{ "id": 4173375, "name": "KAREN STEINKRAUSE, Petitioner v. GEORGE TATUM, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent", "name_abbreviation": "Steinkrause v. Tatum", "decision_date": "2009-12-08", "docket_number": "No. COA08-1080", "first_page": "289", "last_page": "304", "citations": [ { "type": "official", "cite": "201 N.C. App. 289" } ], "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": "656 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640375 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "724" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0721-01" ] }, { "cite": "477 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "223-24", "parenthetical": "finding probable cause where the police officer smelled a strong odor of alcohol on the defendant and the defendant had a blood alcohol concentration of .13" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889477 ], "year": 1996, "pin_cites": [ { "page": "369", "parenthetical": "finding probable cause where the police officer smelled a strong odor of alcohol on the defendant and the defendant had a blood alcohol concentration of .13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0364-01" ] }, { "cite": "492 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "43", "parenthetical": "holding that there was probable cause to justify the defendant's arrest due to his disorderly appearance, red glassy eyes, strong odor of alcohol, and inability to produce a driver's license or registration" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796986 ], "year": 1997, "pin_cites": [ { "page": "434", "parenthetical": "holding that there was probable cause to justify the defendant's arrest due to his disorderly appearance, red glassy eyes, strong odor of alcohol, and inability to produce a driver's license or registration" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0431-01" ] }, { "cite": "610 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "776-77", "parenthetical": "finding substantial evidence of impairment where officer smelled alcohol, the defendant swayed when standing, slurred her speech, and was unable to recite the alphabet" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8520354 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "44", "parenthetical": "emphasis added" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0036-01" ] }, { "cite": "366 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "361 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "400", "parenthetical": "\"The direct personal observation by the officer/ affiant or his fellow officers is plainly a reliable basis for issuance of a warrant.\"" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358541 ], "year": 1987, "pin_cites": [ { "page": "454", "parenthetical": "\"The direct personal observation by the officer/ affiant or his fellow officers is plainly a reliable basis for issuance of a warrant.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0448-01" ] }, { "cite": "443 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "85" }, { "page": "85" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 795", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 11, "pin_cites": [ { "page": "(d)(2005)" }, { "page": "(d)" }, { "page": "175" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1235, "char_count": 36835, "ocr_confidence": 0.767, "pagerank": { "raw": 1.827427688858363e-07, "percentile": 0.7202263529649798 }, "sha256": "6601061d4bea661ef1dd8078e94dac212f232412a8d7e689a2e39592219caa37", "simhash": "1:3fa8f1523d5d3756", "word_count": 5998 }, "last_updated": "2023-07-14T21:19:33.177262+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge HUNTER, Jr. dissents in a separate opinion.", "HUNTER, JR., Robert N., Judge, dissenting." ], "parties": [ "KAREN STEINKRAUSE, Petitioner v. GEORGE TATUM, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent" ], "opinions": [ { "text": "WYNN, Judge.\nPetitioner Karen Steinkrause was arrested for driving while impaired (DWI) on 23 September 2006 based on evidence surrounding a severe one-car accident, including an officer\u2019s observation that she smelled of alcohol. Petitioner blew several times into the Intoxilyzer machine, but did not provide a sufficient breath sample; she claimed that injuries sustained during the accident made it too painful. We now affirm the trial court\u2019s determination that probable cause existed for Petitioner\u2019s arrest, and that Petitioner willfully refused to submit to a chemical analysis.\nOn 23 September 2006, Captain K.J. McCray of the North Carolina Highway Patrol was called to the scene of an accident off 1-40 in Wake County. Arriving at the scene of the accident, he met with Trooper Kenneth Ellerbe of the North Carolina Highway Patrol who had responded first. The officers found Petitioner Steinkrause\u2019s car upside down in a ditch next to an exit ramp, where it had come to rest after having rolled several times. Trooper Ellerbe requested that she submit to a portable breath test (PBT). Petitioner successfully provided one breath sample, and Trooper Ellerbe requested that she submit to another. Petitioner was unable to provide a second sample, claiming that injuries sustained during the accident made it too painful for her to blow into the device.\nPetitioner provided a written statement for Trooper Ellerbe, that states in its entirety:\nMy left front tire looked flat. Couldn\u2019t find gas station with air upon leaving Raleigh. Was going to stop again to check air pressure. Having an argument on phone. Car swerved. Felt I could not regain control. Swerved onto inside lane and median, and car flipped. Zero loss of consciousness. Apparently superficial lacerations to left elbow area.\nCaptain McCray eventually took over the investigation. Trooper Ellerbe informed Captain McCray that he had smelled an odor of alcohol about Petitioner\u2019s person. Trooper Ellerbe also told Captain McCray the results of the first PBT, and that no result was obtained upon his second request. Captain McCray did not himself smell alcohol on Petitioner, but he noticed her clothes were dirty and she looked \u201csleepy.\u201d Based on \u201cthe collision, the damage of the vehicle and the testimony of the trooper that was there prior to [his] arrival,\u201d Captain McCray believed Petitioner had committed an implied consent offense and placed her under arrest for DWI. After her arrest, Petitioner admitted that she had been drinking prior to the accident.\nPetitioner was taken to the City County Bureau of Identification, where she was requested to submit to a chemical analysis of her breath. Captain McCray, a certified chemical analyst, advised Petitioner of her rights, and Petitioner agreed to take the Intoxilyzer test. Captain McCray told Petitioner, to blow steadily into the mouthpiece.\nAccording to Captain McCray\u2019s testimony, Petitioner attempted to blow four times. Petitioner would blow a little bit, say that it hurt her neck, and then stop. Captain McCray testified that he believed Petitioner was physically able to provide a sample of her breath. He also testified that he did not observe anything that made him believe Petitioner was not making a valid attempt. Captain McCray registered Petitioner as a willful refusal at 6:17 p.m.\nPetitioner was notified by the Division of Motor Vehicles (\u201cDMV\u201d). that her driver\u2019s license was suspended for refusal to submit to a chemical analysis pursuant in N.C. Gen. Stat. \u00a7 20-16.2. Petitioner contested the revocation and requested a hearing. Petitioner was granted a hearing before the DMV on 8 December 2006. The DMV sustained the revocation of Petitioner\u2019s driver\u2019s license. Petitioner requested judicial review of the DMV\u2019s decision on 13 December 2006. The hearing was conducted during the 4 March 2008 Civil Session of the Superior Court in Wake County. The court affirmed the revocation of Petitioner\u2019s driver\u2019s license, entering judgment on 27 March 2008. This appeal followed.\nOn appeal to this Court, the trial court\u2019s Findings of Fact are conclusive if supported by competent evidence, even though there may be evidence to the contrary. Gibson v. Faulkner, 132 N.C. App. 728, 732-33, 515 S.E.2d 452, 455 (1999). We review whether the trial court\u2019s Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008).\nPetitioner argues on appeal that the trial court erred by (I) concluding as a matter of law that she was arrested based upon reasonable grounds, and (II) making Findings of Fact and concluding that she willfully refused to submit to a test of her breath.\nI.\nPetitioner first contends that the trial court erred in concluding as a matter of law that she was arrested based upon reasonable grounds. Because the totality of the circumstances supports a finding of probable cause, we disagree.\nThis appeal arises from a revocation proceeding under N.C. Gen. Stat. \u00a7 20-16.2 which authorizes a civil revocation of the driver\u2019s license when a driver has willfully refused to submit to a chemical analysis. That statute provides for a civil hearing at which the driver can contest the revocation of her driver\u2019s license. The hearing is limited to consideration of whether:\n(1) The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;\n(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;\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 the person\u2019s rights as required by subsection (a); and\n(5) The person willfully refused to submit to a chemical analysis upon the request of the charging officer.\nN.C. Gen. Stat. \u00a7 20-16.2(d)(2005).\nA civil revocation hearing is not a criminal prosecution. This court has recognized that \u201c[t]he administrative hearing referred to in N.C. Gen. Stat. \u00a7 20-16.2(d) ... is in the nature of a civil proceeding.\u201d Gibson, 132 N.C. App. at 734, 515 S.E.2d at 455. Elsewhere, we have determined that \u201cthe 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.\u201d Brower v. Killens, 122 N.C. App. 685, 690, 472 S.E.2d 33, 37 (1996), disc, review improvidently allowed, 345 N.C. 625, 481 S.E.2d 86 (1997). Thus, reasonable grounds in a civil revocation hearing means probable cause, and is to be determined based on the same criteria. See Rock v. Hiatt, 103 N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991).\nA determination of probable cause depends on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 773 (2003). \u201cTo determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide \u2018whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to\u2019 probable cause.\u201d Id. at 371, 157 L. Ed. 2d at 775 (quoting U.S. v. Ornelas, 517 U.S. 690, 696, 134 L. Ed. 2d 911, 919 (1996)). \u201c[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.\u201d Illinois v. Gates, 462 U.S. 213, 243 n.13, 76 L. Ed. 2d 527, 552 n.13 (1983).\nPetitioner does not contest that there was sufficient evidence to support part of the trial court\u2019s Finding of Fact No. 3: that Petitioner was involved in a severe one car accident. Nor does Petitioner contest the sufficiency of the evidence regarding Finding of Fact No. 6: that Trooper Ellerbe conveyed to Trooper McCray that Petitioner had an odor of alcohol on or about her person. Petitioner argues, however, that these findings do not support the trial court\u2019s conclusion that Captain McCray had reasonable grounds to arrest Petitioner.\nRegarding the smell of alcohol, an arresting officer is permitted to base his determination of reasonable grounds on information given by one known to him to be reasonably reliable. Melton v. Hodges, 114 N.C. App. 795, 798, 443 S.E.2d 83, 85 (1994).\nIn this case, an officer on the scene smelled an odor of alcohol about the Petitioner. That the arresting officer did not himself make the same observation does not diminish its weight, since a probable cause determination may be based upon the hearsay of a reliable witness. Id.-, see also State v. Leonard, 87 N.C. App. 448, 454, 361 S.E.2d 397, 400 (1987) (\u201cThe direct personal observation by the officer/ affiant or his fellow officers is plainly a reliable basis for issuance of a warrant.\u201d), appeal dismissed and disc. review denied, 321 N.C. 746, 366 S.E.2d 867 (1988). The smell of alcohol could therefore contribute to the officer\u2019s determination of probable cause, and supports the trial court\u2019s determination that Petitioner was arrested based upon reasonable grounds.\nThe second factor supporting a determination of probable cause is the nature of the car accident itself. Petitioner is correct to assert that the car accident alone does not support a finding of probable cause. As this Court observed in State v. Hollingsworth, the surrounding evidence must also be considered:\nInvolvement in an automobile accident cannot be said per se to provide probable cause sufficient to order a blood alcohol test, but defendant\u2019s involvement was due first to a miscalculation in judging the distance between his automobile and [another], then to an inability to prevent his high-speed crossing of the median. These circumstances, known to [the officer] before he ordered the blood drawn, indicated an impairment of coordination. [The officer] also smelled the odor of alcohol from the crushed passenger side of defendant\u2019s Chevrolet.\nState v. Hollingsworth, 77 N.C. App. 36, 44, 334 S.E.2d 463, 468 (1985) (emphasis added).\nIn this case, the record shows that Captain McCray observed the extensive damage to the vehicle at the scene of the accident and could have concluded that it resulted from the driver\u2019s inability to prevent her high-speed swerving off the road. The nature of this accident could indicate \u201can impairment of coordination\u201d of the part of Petitioner. Id. Captain McCray was entitled to consider the severity and circumstances of the crash among the totality of the circumstances used to determine probable cause.\nThe facts of this case resemble Richardson v. Hiatt, in which that petitioner was also involved in a one-car accident. 95 N.C. App. 196, 381 S.E.2d 866, reh\u2019g granted and modified on other grounds, 95 N.C. App. 780, 384 S.E.2d 62 (1989). The petitioner in that case lost control of his vehicle, it went off the road and ended up in a ditch. The accident happened \u201cwhen driving conditions were excellent. It occurred on a clear day in the middle of the afternoon.\u201d Id. at 200, 381 S.E.2d at 868. Petitioner claimed that he fell asleep at the wheel. The only other evidence used to establish probable cause was the smell of alcohol. On appeal, this Court concluded that the officer had probable cause to arrest for DWI. \u201cThe evidence surrounding the accident and petitioner\u2019s reason for its occurrence, coupled with the strong odor of alcohol detected from him, gave [the officer] reasonable grounds to arrest petitioner for impaired driving.\u201d Id.\nIt is true that in this case, unlike Richardson, the trial court did not make any Findings of Fact regarding the driving conditions on the day of the crash. But probable cause to arrest requires only a fair probability of criminal activity; it does not require proof beyond a reasonable doubt, \u201cit does not demand any showing that [the officer\u2019s] belief be correct or more likely true than false.\u201d Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 513-14 (1983), see also Church v. Powell, 40 N.C. App. 254, 252 S.E.2d 229 (1979). It is the fact and severity of the one-car accident coupled with some indication of alcohol consumption on the part of the driver that is determinative of probable cause to arrest.\nAccordingly, we hold that the nature of Petitioner\u2019s car accident and the smell of alcohol adequately support the trial court\u2019s Conclusion of Law that Petitioner was arrested based on reasonable grounds.\nII\nPetitioner next argues that the trial court erred in its Findings of Fact and Conclusions of Law with respect to Petitioner\u2019s willful refusal to submit to a test of her breath. Because there was competent evidence presented to the trial court that Petitioner willfully failed to follow the officer\u2019s instructions, we disagree.\nRefusal has been defined by our Supreme Court as \u201cthe 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.\u201d Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 233, 182 S.E.2d 553, 558, reh\u2019g denied, 279 N.C. 397, 183 S.E.2d 241 (1971) (quoting Black\u2019s Law Dictionary, 4th Ed.). Indeed, a \u201cwillful refusal\u201d occurs whenever a driver:\n(1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.\nEtheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980). \u201cObviously, one may refuse the test by inaction as well as by words.\u201d Mathis v. North Carolina Div. of Motor Vehicles, 71 N.C. App. 413, 415, 322 S.E.2d 436, 438 (1984).\nAs the State points out in its brief, Petitioner has not assigned error to Findings of Fact Nos. 19 through 22, and these findings are therefore binding on appeal. Campbell, 188 N.C. App. 701, 656 S.E.2d 721, 724. These findings establish that Petitioner did not provide a valid breath sample to the Intoxilyzer instrument; on several attempts Petitioner stopped blowing after one second and did. not provide a continuous sample of breath as instructed; and Petitioner was provided numerous opportunities to provide a valid sample.\nPetitioner challenges Finding of Fact No. 23 that Trooper McCray did not observe any physical or medical conditions which would have precluded Petitioner from providing a valid sample of breath. Petitioner contends that the evidence was undisputed that Petitioner was suffering from injuries sustained in her car accident. Petitioner also challenges Finding of Fact No. 24 that Petitioner did not complain of a neck injury until she was at the Intoxilyzer room. Petitioner contends that the State\u2019s own evidence indicates that Petitioner complained of neck injury at the scene of the accident.\nThe essence of Petitioner\u2019s objection to Findings of Fact Nos. 23 and 24 is the contention that the trial court did not adequately appreciate Petitioner\u2019s injuries. Petitioner does not object to that part of Finding of Fact No. 24 in which the trial court recognized that Petitioner complained that her neck hurt, and that existing neck pains were worsened by the accident. Insofar as this finding is supported by competent evidence, Petitioner can not complain that the trial court did not appreciate her injuries. Captain McCray testified at the hearing that Petitioner appeared to be in good health. This is competent evidence to support Finding of Fact No. 23.\nThe evidence was contradictory with regard to when Petitioner first complained of the neck injury. Captain McCray testified at one point that Petitioner started complaining of her neck injury \u201c[a]fter the fourth time [Petitioner attempted to blow] and thereafter;\u201d but later he testified that he had not performed field sobriety tests earlier at the scene of the accident because Petitioner complained of her neck injury. As noted above, competent evidence does not mean uncontradicted evidence. Although the testimony was not entirely consistent, there was competent evidence to support Finding of Fact No. 24.\nPetitioner also challenges Finding of Fact No. 25 that Trooper McCray would not have requested Petitioner to submit to a test of her breath had she been physically unable to do so. This Finding of Fact is supported by the following excerpt from the transcript:\nQ: If a person is not physically able to provide a sample of\u2014 sample on an intoxilyzer instrument, are you going to mark them as a willful refusal?\n[Captain McCray]: No, sir.\nQ: Did you believe the Petitioner in this case was physically able to provide a sample?\n[Captain McCray]: Yes, sir.\nFinding of Fact No. 25 is supported by competent evidence.\nPetitioner also challenges Finding of Fact No. 26 that Trooper McCray believed Petitioner was physically able to provide a sample of breath. Insofar as Petitioner objects to the admissibility of Captain McCray\u2019s belief, this issue was not preserved for appeal. Insofar as Petitioner objects to the Finding of Fact itself, this Finding of Fact is fully supported by the portion of the transcript excerpted above.\nFinally, Petitioner challenges Finding of Fact No. 27 that Petitioner did not follow the instructions of Trooper McCray in providing a sample of her breath for chemical analysis. Petitioner concedes that she \u201cultimately did not provide a valid sample of her breath.\u201d Petitioner objects, however, \u201c[t]o the extent that Finding of Fact No. 27 implies that the Petitioner was willfully not following the instructions of Trooper McCray . . . .\u201d This argument is more appropriately directed at the trial court\u2019s Conclusions of Law, and is dealt with as such.\nPetitioner\u2019s argument that the trial court erred in not making additional Findings of Fact is without merit. \u201cIt is immaterial that the evidence may support a finding not made by the superior court. Our review is limited to whether competent evidence supports the findings that were made.\u201d Ferguson v. Kittens, 129 N.C. App. 131,135, 497 S.E.2d 722, 724, disc. review denied and appeal dismissed, 348 N.C. 496, 510 S.E.2d 383 (1998). See also Tolbert v. Hiatt, 95 N.C. App. 380, 385, 382 S.E.2d 453, 456 (1989) (\u201c[T]he trial court need not recite every evidentiary fact presented at the hearing, but must only make specific findings on the ultimate facts established by the evidence that are determinative of the questions raised in the action and essential to support its conclusions.\u201d).\nPetitioner\u2019s real objection concerns the trial court\u2019s Conclusion of Law that she willfully refused to submit to a test of her breath. Petitioner contends that \u201c[e]ven if left undisturbed, the trial court\u2019s Findings of Fact Nos. 19 through 27 fail to adequately support the Conclusion of Law . . . .\u201d Petitioner asserts that before the trial court could conclude that there was a willful refusal, it was required to find \u201ca positive intention to disobey\u201d the charging officer and \u201ca voluntary decision to evade the test.\u201d Joyner, 279 N.C. at 233, 182 S.E.2d at 558. We note that the State\u2019s burden of proof in this civil action was to establish Petitioner\u2019s willful refusal by a preponderance of the evidence. Powers v. Tatum,-N.C. App. -,-, 676 S.E.2d 89, 93, disc. review denied, 363 N.C. 583, 681 S.E.2d 784 (2009).\nThe facts of this case are similar to those in Tedder v. Hodges, 119 N.C. App. 169, 457 S.E.2d 881 (1995). The Petitioner in that case was arrested for DWI and taken to a breathalyzer room where he agreed to submit to a chemical analysis. The chemical analyst observed the mandatory waiting period and then requested that Petitioner blow into the machine. \u201c[Petitioner blew into the machine five or six times, but he never blew long enough for a sufficient sample.\u201d Id. at 172, 457 S.E.2d at 883. The officer wrote Petitioner up as a refusal, and Petitioner\u2019s license was revoked pursuant to N.C. Gen. Stat. \u00a7 20-16.2. \u201cPetitioner subsequently was treated at Forsyth Memorial Hospital for an injury to his nose and for chest congestion.\u201d Id.\nPetitioner in Tedder petitioned the superior court for a hearing regarding the revocation of his driver\u2019s licence. Petitioner testified that \u201che could not blow into the machine long enough to provide an adequate sample because he had a history of bronchitis and had been in a fight earlier on the day he tried to blow into the machine.\u201d Id. The officer testified that \u201cshe could not tell if petitioner physically could not blow into the machine or if he was intentionally not blowing.\u201d Id. at 175, 457 S.E.2d at 885. On review, this Court held that the evidence showed petitioner\u2019s failure to follow the instructions of the breathalyzer operator. \u201cFailure to follow the instructions of the breathalyzer operator is an adequate basis for the trial court to conclude that petitioner willfully refused to submit to a chemical analysis.\u201d Id. (citing Bell v. Powell, 41 N.C. App. 131, 135, 254 S.E.2d 191, 194 (1979)).\nPetitioner in Tedder argued further that the trial court erred in its refusal to enter judgment on his behalf because the State failed to establish a willful refusal. Petitioner maintained that he attempted to provide an adequate breath sample but could not because of his bronchitis and an injured nose. Id.\nWhile this evidence could have led the trial court to determine that Petitioner did not willfully refuse to blow into the breathalyzer machine, we conclude that there was still competent evidence to support the trial court\u2019s conclusion that petitioner willfully refused. When the trial judge is the trier of fact, \u201che has the duty to pass upon the credibility of the witnesses who testify. He decides what weight shall be given to the testimony and the reasonable inferences to be drawn therefrom. The appellate court cannot substitute.itself for the trial judge in this task.\u201d\nId. at 176, 457 S.E.2d at 885 (quoting General Specialities Co. v. Nello L. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979)).\nIn the present case, Petitioner does not dispute Finding of Fact No. 20:\n20. With the request to provide a valid sample of breath, the Petitioner placed the mouthpiece into her mouth and blew into the Intoxilyzer instrument for one second and stopped blowing. The Petitioner did not provide a continuous sample of breath as instructed by Trooper McCray.\nThus, Petitioner failed to follow the officer\u2019s instructions, and \u2014 nothing else appearing \u2014 the officer was justified in writing up Petitioner as a refusal. Bell v. Powell, 41 N.C. App. 131, 135, 254 S.E.2d 191, 194 (1979). Petitioner contends, however, that the trial court\u2019s Conclusion of Law is contrary to the uncontradicted evidence indicating that she did not willfully refuse to submit to the test.\nWhile there may be uncontradicted evidence that Petitioner was involved in a severe accident, and that she complained of a neck injury both at the scene and in the breathalyzer room, there is also evidence that Petitioner was not unable to comply with the officer\u2019s instructions. She provided a sample of her breath to Trooper Ellerbe when he asked her to submit to a PBT at the scene of the accident. Captain McCray did not observe any coughing, wheezing, or shortness of breath on the part of Petitioner. Finally, Captain McCray testified that he believed Petitioner was physically able to provide a valid sample to the Intoxilyzer.\nWhile Petitioner\u2019s injuries were perhaps more recent than those of petitioner in Tedder, the issues raised by petitioners in both cases are the same. In both cases, petitioners agreed to submit to a test of their breath and failed to maintain sufficient pressure to provide a valid sample. In both cases, petitioners claimed that physical injuries not apparent to the chemical analyst made cooperation impossible. The argument in Tedder was perhaps more compelling since there is no evidence that the petitioner in that case had already provided one valid breath sample. See Tedder, 119 N.C. App. at 171, 457 S.E.2d at 883 (noting only that petitioner performed poorly on several roadside sobriety tests).\nOn the basis of Tedder, we hold that the trial judge in this case, who was in a better position to determine the credibility of the witnesses, did not err in concluding as a matter of law that Petitioner willfully refused to submit to a test of her breath. \u201c[T]he trial court\u2019s conclusion of law regarding petitioner\u2019s willful refusal is supported by adequate findings and by competent evidence in the record.\u201d Tedder, 119 N.C. App. at 177, 457 S.E.2d at 886.\nAffirmed.\nJudge JACKSON concurs.\nJudge HUNTER, Jr. dissents in a separate opinion.\nHUNTER, JR., Robert N., Judge, dissenting.\nFacts\nThe following evidence was presented to the trial court at the revocation hearing: On the afternoon of 23 September 2006, Karen Steinkrause (\u201cpetitioner\u201d) was returning to Wilmington from Raleigh and stopped to have lunch before driving home. At lunch, petitioner had a salad and approximately one glass of wine. Prior to leaving Raleigh, petitioner noticed that the left front tire of her vehicle did not look right and decided to find a place where she could check her tire pressure. As petitioner merged onto Interstate Highway 40, her vehicle started pulling to the left. Petitioner subsequently lost control of her vehicle and it rolled several times before landing upside down in a ditch next to the interstate. Petitioner remained hanging upside down until the rescue personnel arrived, and during that time felt \u201celectric shock\u201d sensations in her neck and arm.\nPetitioner suffered lacerations to her left arm as a result of the accident and was concerned about her neck, because she had previously suffered neck injuries from falling off horses, and believed that the accident had exacerbated those injuries. Petitioner, who has a background in nursing, did not agree with how the rescue personnel dressed the wounds on her arm, so she dressed the wounds herself.\nAt approximately 5:00 p.m., Trooper Kenneth Ellerbe (\u201cTrooper Ellerbe\u201d) of the North Carolina Highway Patrol was called to the scene of petitioner\u2019s car accident. Upon his arrival, he interviewed petitioner, and she voluntarily made the following written statement:\nMy left front tire looked flat.... Was going to stop again to check air pressure. Having an argument on phone. Car swerved. Felt I could not regain control. Swerved onto inside lane and median, and car flipped. Zero loss of consciousness. Apparently superficial lacerations to left elbow area.\nTrooper Ellerbe asked petitioner to submit to a portable breath test (\u201cPBT\u201d). When petitioner attempted to blow into the PBT, she \u201cfelt like electricity was going through [her] neck and [her] arms.\u201d She told Trooper Ellerbe that \u201cit hurt to bend [her] neck\u201d and that \u201cit hurt to blow\u201d into the PBT. Petitioner successfully provided one breath sample on PBT, but failed to provide a second sample.\nShortly after Trooper Ellerbe administered the PBT, Trooper McCray took over the investigation. Before leaving the scene of the accident, Trooper Ellerbe told Trooper McCray the results of petitioner\u2019s first PBT, and that no result was obtained following his second request. Trooper Ellerbe also conveyed to Trooper McCray that he had smelled alcohol on or around petitioner. The results of the PBT were not admitted into evidence at the hearing before the trial court, and therefore, were not considered in its \u201creasonable grounds\u201d determination.\nTrooper McCray testified that he did not smell alcohol on petitioner, nor did he observe any slurred speech or difficulty in communicating. He noticed that petitioner\u2019s clothes were dirty as a result of having to be pulled out of her car, and made the following observations of petitioner in his report: \u201cclothing, dirty and sleepy.\u201d He also noted in his report that petitioner \u201cclaimed [her] neck was hurt.\u201d Based on \u201cthe collision, the damage of the vehicle and the testimony of Trooper Ellerbe prior to arrival,\u201d Trooper McCray believed petitioner had committed an implied consent offense and placed her under arrest for driving while impaired.\nAnalysis\nPetitioner contends that the trial court erred in concluding as a matter of law that she was arrested \u201cbased upon reasonable grounds.\u201d Petitioner argues that the conclusion was not supported by the trial court\u2019s findings of fact. I agree that petitioner was not arrested on reasonable grounds, and therefore, pursuant to N.C. Gen. Stat. \u00a7 20-16.2 (2007), I believe her driver\u2019s license should not be revoked. See N.C.G.S. \u00a7 20-16.2.\nBecause we do not have evidence of the result of petitioner\u2019s PBT, the only factual findings regarding Trooper McCray\u2019s probable cause to arrest petitioner concerns her car accident and Trooper Ellerbe\u2019s statement that he had detected an odor of alcohol. Based on the totality of the circumstances, there appears to be insufficient factual findings to support the conclusion that petitioner was arrested based upon reasonable grounds.\nWhile involvement in an automobile accident can contribute to the totality of the circumstances, it is not sufficient per se to provide probable cause of an implied consent offense. State v. Hollingsworth, 77 N.C. App. 36, 44, 334 S.E.2d 463, 468 (1985). In Richardson v. Hiatt, 95 N.C. App. 196, 381 S.E.2d 866 (1989), the petitioner was involved in a one-car accident at approximately 3:00 p.m, when his vehicle went off the road into a ditch. Id. at 197, 381 S.E.2d at 867. On appeal, this Court concluded that probable cause existed to arrest the petitioner, because the accident \u201coccurred when driving conditions were excellent... on a clear day in the middle of the afternoon.\u201d The petitioner told the arresting officer that he had fallen asleep at the wheel, and the officer detected a strong odor of alcohol on the petitioner. Id. at 200, 381 S.E.2d at 868.\nThe petitioner in Moore v. Hodges, 116 N.C. App. 727, 449 S.E.2d 218 (1994), was also involved in a one-car accident. Id. at 730, 449 S.E.2d at 220. In that case, we held that the facts were sufficient to support a finding of probable cause given that the petitioner admitted that the accident was her fault, she had been drinking liquor earlier that evening, she smelled of alcohol, she had mumbled speech, and registered .10 or higher on the alcosensor. Id.; see also State v. Tedder, 169 N.C. App. 446, 448-51, 610 S.E.2d 774, 776-77 (2005) (finding substantial evidence of impairment where officer smelled alcohol, the defendant swayed when standing, slurred her speech, and was unable to recite the alphabet); State v. Thomas, 127 N.C. App. 431, 434, 492 S.E.2d 41, 43 (1997) (holding that there was probable cause to justify the defendant\u2019s arrest due to his disorderly appearance, red glassy eyes, strong odor of alcohol, and inability to produce a driver\u2019s license or registration); State v. Rogers, 124 N.C. App. 364, 369, 477 S.E.2d 221, 223-24 (1996) (finding probable cause where the police officer smelled a strong odor of alcohol on the defendant and the defendant had a blood alcohol concentration of .13).\nHere, petitioner contends that the undisputed evidence at trial shows that her car accident was caused by her left front tire, and that this mechanical failure was not indicative of any fault or impairment on her part. However, such evidence is not included in the trial court\u2019s findings. Furthermore, \u201c[p]robable cause exists if the facts and circumstances at that moment within the charging officer\u2019s knowledge and of which the officer had reasonably trustworthy information are such that a prudent man would believe that the suspect had committed or was committing an offense.\u201d Moore, 116 N.C. App. at 730, 449 S.E.2d at 220 (emphasis added). The trial court made the following factual findings about petitioner\u2019s accident:\n1. Around 5:00 p.m. on September 26th, 2006, Trooper K.J. McCray of the North Carolina Highway Patrol was called to the scene of an accident off of 1-40 in Wake County.\n2. Upon [their] arrival... [t]he Troopers discussed the wreck and the driver of the vehicle, the Petitioner.\n3. Petitioner was involved in a single car accident, wherein the vehicle she operated drove off the side of the entrance ramp to 1-40. The vehicle rolled several times until it came to a stop in a ditch off of the side of the interstate.\nUnlike Richardson and Moore, the trial court made no factual findings regarding the weather or driving conditions nor did it find that the accident was petitioner\u2019s fault.\nRespondent claims that we should infer that the driving conditions were ordinary, since the factual findings did not state otherwise. This is an impermissible speculation, which cannot be used to support probable cause. Moreover, because petitioner did not admit to consuming alcohol until after her arrest, Finding of Fact No. 9 cannot be considered in our reasonable grounds determination. There are no findings about a positive result of testing for alcohol, nor are there factual findings that petitioner exhibited signs of alcohol use such as slurred speech or difficulty communicating.\nThe only other factual finding that is relevant to the conclusion is that \u201cTrooper Ellerbe conveyed to Trooper McCray that the Petitioner had an odor of alcohol on or about her person.\u201d Contrary to the cases discussed above, Trooper McCray did not smell alcohol on petitioner, but was told by Trooper Ellerbe that Trooper Ellerbe had detected an odor of alcohol. Respondent is correct that an arresting officer is permitted to base his determination of reasonable grounds \u201cupon information given to the officer by another, the source of the information being reasonably reliable[.]\u201d Melton v. Hodges, 114 N.C. App. 795, 798, 443 S.E.2d 83, 85 (1994). Given the circumstances of this case, we recognize that Trooper McCray did not detect an odor of alcohol on petitioner at any point in his investigation.\nTrooper McCray had a sufficient opportunity to observe petitioner independently and corroborate Trooper Ellerbe\u2019s information. The fact that Trooper McCray failed to detect an odor of alcohol on petitioner, even after Trooper Ellerbe had told him that he had, weakens the reliability of Trooper Ellerbe\u2019s observation. While the probable cause standard may be incapable of precise definition, in light of the evidence presented in this case, it is difficult to say a reasonably prudent or cautious person would suspect that petitioner was driving while intoxicated.\nTrooper McCray\u2019s second-hand account of an odor of alcohol, which he was unable to independently corroborate after sufficient opportunity, in combination with a car accident is not sufficient to support a finding of probable cause. Thus, in my opinion, the trial court erred in its conclusion that petitioner was arrested based upon reasonable grounds.\nConclusion\nBecause I believe the trial court erred in concluding that there were reasonable grounds to arrest petitioner for an implied consent offense, her driver\u2019s license should not be revoked under N.C. Gen. Stat. \u00a7 20-16.2. See N.C. Gen. Stat. \u00a7 20-16.2. Accordingly, I respectfully dissent.\n. Petitioner\u2019s name is spelled Steinkraus in her brief but Steinkrause in the transcript and judgment.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "George B. Currin, for petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel for respondent-appellee." ], "corrections": "", "head_matter": "KAREN STEINKRAUSE, Petitioner v. GEORGE TATUM, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR VEHICLES, Respondent\nNo. COA08-1080\n(Filed 8 December 2009)\n1. Motor Vehicles\u2014 driving while impaired \u2014 probable cause\u2014 totality of circumstances\nThe trial court did not err in a driving while impaired case by concluding as a matter of law that probable cause existed for petitioner\u2019s arrest based on the nature of petitioner\u2019s single car accident and the smell of alcohol.\n2. Motor Vehicles\u2014 driving while impaired \u2014 sufficiency of findings of fact and conclusions of law \u2014 willful refusal to submit to breath test\nThe trial court did not err in a driving while impaired case by its findings of fact and conclusions of law with respect to petitioner\u2019s willful refusal to submit to a breath test. Even though petitioner claimed that physical injuries not apparent to the chemical analyst made cooperation impossible, petitioner failed to follow the officer\u2019s instructions, there was evidence that petitioner was able to comply with the officer\u2019s instructions, and the trial judge, who was in a better position to determine the credibility of the witnesses, found that petitioner willfully refused.\nJudge HUNTER, Jr., Robert N., dissenting.\nAppeal by Petitioner from judgment entered 27 March 2008 by Judge Orlando F. Hudson, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 5 May 2009.\nGeorge B. Currin, for petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel for respondent-appellee." }, "file_name": "0289-01", "first_page_order": 317, "last_page_order": 332 }