{ "id": 2643382, "name": "WAYLAND J. SERMONS v. ELBERT L. PETERS, JR., COMMISSIONER OF MOTOR VEHICLES", "name_abbreviation": "Sermons v. Peters", "decision_date": "1981-03-03", "docket_number": "No. 802SC646", "first_page": "147", "last_page": "150", "citations": [ { "type": "official", "cite": "51 N.C. App. 147" } ], "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": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "301 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561171 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0076-01" ] }, { "cite": "263 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548909 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0358-01" ] }, { "cite": "279 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569058, 8568932, 8568969, 8569105, 8569144, 8569019 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0397-04", "/nc/279/0397-01", "/nc/279/0397-02", "/nc/279/0397-05", "/nc/279/0397-06", "/nc/279/0397-03" ] }, { "cite": "182 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "558" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "279 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566492 ], "year": 1971, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0226-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(c)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 371, "char_count": 7868, "ocr_confidence": 0.745, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7506281254235285 }, "sha256": "80a2e6a002cae4423237c59ca59b6666fc26a75be10757e7e02ae7fe66496783", "simhash": "1:b96636eb1d75dfd0", "word_count": 1306 }, "last_updated": "2023-07-14T20:24:29.581265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Clark concur." ], "parties": [ "WAYLAND J. SERMONS v. ELBERT L. PETERS, JR., COMMISSIONER OF MOTOR VEHICLES" ], "opinions": [ { "text": "MARTIN (Robert M.), Judge.\nThe sole question raised on this appeal is whether the court below was correct in concluding that the petitioner did not wilfully refuse to submit to a breathalyzer test.\n\u201cRefusal\u201d is defined 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, rehearing denied, 279 N.C. 397 (1971), quoting Black\u2019s Law Dictionary (4th Ed. 1951); Etheridge v. Peters, Comr. of Motor Vehicles, 45 N.C. App. 358, 263 S.E. 2d 308 (1980), affirmed 301 N.C. 76 (1980). \u201cWillful\u201d is defined as \u201cvoluntary; intentional.\u201d Black\u2019s Law Dictionary 1434 (5th ed. 1979). The term \u201cwilful refusal\u201d embraces \u201cthe concept of a conscious choice purposely made.\u201d Joyner v. Garrett, supra at 233, 182 S.E. 2d at 558.\nThe suspension of petitioner\u2019s driver\u2019s license is no part of the punishment for operating under the influence. The proceeding is civil and not criminal in nature. \u201cWilful refusal\u201d is a necessary requirement under N.C. Gen. Stat. \u00a7 20-16.2(c) and the trial court has the duty of judicially determining this question. It was not incumbent upon the officers to explain the statutory rights relative to the granting of a limited driving privilege upon conviction of the offense charged. Whether or not the petitioner would have taken the breathalyzer test had he been aware of the law is irrelevant.\nPetitioner\u2019s testimony indicated he was told that he would automatically lose his license for six months if he refused to take the breathalyzer test. The evidence shows that he was then afforded all his rights as provided by N.C. Gen. Stat. \u00a7 20-16.2(a), and he \u201cconsciously and purposely\u201d declined the request to take the test. Joyner v. Garrett, supra. Moreover, the trial court\u2019s findings of fact dictate the conclusion that petitioner wilfully refused to take the breathalyzer test within the meaning of the statute.\nThus, the conclusion of the trial judge that the petitioner did not wilfully refuse to take the breathalyzer test is not supported by the evidence or by his findings of fact. It is an erroneous conclusion which must be reversed. The cause is remanded to the Superior Court for the entry of an order concluding that the petitioner is subject to the revocation of his operator\u2019s license pursuant to N.C. Gen. Stat. \u00a7 20-16.2 and reinstating the revocation order of the Division of Motor Vehicles.\nReversed and remanded.\nJudges Hedrick and Clark concur.", "type": "majority", "author": "MARTIN (Robert M.), Judge." } ], "attorneys": [ "James R. Vosburgh, for the petitioner-appellee.", "Attorney General Edmisten by Associate Attorney General Jane P. Gray, for the respondent-appellant." ], "corrections": "", "head_matter": "WAYLAND J. SERMONS v. ELBERT L. PETERS, JR., COMMISSIONER OF MOTOR VEHICLES\nNo. 802SC646\n(Filed 3 March 1981)\nAutomobiles \u00a7 126.4- willful refusal to submit to breathalyzer test\nThe trial court erred in concluding that petitioner did not willfully refuse to submit to a breathalyzer test where petitioner was told that he would automatically lose his license for six months if he refused to take the breathalyzer test; petitioner was then afforded all his rights as provided by G.S. 20-16.2(a), and he consciously and purposely declined the request to take the test; and petitioner\u2019s testimony that he refused to take the test because he was planning to plead guilty to the offense of driving under the influence and to seek a limited driving privilege and that, had he known his refusal to take the test would operate to revoke the limited driving privilege for a period of six months, he would have taken the test was irrelevant to the question as to whether petitioner willfully refused to submit to a breathalyzer test.\nAppeal by respondent from Barefoot, Judge. Judgment entered 12 May 1980 in Superior Court, Beaufort County. Heard in the Court of Appeals 3 February 1981.\nOn 26 May 1979 petitioner was arrested for operating a motor vehicle while under the influence of intoxicating liquor. He was taken by State Highway Patrol Trooper T.G. Miller to the Beaufort County Sheriffs Department and was requested by Trooper Miller to submit to a breathalyzer test for the purpose of determining the alcoholic content of his blood.\nSergeant J.D. Leitschuh, a duly licensed breathalyzer operator, was present to administer the test. After the breathalyzer machine was readied, Sergeant Leitschuh asked the petitioner if he was ready to take the test. Petitioner inquired in a joking manner, \u201cDo I really have to?\u201d He was told that he did not have to, but if he refused, he would automatically lose his license for six months. Petitioner replied, \u201cWell, I don\u2019t want to take it then.\u201d Petitioner testified that when he refused to take the test, he was planning to plead guilty to the offense of driving under the influence and to seek a limited driving privilege. Petitioner also testified that if he had known that his refusal to take the test would operate to revoke the limited driving privilege for a period of six months, he would have taken the test. Petitioner also refused to sign the form acknowledging that he had been informed of his rights regarding the breathalyzer test.\nAt the trial on the driving under the influence charge, the court issued petitioner a limited driving privilege which was subject to any present or future revocation thereof by the Department of Motor Vehicles. On 7 August 1979 the Commissioner of Motor Vehicles notified petitioner that his driving privileges were being revoked for six months for wilfully violating N.C. Gen. Stat. \u00a7 20-16.2. After the revocation order was sustained at an administrative hearing, petitioner sought and obtained an order restraining the Division of Motor Vehicles from revoking his license until a judicial determination could be made as to the refusal or non-refusal of petitioner to submit to a breathalyzer test. The matter was heard before Judge Barefoot who made the following findings of fact:\n4. That on the night of the petitioner\u2019s arrest, he was advised that if he did not take the test he would lose his operators license for six months and petitioner informed the arresting officer that he would plead guilty in the District Court and seek to obtain a limited driving privilege due to the fact that he had never had a prior conviction of driving under the influence, nor had he been charged with such offense.\n5. The petitioner was not aware that a refusal to submit to a breathalyzer test would result in his disqualification for a limited driving privilege and was not advised that the breathalyzer test would have any adverse effect upon his ability to obtain a limited privilege.\n6. That had the petitioner been aware that his failure to take the breathalyzer test would result in the loss of his right to obtain a limited driving privilege, he would have submitted to the breathalyzer test.\n7. That the petitioner refused to sign the Form HP332A with reference to his rights regarding the breathalyzer.\nBased on these findings, the court concluded:\n1. That the failure of the petitioner to sign HP332A form with reference to his rights concerning the breathalyzer is some evidence that the petitioner did not fully understand his rights regarding the breathalyzer test and the absolute effect of a refusal to take the test.\n2. That the petitioner advised the arresting officer that he would plead guilty to the driving under the influence charge and request a limited driving privilege and petitioner was not advised that his refusal to take the test would have an adverse effect upon his ability to obtain a limited driving privilege.\n3. That the petitioner\u2019s refusal to submit to the breathalyzer test was not a willful refusal. Therefore, the order of the Department of Motor Vehicles revoking the petitioner\u2019s license for six months is rescinded.\nRespondent appealed.\nJames R. Vosburgh, for the petitioner-appellee.\nAttorney General Edmisten by Associate Attorney General Jane P. Gray, for the respondent-appellant." }, "file_name": "0147-01", "first_page_order": 175, "last_page_order": 178 }