{
  "id": 8548481,
  "name": "STEVEN DUNHAM SMITH Petitioner v. LEO F. WALSH, JR., DIRECTOR, DRIVER LICENSE SECTION, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF TRANSPORTATION, STATE OF NORTH CAROLINA Respondent",
  "name_abbreviation": "Smith v. Walsh",
  "decision_date": "1977-10-19",
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      "cite": "279 N.C. 226",
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  "last_updated": "2023-07-14T20:28:15.830309+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge BROCK and Judge ARNOLD concur."
    ],
    "parties": [
      "STEVEN DUNHAM SMITH Petitioner v. LEO F. WALSH, JR., DIRECTOR, DRIVER LICENSE SECTION, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF TRANSPORTATION, STATE OF NORTH CAROLINA Respondent"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nIn his verified petition filed in the Superior Court, petitioner alleged:\n3. That on or about the 18th day of February, 1976, the Petitioner was convicted of driving while under the influence of intoxicating liquors and speeding 100 in a 45 MPH zone in the District Court of Moore County, Carthage, North Carolina.\nAt the hearing in the Superior Court the petitioner testified that he had been convicted on 18 February 1976 of operating a motor vehicle on a public highway while under the influence of intoxicating liquor and speeding a hundred miles per hour in a 45 mile per hour zone. He testified that the reason he was speeding was that he \u201cwas trying to get away from a police officer.\u201d\nIn the judgment appealed from, the court made the following finding of fact:\n3. That on or about the 18th day of February 1976, the petitioner was convicted of driving while under the influence of intoxicating liquors and speeding in excess of 45 m.p.h. in the District Court of Moore County, Carthage, North Carolina.\nRespondent excepts to this finding, pointing out that petitioner\u2019s own allegation and evidence show that petitioner was convicted of speeding in excess of 75 miles per hour in a 45 mile per hour speed zone, a much graver speeding offense than as stated in the court\u2019s finding of fact. Petitioner concedes this to be true, his brief containing the following:\nObviously from the evidence the proper finding was speeding in excess of 75 miles per hour. Equally obvious is that this was a typographical error on the part of the appellee in preparing judgment. No one at the hearing considered the conviction otherwise than speeding in excess of 75.\nAccordingly, for purposes of this appeal we shall consider the judgment of the Superior Court as though it contained a proper finding that petitioner had been convicted of operating a motor vehicle at a speed in excess of 75 miles per hour in a 45 mile per hour speed zone. The question presented by this appeal is whether, in view of such a finding, the court had the discretionary power to revoke the suspension of petitioner\u2019s driving privilege which had been ordered by the Division of Motor Vehicles. We hold that it did not.\nG.S. 20-16(a) contains the following:\nThe Division shall have authority to suspend the license of any operator or chauffeur with or without preliminary hearing upon a showing by its records or other satisfactory evidence that the licensee:\n* * *\n(10) Has been convicted of operating a motor vehicle at a speed in excess of 75 miles per hour on a public road or highway where the maximum speed is less than 70 miles per hour.\nG.S. 2049(b) provides that \u201c[w]hen a license is suspended under subdivision (10) of G.S. 2046(a), the period of suspension shall he in the discretion of the Division and for such time as it deems best for public safety but shallnot exceed a period of 12 months.\u201d (Emphasis added.) Under these statutes, the discretionary authority to suspend petitioner\u2019s license for a period not exceeding 12 months was vested exclusively in the respondent, the Division of Motor Vehicles. No discretionary power was conferred upon the court. As stated by Sharp, J. (now C.J.), speaking for the Supreme Court in Joyner v. Garrett, Comm\u2019r of Motor Vehicles, 279 N.C. 226, 232, 182 S.E. 2d 553, 558 (1971), \u201c[t]he power to issue, suspend, or revoke a driver\u2019s license is vested exclusively in the Department [now the Division] of Motor Vehicles, subject to review by the Superior Court and, upon appeal, by the appellate division.\u201d Judicial review is provided for by G.S. -20-25, and in a case such as is now before us \u201c[i]t is established that the petitioner has the right to a full de novo review of respondent\u2019s action in the superior court.\u201d In re Grubbs, 25 N.C. App. 232, 233, 212 S.E. 2d 414, 415 (1975). However, \u201c[o]n appeal and hearing de novo in superior court, that court is not vested with discretionary authority. It makes judicial review of the facts, and if it finds that the license of petitioner is in fact and in law subject to suspension or revocation the order of the Department must be affirmed _\u201d In re Donnelly, 260 N.C. 375, 381, 132 S.E. 2d 904, 908 (1963).\nThe undisputed facts of the present case bring it squarely within the provisions of G.S. 20-16(a)(10), and the order of the respondent suspending petitioner\u2019s license for a period of 12 months because of his conviction of driving in excess of 75 miles per hour in a 45 mile per hour speed zone was fully authorized by G.S. 2049(b). The court had no authority to substitute its discretion for that of the respondent. Accordingly, the judgment appealed from must be reversed. In re Grubbs, supra.\nWe note that the record and briefs indicate that the Division of Motor Vehicles also revoked petitioner\u2019s driver\u2019s license for one year because of his conviction for driving while under the influence of intoxicating liquor and that the District Court Judge may have granted petitioner a limited driving permit in connection with that case after entry in the Superior Court of the judgment in the case presently before us. Since no question has been presented on this appeal concerning the revocation of petitioner\u2019s driving privilege which resulted from his conviction for driving under the influence nor concerning any limited driving privilege which may have been granted by the District Court in connection with that case, we express no opinion concerning such matters.\nThe judgment appealed from is\nReversed.\nChief Judge BROCK and Judge ARNOLD concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Seawell, Pollock, Fullenwider, Robbins & May, P.A., by P. Wayne Robbins, for petitioner appellee.",
      "Attorney General Edmisten by Assistant Attorney General William B. Ray and Deputy Attorney General William W. Melvin for respondent appellant."
    ],
    "corrections": "",
    "head_matter": "STEVEN DUNHAM SMITH Petitioner v. LEO F. WALSH, JR., DIRECTOR, DRIVER LICENSE SECTION, DIVISION OF MOTOR VEHICLES, DEPARTMENT OF TRANSPORTATION, STATE OF NORTH CAROLINA Respondent\nNo. 7720SC40\n(Filed 19 October 1977)\nAutomobiles \u00a7 2.1\u2014 speeding in excess oi 75 mph \u2014 suspension of license by DMV \u2014 revocation of suspension by superior court\nThe Division of Motor Vehicles was authorized hy G.S. 20-16(a) and G.S. 20-19(b) to suspend petitioner\u2019s driver\u2019s license for a period of 12 months because of his conviction of driving in excess of 75 mph in a 45 mph speed zone, and the superior court on appeal had no discretionary power to revoke the suspension of petitioner\u2019s license which had been ordered by the Division of Motor Vehicles.\nAppeal by respondent, North Carolina Division of Motor Vehicles, from Graham, Judge. Judgment entered 12 November 1976. Heard in the Court of Appeals 29 September 1977.\nOn 19 March 1976 the North Carolina Division of Motor Vehicles, respondent herein, acting pursuant to G.S. 20-16(a)(10) and G.S. 2049(b), ordered petitioner\u2019s driving privilege suspended for a period of twelve months because of his conviction of operating a motor vehicle at a speed in excess of 75 miles per hour in a 45 mile per hour speed zone. After exhausting administrative remedies without obtaining relief, petitioner commenced this action in the Superior Court seeking a reversal of the respondent\u2019s order. After hearing evidence, the trial court entered judgment making findings of fact, based upon which the court concluded \u201cin its discretion that the suspension of the petitioner\u2019s license for speeding should be revoked and his license reinstated on the speeding offense.\u201d From judgment in accord with this conclusion ordering respondent \u201cto reinstate petitioner\u2019s driver\u2019s license on said offense,\u201d respondent appealed.\nSeawell, Pollock, Fullenwider, Robbins & May, P.A., by P. Wayne Robbins, for petitioner appellee.\nAttorney General Edmisten by Assistant Attorney General William B. Ray and Deputy Attorney General William W. Melvin for respondent appellant."
  },
  "file_name": "0287-01",
  "first_page_order": 315,
  "last_page_order": 318
}