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  "name": "FRANCIS EDWARD PRICE, JR. v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES",
  "name_abbreviation": "Price v. North Carolina Department of Motor Vehicles",
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    "judges": [
      "Judges Clark and Mitchell concur."
    ],
    "parties": [
      "FRANCIS EDWARD PRICE, JR. v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nIn his brief petitioner raises the question of whether the refusal to submit to a breathalyzer test until one\u2019s attorney arrives in person at the site of the test when that refusal delays the test more than 30 minutes amounts to a \u201cwillful refusal\u201d under G.S. 20-16.2. Obviously, if one has either a statutory or a constitutional right to await the arrival in person of the attorney, then the facts of this case would not constitute a \u201cwillful refusal\u201d under G.S. 20-16.2, and petitioner\u2019s driving privilege could not be revoked.\nPetitioner advances both statutory arguments and constitutional arguments. Obviously, petitioner\u2019s rights under the Constitution of the United States have not been violated. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966). Our Supreme Court has upheld the admissibility of evidence obtained under G.S. 20-16.2 against constitutional challenges. State v. Sykes, 285 N.C. 202, 203 S.E. 2d 849 (1974).\nPetitioner advances two statutory arguments. First, he argues that he substantially complied with G.S. 20-16.2. Next, he argues that if he has not complied with G.S. 20-16.2, then G.S. 20-16.2 and G.S. 15A-50K5) are in conflict and that G.S. 15A-50K5) controls. We will address these arguments in order.\nThe relevant portions of G.S. 20-16.2 provide that \u201che [the accused] has the right to call an attorney and select a witness to view for him the testing procedures; but that the test shall not be delayed for this purpose for a period in excess of 30 minutes from the time he is notified of his rights.\u201d (Emphasis supplied.) G.S. 2046.2(a)(4). Obviously, there is an ambiguity. The first clause sets out two rights which the petitioner has: (1) the right to call an attorney and (2) the right to select a witness. The second clause says that the test shall not be delayed for more than 30 minutes \u201c/or this purpose\u201d. \u201cThis purpose\u201d is clearly singular. However, the preceding clause sets out two rights. Thus, there is an ambiguity.\nPetitioner argues that \u201cthis purpose\u201d refers to the right \u201cto call an attorney\u201d. Petitioner asserts that one must call an attorney within the 30-minute limit, but that one has a reasonable time of not less than 41 minutes (in this case) within which to select a witness and secure his attendance. We disagree for reasons that will be subsequently set out.\nNext, petitioner argues that G.S. 15A-50K5) gives him the right to confer in person with his attorney prior to taking the breathalyzer test and that G.S. 20-16.2 impermissibly restricts that right. G.S. 15A-501 provides in pertinent part that \u201c[ujpon the arrest of a person, ... a law enforcement officer . . . [m]ust without unnecessary delay advise the person arrested of his right to communicate with counsel . . . and must allow him reasonable time and reasonable opportunity to do so.\u201d Petitioner argues that he has a reasonable time to confer in person with counsel prior to the test and that, in this case, 41 minutes was a reasonable time. Again, we must disagree with petitioner\u2019s construction.\nWe acknowledge the ambiguity in G.S. 2046.2(a)(4) and the potential conflict between G.S. 2046.2(a)(4) and G.S. 15A-50H5). Because of its ambiguity, G.S. 2046.2(a)(4) can be interpreted in three ways: (1) We could assume that the legislature chose the wrong language and that the legislature really meant to say \u201cthese purposes\u201d. Thus, the statute should read \u201che has the right to call an attorney and select a witness to view for him the testing procedures; but that the test shall not be delayed for these purposes for a period in excess of 30 minutes.\u201d This interpretation requires rewriting the statute. (2) We might assume, as the defendant does, that the legislature used the singular (i.e., \u201cthis purpose\u201d) intentionally and that \u201cthis purpose\u201d refers to the right to \u201ccall an attorney\u201d and not the right to \u201cselect a witness\u201d. Thus, an accused would have only 30 minutes to call an attorney. However, an accused would have some other length of time to select a witness. (It is unclear how long.) (3) We might assume that the legislature used the singular (ie., \u201cthis purpose\u201d) intentionally and that \u201cthis purpose\u201d refers to the right to \u201cselect a witness\u201d, the phrase closest to it, and not to the right to \u201ccall an attorney\u201d. Thus, an accused would have a reasonable time (as limited by G.S. 15A-50H5)) to \u201ccall an attorney\u201d, but would have only 30 minutes to \u201cselect a witness\u201d. If we use either of the first two possible interpretations, a conflict would exist between G.S. 15A-50K5) and G.S. 2046.2(a)(4). G.S. 15A-50K5) gives the defendant a \u201creasonable time\u201d \u201cto communicate with counsel\u201d. G.S. 20-16.2(a)(4), under either of the first two interpretations gives the accused only 30 minutes to communicate regardless of the circumstances. However, if we adopt the third interpretation of G.S. 20-16.2(a)(4) (ie., that \u201cthis purpose\u201d refers only to the right to \u201cselect a witness\u201d), there is no conflict between G.S. 20-16.2(a)(4) and'G.S. 15A-50K5).\nWe believe that these problems can be easily resolved through the application of two rules of statutory construction. (1) When a statute imposes a penalty, it must be strictly construed. Jones v. Georgia-Pacific Corp., 15 N.C. App. 515, 190 S.E. 2d 422 (1972). (2) \u201c[Statutes, and all parts thereof, in pari materia should be construed together\u201d, and harmonized if possible, and if there be irreconcilable ambiguity, it should be so resolved as to effectuate the intent of the legislature. Com\u2019r. of Insurance v. Automobile Rate Office, 287 N.C. 192, 202, 214 S.E. 2d 98, 104 (1975). G.S. 20-16.2 clearly imposes a penalty. Because it does so, we must strictly construe the statute. Thus, we interpret the 30-minute time limitation to refer only to the right to \u201cselect a witness\u201d, leaving G.S. 15A-50H5) to control the time limitation on the right to \u201ccall an attorney\u201d (ie., a reasonable time). The interpretation compelled by the rules of statutory construction, and the interpretation we now adopt, is that G.S. 15A-50H5) and G.S. 2046.2(a)(4) give an accused a reasonable time to call an attorney and communicate with him but that G.S. 2046.2(a)(4) gives an accused only 30 minutes to select a witness and secure his attendanee at the breathalyzer test. See State v. Lloyd, 33 N.C. App. 370, 235 S.E. 2d 281 (1977).\nWe believe that this interpretation of the statutes is supported by common sense and sound policy. Whether the procedure is deemed civil or criminal, most, if not all, persons in the petitioner\u2019s situation will desire to speak with their attorney. Indeed, G.S. 20-16.2(a)(4) acknowledges this desire and confers the right to do so. Generally, both the need and the right will be satisfied by a telephone call. G.S. 15A-50K5) speaks in terms of a \u201cright to communicate\u201d. Usually, in deciding whether to submit to a breathalyzer test, that right to communicate will be fully accorded to the accused by allowing him to call an attorney oh the telephone. Because telephonic communication will generally require only a few minutes, there is no great need for a time limitation. On the other hand, there is a genuine need for a time limit in selecting a witness because a lengthy delay will render the test ineffective. Under all ordinary circumstances, the accused can telephone his attorney and fully communicate with him in a matter of minutes. However, it might frequently take a longer time for the witness, whether it be the lawyer, a doctor, or a friend, to travel to the jail to observe the test. Especially would this be true when the defendant is arrested late at night or in a strange town. Furthermore, to obtain legal advice, the accused needs to talk with an attorney, but anyone (a friend, a companion, or even another person in custody) can function quite well as a witness. If an accused, in addition to communicating with his lawyer, also desires that his lawyer function as a witness at the administration of the breathalyzer test, then the accused must bear the risk that the attorney/witness will not arrive within the 30-minute time limit. In this case, the petitioner took that chance and lost.\nThe position we take in this case also aligns us with the better reasoned decisions in our sister states. In light of the Schmerber decision, courts generally agree, as do we, that there is no right to the presence of counsel at the administration of breathalyzer tests or other similar tests. See e.g. McDonnell v. Department of Motor Vehicles, 119 Cal. Reptr. 804, 45 C.A. 3d 653 (1975); Cogdill v. Department of Public Safety, 135 Ga. App. 339, 217 S.E. 2d 502 (1975); Newman v. Hacker, 530 S.W. 2d 376 (Ky. 1975). In spite of this general rule based upon constitutional rights, a growing number of states are according the accused a statutory right to a reasonable time in which to call an attorney prior to submitting to the tests. Generally, these decisions rely on statutes or court rules analogous to our G.S. 15A-50K5). This right to counsel has been imposed upon the implied consent statute even where the implied consent statute, unlike the North Carolina statute, has no express right to counsel. See Prideaux v. Department of Public Safety, 247 N.W. 2d 385 (Minn. 1976); Raine v. Curry, 45 Ohio App. 2d 155, 341 N.E. 2d 606 (1975); Hunter v. Dorius, 23 Utah 2d 122, 458 P. 2d 877 (1969). We note, however, that these decisions do not grant the right to have counsel physically present to function as a witness at the administration of the test.\nFor sound policy reasons as well as because of our rules governing statutory construction, we hold that although an accused has a reasonable time to communicate with counsel, he cannot delay the breathalyzer test for more than 30 minutes in waiting for his witness to arrive. The record in this case contains nothing which indicates that defendant did not have ample opportunity to communicate with counsel while he was on the telephone with him. Thus, petitioner\u2019s right to \u201ccall an attorney\u201d was satisfied. Petitioner, in this case, had no right to delay the test in excess of 30 minutes while awaiting the arrival of his attorney. His declination to submit to the test was, therefore, a willful refusal under G.S. 20-16.2. Creech v. Alexander, 32 N.C. App. 139, 231 S.E. 2d 36, cert. denied 293 N.C. 589, 239 S.E. 2d 263 (1977).\nFor these reasons, the decision of the trial court in upholding the revocation of petitioner\u2019s driving privilege is\nAffirmed.\nJudges Clark and Mitchell concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Deputy Attorney General Jean A. Benoy, for the respondent appellee.",
      "Ruff Bond, Cobb, Wade and McNair, by James 0. Cobb, for the petitioner appellant."
    ],
    "corrections": "",
    "head_matter": "FRANCIS EDWARD PRICE, JR. v. NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES\nNo. 7726SC295\n(Filed 20 June 1978)\n1. Automobiles \u00a7 126.3\u2014 breathalyzer test \u2014 reasonable time to confer with attorney-thirty minutes to obtain witness\nG.S. 15A-50H5) and G.S. 20-16.2(a)(4) give an accused a reasonable time to call an attorney and communicate with him, but G.S. 20-16.2(a)(4) gives an accused only thirty minutes to select a witness, whether an attorney or otherwise, and secure his attendance at the breathalyzer test.\n2. Automobiles \u00a7 126.3\u2014 breathalyzer test \u2014 refusal to take willful\nEvidence was sufficient to support the trial court\u2019s determination that petitioner willfully refused to submit to a breathalyzer test, G.S. 20-16.2, where petitioner was allowed to call his attorney and talk with him a few minutes after he was asked to submit to a breathalyzer test; after the conversation, petitioner told the officers that his attorney would be there in a few minutes; after three or four minutes petitioner called his attorney again and was told that the attorney would be there in ten minutes; petitioner conveyed this message to the officers; petitioner told the breathalyzer operator that he did not want to take the test until he could speak with his attorney; forty minutes after petitioner arrived at the station he was told that his time was up; ten minutes later, after conferring with his attorney who had arrived at the station, petitioner stated that he wanted to take the test; and the operator refused to give it.\nAPPEAL by petitioner from Walker (Ralph A.), Judge. Judgment entered 24 March 1977 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 2 February 1978.\nOn 28 February 1976, petitioner was stopped while operating a motor vehicle on a public highway. He was arrested for driving while under the influence of intoxicating liquor. The arresting officer transported him to the Mecklenburg County jail, arriving there at approximately 2:30 a.m.\nAt the jail, the officer, in the presence of one qualified to administer the breathalyzer test, requested petitioner to submit to the breathalyzer test. The breathalyzer operator read petitioner G.S. 20-16.2(a)(l), (2), (3) and (4) at 2:39 a.m. At 2:44 a.m. petitioner telephoned his attorney who told him he would get dressed immediately and come to the jail. This telephone conversation lasted for two or three minutes, and at its conclusion, petitioner told the officers that his attorney would be there in just a few minutes. Three or four minutes later the arresting officer told petitioner that his \u201ctime was running\u201d. Petitioner again telephoned his attorney who told him that he was almost dressed and that he would be there in approximately ten minutes and that he should convey this message to the officers. Petitioner did convey the message he was coming. At 3:10 a.m. the breathalyzer operator told petitioner his time was up. Petitioner told the operator that his attorney was on the way and that he did not want to take the test until he could speak with his attorney. The attorney arrived at 3:15 a.m. and conferred briefly with petitioner. At 3:20 a.m. both petitioner and his attorney requested that the operator administer the test. The operator refused. The court found as a fact that \u201cpetitioner was no less intoxicated at 3:20 a.m. when he offered to submit himself to the test than he was at 2:39 a.m. when the G.S. 20-16.2(a)(l), (2), (3) and (4) language was read to him.\u201d\nPetitioner plead guilty to the charge of operating a motor vehicle on a highway while under the influence of intoxicating liquor on 28 February 1976 and was granted a limited driving privilege. The Division of Motor Vehicles revoked that privilege 21 March 1976 for refusal to submit to the breathalyzer test pursuant to G.S. 20-16.2. On 21 April 1976 an administrative hearing officer upheld that revocation. The revocation order was affirmed by the Superior Court of Mecklenburg County 24 March 1977. From that judgment petitioner appealed.\nAttorney General Edmisten, by Deputy Attorney General Jean A. Benoy, for the respondent appellee.\nRuff Bond, Cobb, Wade and McNair, by James 0. Cobb, for the petitioner appellant."
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