#### JAMES W. SMITH v. EDWARD L. POWELL, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA

No. 765SC723

(Filed 16 March 1977)

Automobiles § 122— public highway — driving under bridge within right-of-way lines

Petitioner was operating his vehicle on a public highway when he was arrested for drunken driving where he was operating the vehicle under a bridge between the right-of-way lines of a U. S. highway, G.S. 20-4.01(13); therefore, the Division of Motor Vehicles properly revoked petitioner’s driver’s license because of his refusal to submit to a breathalyzer test after his arrest.

Judge Clark dissenting.

Appeal by respondent from James, Judge. Judgment entered 8 April 1976 in Superior Court, New Hanover County. Heard in Court of Appeals 10 February 1977.

In this proceeding, petitioner, James W. Smith, filed a petition in the Superior Court pursuant to the provisions of G.S. 20-16.2 (e) for a trial de novo from the order of the Division of Motor Vehicles suspending his driver’s license for six months pursuant to G.S. 20-16.2 (d) for willful refusal to submit to a breathalyzer test. The following facts are not in controversy:

On 2 October 1975 at approximately 6:25 p.m. New Hanover County Deputy Sheriff C. E. Willis observed the petitioner operating a motor vehicle underneath the bridge by which U. S. Highways 74-76 cross the Intercoastal Waterway in New Hanover County. The area beneath the bridge is used by some members of the general public to launch small boats into the water without the express or implied consent of the State of North Carolina. Deputy Sheriff Willis had reasonable grounds to believe that petitioner was operating a motor vehicle under the influence of intoxicating liquor and arrested him for violating G.S. 20-138. At the time of his arrest petitioner was requested by Deputy Sheriff Willis and by a qualified breathalyzer operator to submit to a breathalyzer test and was informed of his rights under G.S. 20-16.2(a), but petitioner willfully refused to submit to the test. Subsequently the Division of Motor Vehicles revoked petitioner’s license for six months pursuant to G.S. 20-16.2 (d). Petitioner asked for a trial de novo in Superior *564Court pursuant to G.S. 20-16.2 (e). At trial the judge found the facts as set out above and based thereon made the following pertinent conclusion of law:

“While the Court agrees that there may technically be some merit in the argument that the area beneath the bridge is within the right-of-way of Highways 74-76, the Court concludes as a practical matter that the Petitioner’s car was not on a highway as that term is used in North Carolina General Statute 20-16.2, and that the arresting officer did not have reasonable grounds to believe that the Petitioner was or had been operating said vehicle on a highway while under the influence of alcohol.”

From an order reversing the respondent’s revocation of petitioner’s driver’s license, respondent appealed.

Cherry and Wall by James J. Wall for petitioner appellee.

Attorney General Edmisten by Deputy Attorney General William W. Melvin and Assistant Attorney General William B. Ray for respondent appellant.

HEDRICK, Judge.

The respondent contends that the uncontroverted facts do not support the conclusion that petitioner was' not operating a motor vehicle on a highway within the meaning of G.S. 20-16.2 at the time of his arrest. G.S. 20-4.01(13) defines a highway for the purpose of Chapter 20 as, “The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic.”

The uncontroverted findings of fact clearly establish that petitioner at the time of his arrest was operating a motor vehicle between the right-of-way lines of a “way or place” a portion of which is open to the public as a matter of right for vehicular traffic, as U. S. Highways 74-76. We hold the trial court erred in concluding that petitioner was not operating a motor vehicle at the time of his arrest on a highway within the meaning of G.S. 20-16.2.

In Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 232, 182 S.E. 2d 553, 558 (1971), Justice (now Chief Justice) Sharp wrote, “If, under the facts found by the judge, the *565statute [G.S. 20-16.2 (d)] requires the suspension or revocation of petitioner’s license ‘the order of the department entered in conformity with the facts found must be affirmed.’ ” (Citations omitted.)

In the present case the findings of fact dictate the conclusion that petitioner was operating his automobile at the time of his arrest on a highway within the meaning of G.S. 20-16.2 (d). Accordingly, the judgment appealed from is reversed, and the proceeding is remanded to the Superior Court for the entry of an order affirming respondent’s order revoking petitioner’s license.

Reversed and remanded.

Judge BRitt concurs.

Judge Clark dissents.

Judge Clark

dissenting.

The area within the right-of-way under the bridge was never intended for vehicular traffic and has never been maintained by the State for that purpose. In my opinion no part of the right-of-way under the bridge was “open to the public as a matter of right for the purposes of vehicular traffic,” as provided by G.S. 20-4.01. The long arm of the law should not be so elasticized as to reach under a bridge in an area which was not intended for vehicular traffic. I vote to affirm the judgment of the trial court.