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  "name_abbreviation": "Lee v. Gore",
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    "judges": [
      "Judge BRYANT concurs.",
      "Judge WYNN dissents with a separate opinion."
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    "parties": [
      "RICHARD JAMES LEE, Petitioner-Appellant v. WILLIAM C. GORE, JR., as Commissioner of the Division of Motor Vehicles, North Carolina Department of Transportation, Respondent-Appellee"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nPetitioner, a resident and registered driver of the State of Florida, was driving through Wilkes County just before midnight on 22 August 2007, when he was stopped by Officer Jason Ratliff of the Wilkesboro Police Department. Officer Ratliff testified at a later review hearing before the Division of Motor Vehicles (the Division) that he believed probable cause existed to arrest Petitioner for driving while impaired. Officer Ratliff transported Petitioner to an intake center to administer a chemical analysis (by an Intoxilyzer alcohol analyzer) to determine the concentration of alcohol in Petitioner\u2019s body. Officer Ratliff testified that Petitioner never specifically refused to submit to the chemical analysis. Officer Ratliff told Petitioner several times that failure to take the chemical analysis would result in Petitioner\u2019s being marked as willfully refusing the chemical analysis, and would result in the revocation of Petitioner\u2019s North Carolina driving privileges. However, Petitioner did not agree to take the Intoxilyzer test and Officer Ratliff marked \u201crefused\u201d on a form DHHS 3908 at 12:47 a.m. on 23 August 2007.\nOfficer Ratliff testified he then went to a magistrate to execute an affidavit concerning Petitioner\u2019s refusal to submit to a chemical analysis. Form DHHS 3907, titled \u201cAffidavit and Revocation Report,\u201d was created by the Administrative Office of the Courts for this purpose. Form DHHS 3907 includes fourteen sections with an empty box before each section. The person swearing to the accuracy of the affidavit, having been \u201cfirst duly sworn,\u201d checks the boxes relevant to the circumstances,, and then signs the affidavit in front of an official authorized to administer oaths and execute affidavits. Section fourteen of form DHHS 3907 states: \u201cThe driver willfully refused to submit to a chemical analysis as indicated on the attached [form] \u25a1 DHHS 3908, \u25a1 DHHS 4003.\u201d 3 Officer Ratliff testified that he did not check the box for section fourteen and the affidavit he sent to the Division did not have the box for section fourteen checked. Therefore, the \u201cAffidavit and Revocation Report\u201d sent to the Division did not state that Petitioner had willfully refused to submit to a chemical analysis.\nUpon receipt of the form DHHS 3907 sent by Officer Ratliff, the Division revoked Petitioner\u2019s North Carolina driving privileges. Petitioner requested a review hearing to contest the revocation, and a hearing was conducted on 20 November 2007 before Administrative Hearing Officer P.M. Snow. At this hearing, it was discovered that the copy of form DHHS 3907 received by the Division had an \u201cx\u201d in the section fourteen box. All the other boxes marked on the form DHHS 3907 contained check marks, not \u201cx\u2019s.\u201d Petitioner\u2019s copy of the form DHHS 3907 did not contain the \u201cx\u201d in the box preceding section fourteen.\nHearing Officer Snow decided that the revocation of Petitioner\u2019s North Carolina driving privileges was proper, and Petitioner appealed to Wilkes County Superior Court, which affirmed the decision of Hearing Officer Snow. Petitioner then appealed to this Court. Our Court held that the Division lacked the authority to revoke Petitioner\u2019s North Carolina driving privileges, because the Division never received an affidavit indicating that Petitioner had willfully refused to submit to a chemical analysis of his blood alcohol level. We therefore vacated the order of the superior court affirming the decision of Hearing Officer Snow, and remanded to the Division for reinstatement of Petitioner\u2019s North Carolina driving privileges. Lee v. Gore, \u2014 N.C. App. \u2014, 688 S.E.2d 734 (2010) (filed 19 January 2010). Respondent filed a petition for rehearing in the matter on 23 February 2010, requesting our Court to reconsider certain issues. By order filed 19 March 2010, we granted Respondent\u2019s petition, limited to certain issues, and directed Respondent and Petitioner to submit briefs addressing the limited issues included in our order. We now file an amended opinion in this matter in light of the additional arguments presented in the parties\u2019 supplemental briefs. This opinion supersedes and replaces the opinion filed 19 January 2010, Lee v. Gore, \u2014 N.C. App. \u2014, 688 S.E.2d 734 (2010).\nAnalysis \u2014 Willful Refusal\nIn Petitioner\u2019s second argument, he contends the trial court erred in upholding the Division\u2019s revocation of Petitioner\u2019s North Carolina driving privileges because the Division was without authority to revoke Petitioner\u2019s driving privileges.\nN.C. Gen. Stat. \u00a7 20-1 (2006) states: \u201cThe Division of Motor Vehicles of the Department of Transportation is established. This Chapter sets out the powers and duties of the Division.\u201d Therefore, we must look to N.C. Gen. Stat. \u00a7 20-1 et seq. for the full scope of the duties and powers conferred upon the Division by the General Assembly. N.C. Gen. Stat. \u00a7 20-16.2 (2006) is the statute delineating the powers of the Division when a person has been charged with an implied-consent offense, and that person refuses to submit to a chemical analysis.\n(c)Request to Submit to Chemical Analysis. \u2014 A law enforcement officer or chemical analyst shall designate the type of test or tests to be given and may request the person charged to submit to the type of chemical analysis designated. If the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section, but the refusal does not preclude testing under other applicable procedures of law.\n(cl)Procedure for Reporting Results and Refusal to Division.\u2014 Whenever a person refuses to submit to a chemical analysis . . . the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating []:\n(5) The results of any tests given or that the person willfully refused to submit to a chemical analysis.\nThe officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.\n(d)Consequences of Refusal; Right to Hearing before Division; Issues. \u2014 Upon receipt of a properly executed affidavit required by subsection (cl), the Division shall expeditiously notify the person charged that the person\u2019s license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.\n(e)Right to Hearing in Superior Court. \u2014 If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court for a hearing on the record. The superior court review shall be limited to whether there is sufficient evidence in the record to support the Commissioner\u2019s findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.\nN.C.G.S. \u00a7 20-16.2 (emphasis added).\nRespondent argues that our Court should look to the title of N.C.G.S. \u00a7 20-16.2: \u201cImplied consent to chemical analysis; mandatory revocation of license in event of refusal; right of driver to request analysis[,]\u201d and to section (a) of that statute, which mandates that a person authorized to perform a chemical analysis must inform the suspect of certain rights before administering the chemical analysis. N.C.G.S. \u00a7 20-16.2(a) states, in part:\nBasis for Officer to Require Chemical Analysis; Notification of Rights. \u2014 Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.\nBefore any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test of a person\u2019s breath or a law enforcement officer who is authorized to administer chemical analysis of the breath, who shall inform the person orally and also give the person a notice in writing that:\n(1) You have been charged with an implied-consent offense. Under the implied-consent law, you can refuse any test, but your drivers license will be revoked for one year and could be revoked for a longer period of time under certain circumstances, and an officer can compel you to be tested under other laws.\nN.C.G.S. \u00a7 20-16.2(a). Respondent contends that the Division is empowered to suspend driving privileges when \u201ca person refuses to submit to chemical analysis[.]\u201d Respondent\u2019s presentation of the requirements of N.C.G.S. \u00a7 20-16.2 seems to negate any requirement that the refusal be \u201cwillful.\u201d However, Respondent also states that N.C.G.S. \u00a7 2046.2(d) \u201cis nothing more than a statutory embodiment of due process protections for persons accused of willfully refusing chemical analysis, and [the Division] is not prohibited from suspending a person\u2019s driving privilege without receipt of a \u2018properly executed affidavit.\u2019 \u201d\nThe appellate decisions of our Courts make it clear that a person\u2019s refusal to submit to chemical analysis must be willful in order to suspend that person\u2019s driving privileges. See Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980) (citation omitted) (willful refusal permitting suspension of driving privileges must include actions constituting \u201c \u2018a conscious choice purposefully made\u2019 \u201d); Steinkrause v. Tatum, \u2014 N.C. App. \u2014, \u2014, 689 S.E.2d 379, 381 (2009) (\u201cN.C. Gen. Stat. \u00a7 20-16.2 . . . authorizes a civil revocation of the driver\u2019s license when a driver has willfully refused to submit to a chemical analysis.\u201d) (emphasis added); State v. Summers, 132 N.C. App. 636, 643-44, 513 S.E.2d 575, 580 (1999) (\u201cA defendant\u2019s refusal to submit to the intoxilyzer test after being charged with DWI can give rise to civil proceedings to revoke defendant\u2019s driver license, but only if the refusal is a \u2018willful refusal.\u2019 See N.C. Gen. Stat. \u00a7 20-16.2.\u201d) (emphasis added); In re Suspension of License of Rogers, 94 N.C. App. 505, 510, 380 S.E.2d 599, 602 (1989) (matter remanded for findings regarding whether the petitioner\u2019s refusal to submit to chemical analysis was willful).\nRespondent implicitly argues, however, that mere refusal of a chemical analysis must imply willfulness, and the Division may therefore revoke a person\u2019s driving privileges based solely on the fact that that person refused to take the test. If we were to adopt Respondent\u2019s reading of N.C.G.S. \u00a7 20-16.2, no proof of a \u201cwillful\u201d refusal would be required for the Division to revoke a person\u2019s driving privileges; however, pursuant to N.C.G.S. \u00a7 20-16.2(cl)(5) a sworn affidavit indicating that person willfully refused chemical analysis would be required to trigger the Division\u2019s obligation to notify that person that his driving privileges had been suspended. Such a result cannot have been the intent of the General Assembly. In re Mitchell-Carolina Corp., 67 N.C. App. 450, 452-53, 313 S.E.2d 816, 818 (1984) (\u201cThe rules of statutory construction provide that \u2018the language of a statute will be interpreted so as to avoid an absurd consequence. . . .\u2019 \u2018Where a literal reading of a statute \u201cwill lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.\u201d \u2019 \u201d) (internal citations omitted).\nNor are we convinced by Respondent\u2019s argument that, because the form DHHS 3908 was sent to the Division along with the affidavit, and the form DHHS 3908 was marked \u201crefused,\u201d the requirement that the sworn affidavit include an affirmative statement of Petitioner\u2019s willful refusal was satisfied. Although form DHHS 3907 includes boxes to check indicating that either form DHHS 3908 or form DHHS 4003 is attached, nowhere in N.C. Gen. Stat. \u00a7 20-16.2 is it required that a form DHHS 3908 (or a form DHHS 4003) be incorporated in the affidavit mandated under N.C.G.S. \u00a7 20-16.2(cl). We hold that a form DHHS 3908 is not a substitute for a \u201cproperly executed affidavit\u201d as required by N.C. Gen. Stat. 20-16.2(cl). This is not to indicate, however, that a form DHHS 3908, or other relevant documents, may not be attached to a properly executed affidavit. We hold only that the affidavit, in whatever form submitted, must indicate that a person\u2019s refusal to submit to chemical analysis was willful.\nN.C.G.S. \u00a7 20-16.2 required that Officer Ratliff complete an affidavit indicating that Petitioner had willfully refused the chemical analysis, and that Officer Ratliff, before an \u201cofficial authorized to administer oaths and execute [affidavits],\u201d swear under oath to the truth of the information included in the affidavit. Officer Ratliff quite admirably and honestly informed Hearing Officer Snow that Officer Ratliff failed to check the box indicating Petitioner had willfully refused to submit to the chemical analysis before he executed the affidavit in front of the magistrate. Therefore, the requirements of N.C.G.S. \u00a7 20-16.2(cl) were not met.\nRespondent further argues that our Court did not properly consider the findings of fact from Hearing Officer Snow\u2019s 20 November 2007 decision. Respondent first contends that one of Hearing Officer Snow\u2019s rulings on a motion made by Petitioner was a finding of fact. In denying Petitioner\u2019s motion, Hearing Officer Snow ruled in part: \u201cThe affidavits received from Officer Ratliff were Division exhibits One and Two. Exhibit Two, DHHS 3908, which is referred to in the affidavit . . . clearly shows a refusal stamped on the test ticket. Thereby giving the [Division authority to revoke [P]etitioner\u2019s driving privilege.\u201d This ruling, which includes conclusions of law, is not a finding of fact. The only fact contained in this ruling is that the DHHS 3908 in this case was clearly marked \u201crefused.\u201d\nRespondent next directs our Court to findings of fact made by the superior court. First, these findings of fact are not relevant to Respondent\u2019s contention that we failed to properly consider the findings of Hearing Officer Snow, in that the findings were not made by Hearing Officer Snow. Second, the superior court is directed by statute to act as an appellate court, not as a trial court, in its review. N.C.G.S. \u00a7 20-16.2(e) states:\nRight to Hearing in Superior Court. \u2014 If the revocation for a willful refusal is sustained after the hearing, the person whose license has been revoked has the right to file a petition in the superior court for a hearing on the record. The superior court review shall be limited, to whether there is sufficient evidence in the record to support the Comhnissioner\u2019s findings of fact and whether the conclusions of law are supported by the findings of fact and whether the Commissioner committed an error of law in revoking the license.\nN.C.G.S. \u00a7 20-16.2(e) (emphasis added). Because the superior court was acting as an appellate court, our Court does not review the additional findings of fact made by the superior court, which are surplusage, id. -, see also Meza v. Division of Soc. Servs., 364 N.C. 61, 65-73, 692 S.E.2d 96, 99-104 (2010); N.C. Dep\u2019t of Env\u2019t & Natural Res. v. Carroll, 358 N.C. 649, 658-65, 599 S.E.2d 888, 894-98 (2004); State v. Hensley, \u2014N.C. App. \u2014, \u2014, 687 S.E.2d 309, 311 (2010); Dew v. State ex rel. North Carolina DMV, 127 N.C. App. 309, 310-11, 488 S.E.2d 836, 837 (1997), and Respondent had no right to appeal those findings. See State v. Washington, 116 N.C. App. 318, 320-21, 447 S.E.2d 799, 801 (1994).\nRespondent argues that Hearing Officer Snow never \u201cfound that Officer Ratliff\u2019s affidavit was improperly executed.\u201d However, it is the province of our Court to determine the correctness of a hearing officer\u2019s conclusions of law; also, Respondent\u2019s contention is factually mistaken. Hearing Officer Snow included the following in his- order:\nMotion Number Two: [Petitioner] contended the revocation was not valid because there were no facts supporting reasonable grounds that the petitioner had committed an implied-consent offense on the affidavit (Division Exhibit One). Therefore, he would offer a motion to rescind the revocation based on lack of reasonable grounds.\nRuling: Motion Denied.\nIf the affidavits were the only evidence in this case the motion may be valid. However, the officer\u2019s testimony is the state[\u2019]s best evidence in this case. The lack of facts supporting reasonable grounds on the affidavit will carry little weight in determining if reasonable grounds were present. (Emphasis added).\nRespondent further argues that because N.C.G.S. \u00a7 20-16.2 states that the required sworn affidavit must include \u201c[t]he results of any tests given or that the person willfully refused to submit to a chemical analysis[,]\u201d (emphasis added), under N.C.G.S. \u00a7 20-16.2(cl)(5), no willful refusal was required to revoke Petitioner\u2019s driving privileges.\nRespondent interprets the language of N.C.G.S. \u00a7 20-16.2(cl)(5) to mean that as long as the affidavit indicates that at least one of the two conditions has been met, the affidavit is sufficient. Respondent argues that, because the Division received a form DHHS 3908 that included \u201cthe results of any tests given,\u201d the requirements of N.C.G.S. \u00a7 20-16.2(cl)(5) were satisfied. First, in the present case no test was given. Petitioner refused to submit to chemical analysis. Second, were we to adopt Respondent\u2019s interpretation, the second part of N.C.G.S. \u00a7 20-16.2(cl)(5) would be rendered meaningless. Wilkins v. N.C. State Univ., 178 N.C. App. 377, 379, 631 S.E.2d 221, 223 (2006) (\u201cIt is well established that \u2018a statute must be construed, if possible, to give meaning and effect to all of its provisions.\u2019 \u201d) (internal citation omitted). Third, our appellate courts have consistently conducted a \u201cwillfulness\u201d analysis when considering the issue of refusal to submit to chemical analysis. See Etheridge, 301 N.C. at 81, 269 S.E.2d at 136; Steinkrause, \u2014 N.C. App. at \u2014, 689 S.E.2d at 381 (\u201cN.C. Gen. Stat. \u00a7 20-16.2 ... authorizes a civil revocation of the driver\u2019s license when a driver has willfully refused to submit to a chemical analysis.\u201d) (emphasis added); Summers, 132 N.C. App. at 643-44, 513 S.E.2d at 580 (\u201cA defendant\u2019s refusal to submit to the intoxilyzer test after being charged with DWI can give rise to civil proceedings to revoke defendant\u2019s driver license, but only if the refusal is a \u2018willful refusal.\u2019 See N.C. Gen. Stat. \u00a7 20-16.2.\u201d) (emphasis added); In re Suspension of License of Rogers, 94 N.C. App. 505, 510, 380 S.E.2d 599, 602 (1989) (matter remanded for findings regarding whether the petitioner\u2019s refusal to submit to chemical analysis was willful).\nIn the 20 November 2007 hearing conducted pursuant to N.C.G.S. \u00a7 20-16.2(d), Hearing Officer Snow concluded in his \u201cFindings of Fact, Conclusions of Law and Decision\u201d that any failure by Officer Ratliff to check the box for section fourteen on the affidavit could not have prejudiced Petitioner, and did not deprive the Division of the authority to revoke Petitioner\u2019s license. Hearing Officer Snow concluded, as a matter of law, that Petitioner willfully refused to submit to a chemical analysis and that'\u201cthe Order of Revocation of the driving privilege of [Petitioner] is sustained.\u201d\nHowever, the uncontroverted testimony of Officer Ratliff before Hearing Officer Snow was that Officer Ratliff never marked any box associated with section fourteen on the affidavit before he made his affirmation to the magistrate and executed the affidavit. Officer Ratliff was asked at the hearing: \u201cyou never went back and told the magistrate or gave anybody authority to change that affidavit [to check the box associated with section fourteen].\u201d Officer Ratliff responded, \u201cno, sir.\u201d Officer Ratliff also agreed that \u201cthe copy [of the affidavit that was] with the Division ... [was] not the same [one] that [Officer Ratliff] swore to in front of the magistrate.\u201d\nWhen construing N.C.G.S. \u00a7 20-16.2, our Court has stated:\n\u201cThe intent of the legislature controls the interpretation of a statute. When the language, of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u201d\nNicholson v. Killens, 116 N.C. App. 473, 477, 448 S.E.2d 542, 544 (1994), quoting In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388-89 (1978) (citations omitted). \u201c \u2018Statutes imposing a penalty are to be strictly construed.\u2019 \u2019\u2019 Killens, 116 N.C. App. at 477, 448 S.E.2d at 544, quoting Carter v. Wilson Construction Co., 83 N.C. App. 61, 68, 348 S.E.2d 830, 834 (1986).\nN.C.G.S. \u00a7 20-16.2 states in relevant part:\n(cl) Procedure for Reporting Results and Refusal to Division.\u2014 Whenever a person refuses to submit to a chemical analysis, a person has an alcohol concentration of 0.15 or more, or a person\u2019s drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized, to administer oaths and execute an affidavit^s) stating []:\n(5) The results of any tests given or that the person willfully refused to submit to a chemical analysis.\n.... The officer shall immediately mail the affidavit(s) to the Division. If the officer is also the chemical analyst who has notified the person of the rights under subsection (a), the officer may perform alone the duties of this subsection.\nN.C.G.S. \u00a7 20-16.2(cl) (emphasis added). \u201cUpon receipt of a properly executed affidavit required by subsection (cl), the Division shall expeditiously notify the person charged that the person\u2019s license to drive is revoked for 12 months[.]\u201d N.C.G.S. \u00a7 20-16.2(d) (emphasis added).\nConstruing N.C.G.S. \u00a7 20-16.2 strictly, as we are compelled to do, Killens, 116 N.C. App. at 477, 448 S.E.2d at 544, we hold that the plain language of the statute requires that the Division receive a \u201cproperly executed affidavit\u201d that includes all the requirements set forth in N.C.G.S. \u00a7 20-16.2(cl) before the Division is vested with the authority to revoke a person\u2019s driving privileges pursuant to N.C.G.S. \u00a7 20-16.2.\n\u201cThe presumption is that no part of a statute is mere surplusage, but each provision adds something which would not otherwise be included in its terms.\u201d Domestic Electric Service, Inc. v. Rocky Mt., 285 N.C. 135, 143, 203 S.E.2d 838, 843 (1974) (citation omitted). If we were to hold that the Division had the authority to revoke Petitioner\u2019s driving privileges without first obtaining an affidavit including a sworn statement of willful refusal as stated in N.C.G.S. \u00a7 20-16.2(cl), we would be rendering that language meaningless, as mere surplusage.\nThe dissenting opinion would affirm the revocation of Petitioner\u2019s driving privileges and relies most directly on Ferguson v. Killens, 129 N.C. App. 131, 497 S.E.2d 722 (1998), where the Division failed to notify the petitioner that his license had been revoked until ninety-nine days after the petitioner had willfully refused submission to chemical analysis. Id. at 141, 497 S.E.2d at 727. In Ferguson, the petitioner argued that his license should be reinstated because the Division had violated the mandate of N.C.G.S. \u00a7 20-16.2(d), requiring the Division, \u201c[u]pon receipt of a properly executed affidavit required by subsection (cl), [to] expeditiously notify the person charged that the person\u2019s license to drive is revoked[.]\u201d The Ferguson Court held that, even assuming the Division had violated the notification requirement of N.C.G.S. \u00a7 20-16.2(d), the petitioner\u2019s argument that his license should be reinstated failed for the following reasons: (1) the petitioner had not shown how any failure on the part of the Division to timely notify him of the revocation had prejudiced the petitioner, and (2) \u201cG.S. 20-16.2(d) states that a license revocation for willful refusal must be sustained if the five conditions specified are met[,]\u201d and \u201c[n]one of these conditions has anything to do with \u2018expeditious notice.\u2019 \u201d Ferguson, 129 N.C. App. at 141, 497 S.E.2d at 728.\nThe facts in Ferguson are distinguishable from the present case, and Ferguson does not control our analysis or our holding in this matter. First, the petitioner in Ferguson made no showing concerning how untimely notification had prejudiced him in any manner, because all the requirements for revoking the petitioner\u2019s license pursuant to N.C.G.S. \u00a7 20-16.2 had been met. There was no argument in Ferguson that the affidavit providing the Division with the authority to revoke the petitioner\u2019s license was defective in any way. Therefore, the petitioner\u2019s license had been properly revoked. Any untimely notification of the revocation did not deprive the petitioner of the opportunity to challenge the bases for the revocation, nor did the petitioner demonstrate how an untimely notification could have prejudiced him in any other manner.\nIn the case before us, we have held that a necessary requirement for the revocation of Petitioner\u2019s driving privileges had not been met: the Division never received an affidavit indicating Petitioner had willfully refused chemical analysis. This corresponds to one of the five requirements for revocation for willful refusal referenced in Ferguson, specifically N.C.G.S. \u00a7 20-16.2(d)(5): \u201cThe person willfully refused to submit to a chemical analysis.\u201d Unlike the facts in Ferguson, the prejudice to Petitioner in this case is clear: Petitioner had a right to drive in the State of North Carolina. Because the Division erred by revoking Petitioner\u2019s North Carolina driving privileges without first receiving a properly executed affidavit stating Petitioner had willfully refused chemical analysis, Petitioner\u2019s right to drive in North Carolina was to be suspended by the Division.\nMore importantly, unlike the situation in Ferguson, the five requirements necessary for a hearing officer to uphold a revocation or suspension, N.C.G.S. \u00a7\u00a7 20-16.2(d) (1) to (5), are not relevant to our analysis. We have held that the Division had no authority to suspend Petitioner\u2019s driving privileges in the first instance because the Division never received \u201ca properly executed affidavit required by subsection (cl)[.]\u201d N.C.G.S. \u00a7 20-16.2(d). Because Petitioner\u2019s driving privileges were suspended without authority, those sections of N.C.G.S. \u00a7 20-16.2(d) applying to Petitioner\u2019s right to a hearing before the Division, and those sections of N.C.G.S. \u00a7 20-16.2(d) applying to the requirements for sustaining the suspension, including N.C.G.S. \u00a7\u00a7 20-16.2(d) (1) to (5), are not relevant in this case. As Petitioner\u2019s driving privileges should not have been suspended in the first instance, no hearing before the Division should have ever occurred.\nThe dissenting opinion concludes that N.C. Gen. Stat. \u00a7 20-16.2(d) provides the right to a hearing and the hearing satisfies the constitutional due process requirement. The dissenting opinion agrees with Hearing Officer Snow that, even if it was an employee of the Division who \u201c \u2018checked the block for item fourteen as counsel [for Petitioner] contended, this is not a fatal error as [P]etitioner has a remedy through the hearing process.\u2019 \u201d As we have stated above, no cause for a hearing was ever properly triggered, as the Division never had the authority to suspend Petitioner\u2019s driving privileges.\nWe are unprepared to conclude that an error prejudicing Petitioner may be cured through a hearing that should not have occurred, because it was triggered by a suspension of Petitioner\u2019s driving privileges that should not have happened. The Division did not have authority to suspend Petitioner\u2019s driving privileges based upon the affidavit it received from Officer Ratliff. Were we to hold otherwise, we would render meaningless the requirement that the Division first receive an affidavit attesting to a petitioner\u2019s willful refusal before suspending that petitioner\u2019s driving privileges based upon a willful refusal. The Division would be permitted to suspend any person\u2019s driving privileges for willful refusal without first obtaining any evidence or attestation that a willful refusal had occurred. That person would then have to request a hearing in order to compel the State to present any evidence justifying the suspension. If the petitioner did not request a hearing, his driving privileges could be suspended without the Division ever having received any evidence of willful refusal. We do not believe this is contemplated in the clear language of N.C.G.S. \u00a7 20-16.2, nor do we believe this could have been the intent of the General Assembly in drafting that statute. We do not believe the General Assembly intended to grant the Division the authority to suspend driving privileges, or revoke a driver\u2019s license, without any indication that one of the bases for suspension or revocation required by N.C.G.S. \u00a7 20-16.2(cl) had occurred.\nFinally, Petitioner argues in his brief that suspension of his driving privileges violated his due process rights under the United States Constitution. Because we have revoked the suspension of Petitioner\u2019s driving privileges on other grounds, we do not address Petitioner\u2019s due process argument. We do, however, restate that we find a properly executed affidavit stating willful refusal to be a prerequisite to any authority of the Division to suspend driving privileges based upon willful refusal. We therefore cannot agree with the dissenting opinion\u2019s apparent conclusion that the affidavit requirement is a mere \u201cadministrative procedure\u201d in no manner \u201caffecting the process due a petitioner.\u201d We find the facts of the cases cited in the dissenting opinion in support of this position distinguishable from the facts of our case. We do not find that the holdings in the cases cited by the dissenting opinion compel a different result than we reach in this opinion.\nWe hold that the Division did not receive \u201ca properly executed affidavit required by subsection (cl)\u201d and, therefore, the Division had no authority to revoke Petitioner\u2019s driving privileges pursuant to N.C.G.S. \u00a7 20-16.2. Absent the authority to revoke Petitioner\u2019s license, there was also no authority pursuant to N.C.G.S. \u00a7 20-16.2 for the Division to conduct a review hearing, or for appellate review in the superior court.\nTherefore, the rulings of Hearing Officer Snow and the superior court affirming the revocation of Petitioner\u2019s license are void. We vacate the order of the superior court affirming the decision of Hearing Officer Snow, and remand to the Division for reinstatement of Petitioner\u2019s North Carolina driving privileges. In light of this holding, we do not address Petitioner\u2019s additional arguments.\nVacated and remanded.\nJudge BRYANT concurs.\nJudge WYNN dissents with a separate opinion.\n. Which served to postpone the suspension of Plaintiff\u2019s driving privileges until the outcome of the hearing had been determined. N.C.G.S. \u00a7 20-16.2(d). By order of the trial court, the postponement of the suspension was continued pending the outcome of Plaintiff\u2019s appeal.\n. The events related to this appeal occurred before the effective date of the current version of N.C. Gen. Stat. \u00a7 20-16.2. Though we cite the version of the statute in effect on 23 August 2007 for the purposes of this appeal, there are no material differences between the current version of this statute and the version in effect on 23 August 2007.\n. N.C. Gen. Stat. \u00a7 20-22 (2006) mandates that the provisions of N.C.G.S. \u00a7 20-1 et seq. apply equally to non-residents and residents alike.\n. Respondent states elsewhere in his brief that: \u201cAlthough the test ticket states that the test was \u2018REFUSED,\u2019 because it does not include the word \u2018WILLFULLY,\u2019 the test ticket \u2014 and by extension, the affidavit \u2014 arguably does not state \u2018that the person willfully refused to submit to a chemical analysis.\u2019 N.C.G.S. \u00a7 20-16.2(cl)(5).\u201d Respondent appears to state that the affidavit, along with the form DHHS 3908, does not constitute an unequivocal affirmation that Petitioner\u2019s refusal was \u201cwillful.\u201d\n. Respondent contends that the testimony of Officer Ratliff was ambiguous concerning whether he checked the box indicating Petitioner had willfully refused to submit to chemical analysis. Respondent\u2019s brief does not include citation to any testimony indicating ambiguity on this point. Our Court\u2019s thorough review of the record, including Officer Ratliff\u2019s testimony, shows no ambiguity. Officer Ratliff, by his clear and unambiguous statements, did not check the box on the affidavit indicating Petitioner willfully refused to submit to chemical analysis.\n. Though, due to the petitioner\u2019s request for a hearing, the revocation was suspended until the outcome of the hearing had been determined. N.C.G.S.\n. For example, an appellate court may reverse or modify the final decision of an administrative body if the appellate court determines the final agency decision has prejudiced a petitioner because the final decision was \u201c[m]ade upon unlawful procedure!.]\" N.C. Gen. Stat. \u00a7 150B-51 (b)(3) (2009); In re Appeal of Ramseur, 120 N.C. App. 521, 523-24, 463 S.E.2d 254, 256 (1995).\n. For example, in In re Rogers, 94 N.C. App. 505, 380 S.E.2d 599 (1989), cited in the dissent, our Court stated that \u201cnotification of a right is of little value if there is no remedy for the denial of the right. In the present case, however, any violation of petitioner\u2019s rights was unrelated to her alleged decision to refuse the [breathalyser] test.\u201d Id. at 508, 380 S.E.2d at 600. In the case before us, the violation of Petitioner\u2019s rights was directly related to his alleged willful refusal to submit to chemical analysis.",
        "type": "majority",
        "author": "McGEE, Judge."
      },
      {
        "text": "WYNN, Judge,\ndissenting.\nIn light of my reconsideration of this matter upon rehearing, I am inclined to dissent and afford our Supreme Court the opportunity to address the issue of first-impression presented by this case: What remedy is Petitioner entitled to where a law enforcement officer fails to follow the statutory mandate to \u201cexecute an affidavit(s) stating that: . . . the person willfully refused to submit to a chemical analysis\u201d? N.C. Gen. Stat. \u00a7 20-16.2 (cl) (2009). The majority concludes that because the Division of Motor Vehicles (\u201cDMV\u201d) did not receive a properly executed affidavit as mandated by the statute, the DMV was without authority to revoke Petitioner\u2019s driving privileges.\nThe issue here is what remedy Petitioner is entitled to for the error alleged. While the statutory provision here construed employs the word \u201cshall,\u201d it does not prescribe the remedy for a violation, nor does it predicate the authority of the DMV on compliance with its terms. See N.C. Gen. Stat. \u00a7 20-16.2(d)(2009). In determining the consequences of such an error, it is worth considering that our cases distinguish between violations of administrative procedure and those affecting the process due to a petitioner.\nThis distinction was recognized in Rice v. Peters, Comr. of Motor Vehicles, 48 N.C. App. 697, 269 S.E.2d 740 (1980). The petitioner in Rice directed this Court to the statutory provision requiring the arresting officer to request that the person arrested submit to a breathalyzer test. Id. at 700, 269 S.E.2d at 742. Although the trial court\u2019s order indicated that petitioner refused to take the breathalyzer test, the petitioner argued that the trial court erred because its order lacked a \u201cfinding that he was requested to submit to the breathalyzer test after being informed of his statutory rights.\u201d Id. This Court affirmed the revocation, stating \u201c[w]e do not believe the North Carolina General Assembly intended by its enactment of G.S. 20-16.2(c) to prescribe such a rigid sequence of events as contended by [petitioner].\u201d Id.\nThe administrative procedures provided for in G.S. 20-16.2 are designed to promote breathalyzer tests as a valuable tool for law enforcement officers in their enforcing the laws against driving under the influence while also protecting the rights of the State\u2019s citizens. We hold the purpose of the statute to be fulfilled when the petitioner is given the option to submit or refuse to submit to a breathalyzer test and his decision is made after having been advised of his rights in a manner provided by the statute.\nId. at 700-01, 269 S.E.2d at 742 (citations and emphasis omitted).\nWe faced a similar problem in In re Suspension of License of Rogers, 94 N.C. App. 505, 380 S.E.2d 599 (1989). \u201cUnder G.S. 20-16.2(a)(6), petitioner had the right to select a witness to view the testing procedures . . . .\u201d Id. at 507, 380 S.E.2d at 600. The record in Rogers showed that, although the actual testing occurred in the presence of the witness, the breathalyzer operator performed a simulator test prior to the witness\u2019s arrival. Id. The superior court ruled that \u201cthis statutory provision required the breathalyzer operator to perform the simulator test in the witness\u2019s presence and the failure to do so precluded respondent from revoking petitioner\u2019s license for her refusal to take the test.\u201d Id.\nThis Court disagreed, citing Rice. \u201cIn reviewing this revocation, the trial court could properly consider only those issues specified in G.S. 20-16.2(d) . . . .\u201d Id. at 508, 380 S.E.2d at 600. We acknowledged that \u201cnotification of a right is of little value if there is no remedy for the denial of the right. In the present case, however, any violation of petitioner\u2019s rights was unrelated to her alleged decision to refuse the test.\u201d Id.\nConsiderations of fairness and accuracy are not present... when a motorist refuses to take a test for wholly unrelated reasons. Under G.S. 20-16.2(a), a motorist impliedly consents to chemical analysis if he is charged with impaired driving. Revocation under the statute is a penalty for failing to comply with a condition for the .privilege of possessing a license; it is not punishment for the crime for which the motorist was arrested.\nId. at 509, 380 S.E.2d at 601.\nWe again addressed the issue in Ferguson v. Killens, 129 N.C. App. 131, 497 S.E.2d 722, appeal dismissed, disc. review denied, 348 N.C. 496, 510 S.E.2d 382 (1998). The petitioner in Ferguson argued that, because the letter notifying him of the revocation was dated a full ninety days after the alleged refusal occurred, the \u201cDMV did not \u2018expeditiously notify\u2019 him of his one-year license revocation as required by G.S. 20-16.2(d), [and] the revocation must be rescinded.\u201d Id. at 141, 497 S.E.2d at 727. This Court found that the alleged error was not prejudicial.\nEven if we assume that petitioner was not \u201cexpeditiously notified]\u201d as required by the statute, petitioner has made no showing that his failure to be expeditiously notified has prejudiced him. In addition, G.S. 20-16.2(d) states that a license revocation for willful refusal must be sustained if the five conditions specified are met. None of these conditions has anything to do with \u201cexpeditious notice.\u201d Petitioner\u2019s argument fails.\nId. at 141, 497 S.E.2d at 727-28.\nThe result in Ferguson is directly at odds with the majority\u2019s conclusion in the present case. We held in Ferguson that the DMV\u2019s failure strictly to comply with the first sentence of subsection (d) \u2014 the same provision as is here construed \u2014 did not undermine the revocation of driving privileges when the petitioner could not demonstrate any prejudice. See id. Petitioner in the present case has not demonstrated that he was prejudiced in any way by the improperly executed affidavit that was received by the DMV.\nMoreover, as we noted in Ferguson, the statute limits consideration at the hearing to specifically enumerated factors. Id. at 141, 497 S.E.2d at 728. \u201cNone of these conditions has anything to do with \u2018expeditious notice.\u2019\u201d Id. Similarly, in this case, none of these conditions has anything to do with the sufficiency of the affidavit. See N.C. Gen. Stat. \u00a7 20-16.2(d). It follows that Petitioner can not assert the insufficiency of the affidavit as a ground upon which to invalidate the proposed revocation of his driving privileges.\nI conclude by pointing out that N.C. Gen. Stat. \u00a7 20-16.2(d) provides the right to a hearing. \u201cSuch a hearing satisfies the constitutional due process requirement.\u201d Montgomery v. North Carolina Dept. of Motor Vehicles, 455 F. Supp. 338 (W.D.N.C. 1978), aff\u2019d, 599 F.2d 1048 (4th Cir. 1979). On the basis of the precedents considered above, I agree with the DMV hearing officer who first heard Petitioner\u2019s case that \u201c[e]ven if an employee of the Division checked the block for item fourteen as counsel contended, this is not a fatal error as the petitioner has a remedy through the hearing process.\u201d Accordingly, because I would affirm the revocation of Petitioner\u2019s driving privileges, I respectfully dissent and present to the Respondent the opportunity to appeal this issue as a matter of right to our Supreme Court.\n. I read Ferguson differently from the majority primarily because the relevant statute prohibits the revocation of a driver\u2019s license pending the hearing, if the driver requests such a hearing. See N.C. Gen. Stat. \u00a7 20-16.2(d) (\u201cIf the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held, the person withdraws the request, or the person fails to appear at a scheduled hearing.\u201d). Thus, because the petitioner in Ferguson requested a hearing, his license could not have been revoked under the statute until the conclusion of that hearing. See Ferguson, 129 N.C. App. at 134, 497 S.E.2d at 724 (\u201cPetitioner requested an administrative review by a DMV hearing officer.\u201d). As in Ferguson, Petitioner in this case requested a hearing and thus retained his license pending a hearing. I therefore conclude that, like the petitioner in Ferguson, Petitioner suffered no prejudice except that attendant upon the hearing, at which he was given the opportunity to contest the revocation of his driving privileges on the basis of the willfulness of his refusal.",
        "type": "dissent",
        "author": "WYNN, Judge,"
      }
    ],
    "attorneys": [
      "Richard J. Lee, J.D., LL.M., Petitioner-Appellant, pro se. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for Respondent-Appellee."
    ],
    "corrections": "",
    "head_matter": "RICHARD JAMES LEE, Petitioner-Appellant v. WILLIAM C. GORE, JR., as Commissioner of the Division of Motor Vehicles, North Carolina Department of Transportation, Respondent-Appellee\nNo. COA09-370-2\n(Filed 17 August 2010)\nMotor Vehicles\u2014 driving while impaired \u2014 willful refusal to submit to chemical analysis \u2014 driving privileges improperly suspended\nThe trial court erred in upholding the Division of Motor Vehicle\u2019s revocation of petitioner\u2019s North Carolina driving privileges. A person\u2019s refusal to submit to chemical analysis must be willful in order to suspend that person\u2019s driving privileges and a form DHHS 3908 is not a substitute for a \u201cproperly executed affidavit\u201d indicating that a person\u2019s refusal to submit to chemical analysis was willful, as required by N.C.G.S. \u00a7 20-16.2(cl). Because the Division did not receive a properly executed affidavit required by subsection (cl), the Division had no authority to revoke petitioner\u2019s driving privileges pursuant to N.C.G.S. \u00a7 20-16.2.\nAppeal by Petitioner from order entered 22 October 2008 by Judge Henry E. Frye, Jr. in Superior Court, Wilkes County. This matter was originally heard in the Court of Appeals 27 October 2009. An opinion was filed by this Court on 19 January 2010, vacating the order of the Wilkes County Superior Court and remanding to the North Carolina Division of Motor Vehicles. Respondent filed a Petition for Rehearing on 23 February 2010. An order granting the Petition for Rehearing was filed on the 19th day of March 2010.\nRichard J. Lee, J.D., LL.M., Petitioner-Appellant, pro se. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for Respondent-Appellee."
  },
  "file_name": "0374-01",
  "first_page_order": 398,
  "last_page_order": 415
}