 340, (quoting Russ v. Board of Education of Brunswick County, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950)).\nTherefore, the trial court did not err in reviewing the DMV\u2019s decision by writ of certiorari and we overrule this assignment of error.\nCole next argues that the trial court erred in affirming the revocation of the conditional restoration of his driver\u2019s license. Specifically, he argues that even when applying certiorari review, the whole record is devoid of competent evidence to support the DMV\u2019s decision. We agree.\nWhen reviewing an appeal from a petition for writ of certiorari in superior court, this Court\u2019s scope of review is two-fold: (1) examine whether the superior court applied the appropriate standard of review; and, if so, (2) determine whether the superior court correctly applied the standard. ACT-UP Triangle v. Comm\u2019n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citations omitted). Here, the superior court applied a whole record review. Therefore, we must determine whether the court properly did so.\nUnder the whole record test, the trial court reviews the record de novo for errors of law to determine if competent, material, and substantial evidence exists, based on the whole record, to support the decision, and determines whether the decision was arbitrary and capricious. Id. at 54-55, 557 S.E.2d at 634. Significantly, the whole record test requires the court to consider both evidence justifying the agency\u2019s decision and contrary evidence that could lead to a different result. In re Appeal by McCrary, 112 N.C. App. 161, 167-68, 435 S.E.2d 359, 364 (1993). However, the test does not allow the reviewing court to replace the agency\u2019s judgment when there are two reasonably conflicting views, although the court could have justifiably reached a different result under de novo review. Id.\nThe record here shows that at the end of the non-compliance hearing, the DMV stated the terms of the agreement had not been met. After Cole\u2019s attorney inquired as to what terms were being referred to, the DMV responded \u201calcohol is being used.\u201d Thus, the DMV based its revocation on the December and January alcohol readings.\nCole, however, counters that the readings were erroneous because the device malfunctioned. He states that he only consumed a soft drink before the December reading and coffee before the January reading. Cole emphasized the evidence establishing subsequent readings taken shortly thereafter did not register any alcohol. Specifically, he points to the affidavits from Danny and Martha Jeffries, owners of Fleet Fuels, the service station where the December reading occurred. Mr. Jeffries asserts that Cole\u2019s second attempt to start his car was successful. Additional evidence was presented showing that after the January reading, Cole called the police and was administered an alco-sensor field test that revealed a blood alcohol level of 0.00. Finally, according to a technician employed by Monitech, Inc., the manufacturer of the device, the readings were \u201cconsistent with fast-dissipating mouth contaminants.\u201d\nAccordingly, we hold that the record lacked substantial evidence to support the conclusion that Cole had consumed alcohol and thereafter operated a motor vehicle.\nREVERSED.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Kirk, Kirk, Howell, Cutler & Thomas, L.L.P, by Joseph T. Howell and Jeffrey M. Cutler, for petitioner-appellant.", "Roy Cooper, Attorney General, by Jeffrey R. Edwards, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "JIMMY RAY COLE, Petitioner v. JANICE FAULKNER, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent\nNo. COA01-1483\n(Filed 31 December 2002)\n1. Motor Vehicles\u2014 mandatory driver\u2019s license revocation\u2014 reviewed by certiorari\nThe trial court did not err by reviewing by writ of certiorari a DMV decision to cancel the conditional restoration of driving privileges under N.C.G.S. \u00a7 20-19(e). Although N.C.G.S. \u00a7 20-25 provides a right to de novo review in superior court where there is a discretionary cancellation of a driver\u2019s license by DMV, revocation in this case was mandatory and N.C.G.S. \u00a7 20-25 did not apply. However, certiorari is the appropriate process to review the proceedings of inferior courts and bodies and officers exercising judicial or quasi-judicial functions where no appeal is provided by law.\n2. Motor Vehicles\u2014 driver\u2019s license revocation \u2014 whole record \u2014 malfunctioning Ignition Interlock\nIn a certiorari review of DMV\u2019s revocation of the conditional restoration of a driver\u2019s license, the Court of Appeal\u2019s scope of review was whether the superior court applied the appropriate standard properly. The whole record, reviewed by the trial court, did not support the revocation because DMV relied on Ignition Interlock readings indicating alcohol consumption and petitioner produced evidence that the device malfunctioned and that he had not consumed alcohol on either of the occasions relied upon by the DMV.\nAppeal by petitioner from judgment entered 8 October 2001 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 11 September 2002.\nKirk, Kirk, Howell, Cutler & Thomas, L.L.P, by Joseph T. Howell and Jeffrey M. Cutler, for petitioner-appellant.\nRoy Cooper, Attorney General, by Jeffrey R. Edwards, Assistant Attorney General, for the State." }, "file_name": "0592-01", "first_page_order": 622, "last_page_order": 627 }