{ "id": 8522500, "name": "LARRY JAMES PENUEL v. WILLIAM S. HIATT, Commissioner North Carolina Division of Motor Vehicles", "name_abbreviation": "Penuel v. Hiatt", "decision_date": "1990-03-20", "docket_number": "No. 894SC679", "first_page": "616", "last_page": "621", "citations": [ { "type": "official", "cite": "97 N.C. App. 616" } ], "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 2049", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 20-19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": -1 }, { "cite": "381 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527647 ], "year": 1989, "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0748-01" ] }, { "cite": "169 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1969, "pin_cites": [ { "page": "23" }, { "page": "23" }, { "page": "23" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552164 ], "year": 1969, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0575-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "164 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "5" }, { "page": "5" } ], "opinion_index": 0 }, { "cite": "274 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560662 ], "year": 1968, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(2)" }, { "page": "(2)" }, { "page": "580" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 2049", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(e)" }, { "page": "(e)" }, { "page": "(e)(1) and (2)" }, { "page": "(e)(1) and (2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "169 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "23", "parenthetical": "emphasis in original" }, { "page": "23" } ], "opinion_index": 1 }, { "cite": "5 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552164 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/nc-app/5/0575-01" ] } ], "analysis": { "cardinality": 449, "char_count": 11652, "ocr_confidence": 0.77, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.523048834121217 }, "sha256": "43bb909d1624038f82446e44856d7e2a6dfc523cde582b490d54d92181d9b1e1", "simhash": "1:011211e216fb54d0", "word_count": 1926 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ORR concurs.", "Judge JOHNSON concurs in the result." ], "parties": [ "LARRY JAMES PENUEL v. WILLIAM S. HIATT, Commissioner North Carolina Division of Motor Vehicles" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe sole issue in this case is whether the superior court had jurisdiction to review the DMV\u2019s denial of petitioner\u2019s request for conditional restoration of his driver\u2019s license pursuant to N.C. Gen. Stat. \u00a7 2049(e). Respondent DMV argues that since petitioner\u2019s license was originally mandatorily revoked under N.C. Gen. Stat. \u00a7 20-17, petitioner is not entitled to an appeal.\nN.C. Gen. Stat. \u00a7 20-25 provides statutory authority for judicial review of license revocations by the DMV. N.C. Gen. Stat. \u00a7 20-25 in pertinent part provides:\nAny person denied a license or whose license has been canceled, suspended or revoked by the Division, except where such cancellation is mandatory under the provisions of this Article, shall have a right to file a petition within 30 days thereafter for a hearing in the matter in the superior court....\nIt is well settled that discretionary revocations and suspensions may be reviewed by a superior court under N.C. Gen. Stat. \u00a7 20-25, while mandatory revocations and suspensions may not. Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 476, 164 S.E.2d 2, 5 (1968).\nN.C. Gen. Stat. \u00a7 20-17(2) provides for the mandatory revocation of a driver\u2019s license by the DMV upon receiving a record of such driver\u2019s conviction of impaired driving under N.C. Gen. Stat. \u00a7 20-138.1. N.C. Gen. Stat. \u00a7 2049(e), which is applicable here, provides for mandatory permanent revocation when a person\u2019s license has been revoked under N.C. Gen. Stat. \u00a7 20-17(2). However, the DMV may conditionally restore a person\u2019s license after three years provided the person meets the requirements of N.C. Gen. Stat. \u00a7 2049(e)(1) and (2).\nIn the case sub judice petitioner asserts that because the DMV may restore his driving privileges after three years, this changes the character of the revocation from mandatory to discretionary; thus, review by the superior court could be obtained pursuant to N.C. Gen. Stat. \u00a7 20-25. We disagree.\nThis Court held in In re Austin, 5 N.C. App. 575, 579, 169 S.E.2d 20, 23 (1969), that since the original revocation of the petitioner\u2019s license under the provisions of N.C. Gen. Stat. \u00a7 20-17 was mandatory, the superior court was without authority to hear a petition and render a judgment revoking or modifying the mandatory revocation in that case. However, the Court went on to say that if a petitioner is unlawfully and illegally denied a license upon a hearing on a petition for reinstatement of his license, the superior court, upon proper allegations in a petition and proper notice to the respondent, is authorized to take testimony, examine into the facts of the case, and determine whether the petitioner was illegally and unlawfully denied a license by the DMV. Id. at 580, 169 S.E.2d at 23.\nIn the present case petitioner introduced evidence at both the DMV hearing and the hearing before the superior court that he had not been convicted of a motor vehicle offense, an alcoholic beverage control law offense, a drug law offense, or any criminal offense involving the consumption of alcohol or drugs during the past three years and also that he was not currently an excessive user of alcohol or drugs as required by N.C. Gen. Stat. \u00a7 2049(e)(1) and (2) in order to have his license conditionally restored. Petitioner here, like the petitioner in Austin, offered no support for the alleged conclusion that the DMV\u2019s denial of a conditional restoration of his license was an arbitrary and capricious act, and was in disregard of the law set forth in N.C. Gen. Stat. \u00a7 20-19. Therefore, we hold it was error for the superior court to enter the order requiring the DMV to conditionally restore petitioner\u2019s driving privileges.\nFurthermore, we hold petitioner\u2019s argument that the superior court has jurisdiction to review this administrative decision pursuant to N.C. Gen. Stat. \u00a7 150B-43 to be without merit. N.C. Gen. Stat. \u00a7 150B-43 provides for judicial review of a final decision in a contested case after exhaustion of all administrative remedies available to an aggrieved party.\nThis Court in Davis v. Hiatt, 92 N.C. App. 748, 750, 376 S.E.2d 44, 46, disc. rev. allowed, 324 N.C. 577, 381 S.E.2d 772 (1989), held that N.C. Gen. Stat. \u00a7 150B-43 grants jurisdiction to the superior court to review an order of revocation where the revocation is mandatory. The Court found that N.C. Gen. Stat. \u00a7 150B-43 allowed review of the original mandatory revocation because no adequate procedure for judicial review was provided for pursuant to the provisions of N.C. Gen. Stat. \u00a7 20-25. See id. Davis is clearly distinguishable from the present case. A contested case within the meaning applicable to N.C. Gen. Stat. \u00a7 150B-43 is an agency proceeding that determines the rights of a party or parties. See N.C. Gen. Stat. \u00a7 150B-2(2). A license to operate a motor vehicle is a privilege in the nature of a right of which the licensee may not be deprived except in the manner and upon the conditions prescribed by statute. Underwood at 476, 164 S.E.2d at 5. When a license has been mandatorily revoked the rights of the licensee have been determined by the DMV, and therefore the determination is subject to review by the superior court pursuant to N.C. Gen. Stat. \u00a7 150B-43. See Davis at 750, 376 S.E.2d at 46. On the other hand, once this right has been mandatorily revoked and a petitioner unsuccessfully seeks to have the license reinstated by the DMV, no superior court review of the denial is mandated unless the denial was arbitrary or illegal, because reinstatement is not a legal right but is an act of grace. See Austin at 580, 169 S.E.2d at 23. The legislature permits, but does not require, the DMV to restore a petitioner\u2019s driving privileges. Id. \u201cThe authority to exercise or apply this act of grace is granted to the [Division], not to the courts.\u201d Id.\nSince the superior court had no jurisdiction to order the Division of Motor Vehicles to restore petitioner\u2019s driver\u2019s license, the decision of the superior court is vacated and the proceeding is remanded to the superior court for entry of an order reinstating the order of the Division of Motor Vehicles denying the restoration of petitioner\u2019s driver\u2019s license.\nVacated and remanded.\nJudge ORR concurs.\nJudge JOHNSON concurs in the result.", "type": "majority", "author": "ARNOLD, Judge." }, { "text": "Judge JOHNSON\nconcurring in the result.\nI concur in the result reached by the majority opinion but write separately because I believe the majority misperceives the holding of In re Austin, 5 N.C. App. 575, 169 S.E.2d 20 (1969).\nThis Court in Austin stated the following:\nWe think that if a petitioner is unlawfully and illegally denied a license upon a hearing on a petition for reinstatement of his license, the judge of the Superior Court, upon proper allegations in a petition and proper notice to the respondent as provided in G.S. [sec.] 20-25 is authorized to take testimony, examine into the facts of the case, and determine whether the petitioner was illegally and unlawfully denied a license under the provisions of the Uniform Driver\u2019s License Act.\nId. at 580, 169 S.E.2d at 23 (emphasis in original). The Austin Court went on to find that under the facts before it that the superior court erred in ordering the DMV to reinstate the petitioner\u2019s license because he had failed to offer evidence either that \u201cthe revocation was not mandatory or that he was unlawfully and illegally denied a license.\u201d Id. at 581, 169 S.E.2d at 23. Therefore, this Court reversed the decision of the superior court not because it found that the superior court had no jurisdiction to examine the denial of petitioner\u2019s reinstatement, but because petitioner failed to put on evidence that the DMV acted unlawfully and illegally in the denial.\nI read Austin to hold that denial of reinstatement by the DMV after mandatory revocation may only be reversed in superior court if the DMV acted unlawfully and illegally. I find implicit in this that, upon proper allegations and notice to respondent, the superior court has jurisdiction to review the denial of a petition for reinstatement.\nBecause I am bound by what I perceive to be the meaning of Austin, I must conclude that the superior court had jurisdiction in this case. At the same time, however, I believe the majority opinion is correct in concluding that the DMV did not act illegally in denying petitioner\u2019s request for reinstatement. For that reason I agree with the majority\u2019s conclusion that the superior court order should be vacated.", "type": "concurrence", "author": "Judge JOHNSON" } ], "attorneys": [ "Warlick, Milsted, Dotson & Carter, by John T. Carter, Jr., for petitioner, appellee.", "Attorney General Lacy H. Thornburg, by Assistant Attorney General Mabel Y. Bullock, for the Division of Motor Vehicles, respondent, appellant." ], "corrections": "", "head_matter": "LARRY JAMES PENUEL v. WILLIAM S. HIATT, Commissioner North Carolina Division of Motor Vehicles\nNo. 894SC679\n(Filed 20 March 1990)\n1. Automobiles and Other Vehicles \u00a7 2.3 (NCI3d)\u2014 revocation of license for impaired driving \u2014 revocation mandatory \u2014 no judicial review\nThe revocation of a driver\u2019s license pursuant to N.C.G.S. \u00a7 20-17(2) by the DMV upon receiving a record of such driver\u2019s conviction of impaired driving under N.C.G.S. \u00a7 20-138.1 is mandatory, and the fact that the DMV may conditionally restore a person\u2019s license after three years provided the person meets the requirements of N.C.G.S. \u00a7 20-19(e)(l) and (2) does not change the character of the revocation from mandatory to discretionary; therefore, the revocation of petitioner\u2019s license could not be reviewed by the superior court pursuant to N.C.G.S. \u00a7 20-25, as that statute allows judicial review only of discretionary revocations and suspensions.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 133, 144.\n2. Automobiles and Other Vehicles \u00a7 2.3 (NCI3d)\u2014 mandatory revocation of license \u2014 reinstatment denied \u2014no judicial review\nThe superior court did not have jurisdiction to review the DMV\u2019s denial of reinstatment of petitioner\u2019s license pursuant to N.C.G.S. \u00a7 150B-43, because, once a driver\u2019s license has been mandatorily revoked and a petitioner unsuccessfully seeks to have the license reinstated by the DMV, no superior court review of the denial is mandated unless the denial was arbitrary or illegal, since reinstatement is not a legal right but is an act of grace.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 133, 144.\nJudge JOHNSON concurring in the result.\nAPPEAL by respondent from Orders entered 12 April 1989 by Judge James R. Strickland in ONSLOW County Superior Court. Heard in the Court of Appeals 6 February 1990.\nThis is an appeal from ah order requiring the Division of Motor Vehicles (hereinafter DMV) to conditionally restore the driving privileges of petitioner. The record discloses the following: On 13 June 1985 petitioner\u2019s North Carolina driving privileges were permanently revoked after petitioner was convicted of driving while impaired for the third time. On 7 July 1988 petitioner requested a hearing pursuant to N.C. Gen. Stat. \u00a7 20-19(e) to have his license conditionally restored. A restoration hearing was convened on 17 November 1988 and after reviewing the evidence presented the three hearing officers denied petitioner\u2019s request for a conditional restoration of his driver\u2019s license. Thereafter, petitioner filed a petition in Onslow County Superior Court for review of the DMV\u2019s denial of his request. After a hearing, the trial court found that the denial by the DMV was an arbitrary, capricious act and was in disregard of the laws contained in N.C. Gen. Stat. \u00a7 2049(e). The trial court further found that petitioner is entitled to a conditional restoration of his license and ordered the DMV to conditionally restore it. Respondent DMV appealed.\nWarlick, Milsted, Dotson & Carter, by John T. Carter, Jr., for petitioner, appellee.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Mabel Y. Bullock, for the Division of Motor Vehicles, respondent, appellant." }, "file_name": "0616-01", "first_page_order": 644, "last_page_order": 649 }