{ "id": 8566492, "name": "DONALD GRAY JOYNER v. JOE W. GARRETT, COMMISSIONER, N. C. DEPARTMENT OF MOTOR VEHICLES", "name_abbreviation": "Joyner v. Garrett", "decision_date": "1971-07-30", "docket_number": "No. 75", "first_page": "226", "last_page": "240", "citations": [ { "type": "official", "cite": "279 N.C. 226" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "70 Cal. Rptr. 172", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "264 Cal. App. 2d 52", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2183203 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/264/0052-01" ] }, { "cite": "70 Cal. Rptr. 1", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "263 Cal. App. 2d 682", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2225856 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/263/0682-01" ] }, { "cite": "88 A.L.R. 2d 1065", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.E. 2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "21 Ohio St. 2d 38", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 6711719 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ohio-st-2d/21/0038-01" ] }, { "cite": "202 A. 2d 267", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 4631100, 4631189 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/vt/124/0219-01", "/vt/124/0222-01" ] }, { "cite": "124 Vt. 222", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4631189 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/vt/124/0222-01" ] }, { "cite": "258 Iowa 1173", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4436839 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/iowa/258/1173-01" ] }, { "cite": "194 Kan. 620", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 520455 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/kan/194/0620-01" ] }, { "cite": "88 A.L.R. 2d 1055", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "172 Neb. 415", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2596052 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/neb/172/0415-01" ] }, { "cite": "183 Neb. 644", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5228741 ], "weight": 2, "pin_cites": [ { "page": "646" }, { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/neb/183/0644-01" ] }, { "cite": "17 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "178 Va. 455", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1980666 ], "opinion_index": 0, "case_paths": [ "/va/178/0455-01" ] }, { "cite": "259 N.E. 2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ohio App. 2d 130", "category": "reporters:state", "reporter": "Ohio App. 2d", "case_ids": [ 1467185 ], "opinion_index": 0, "case_paths": [ "/ohio-app-2d/22/0130-01" ] }, { "cite": "111 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "883" } ], "opinion_index": 0 }, { "cite": "251 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626974 ], "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0671-01" ] }, { "cite": "52 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "230 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628490 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/230/0091-01" ] }, { "cite": "193 S.E. 728", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1961, "pin_cites": [ { "page": "730" } ], "opinion_index": 0 }, { "cite": "212 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613572 ], "year": 1961, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0516-01" ] }, { "cite": "193 S.E. 134", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1969, "opinion_index": 0 }, { "cite": "212 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602954 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/212/0189-01" ] }, { "cite": "166 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "84 S.E. 2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600357 ], "opinion_index": 0, "case_paths": [ "/nc/241/0031-01" ] }, { "cite": "119 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "254 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627377 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/254/0607-01" ] }, { "cite": "134 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "261 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572867 ], "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0269-01" ] }, { "cite": "141 S.E. 2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572977 ], "opinion_index": 0, "case_paths": [ "/nc/264/0348-01" ] }, { "cite": "29 S.E. 2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595587 ], "opinion_index": 0, "case_paths": [ "/nc/224/0100-01" ] }, { "cite": "92 S.E. 2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627135 ], "opinion_index": 0, "case_paths": [ "/nc/243/0735-01" ] }, { "cite": "135 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "261 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575039 ], "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0616-01" ] }, { "cite": "97 A.L.R. 2d 1367", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "pin_cites": [ { "page": "1371" } ], "opinion_index": 0 }, { "cite": "46 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "228 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627584 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/228/0584-01" ] }, { "cite": "45 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "228 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626138 ], "weight": 3, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0301-01" ] }, { "cite": "132 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574842 ], "opinion_index": 0, "case_paths": [ "/nc/260/0375-01" ] }, { "cite": "164 S.E. 2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "274 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560662 ], "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0473-01" ] } ], "analysis": { "cardinality": 1108, "char_count": 34422, "ocr_confidence": 0.549, "pagerank": { "raw": 1.8937804739115684e-06, "percentile": 0.9944998723863824 }, "sha256": "7b23191d6e2c4f84d7f013e1b5236c16d413a02eae93f70f60a1d8b92db11ba1", "simhash": "1:1729bfbb35090042", "word_count": 5767 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONALD GRAY JOYNER v. JOE W. GARRETT, COMMISSIONER, N. C. DEPARTMENT OF MOTOR VEHICLES" ], "opinions": [ { "text": "SHARP, Justice.\nPetitioner \u201cprays\u201d this Court to rescind the action of the Department and to declare his license \u201cin good standing as it pertains to this arrest.\u201d He contends that he is entitled to this relief because (1) he was denied the right to cross-examine Patrolman Spainhour at the administrative hearing; (2) the hearing officer did not find that he wilfully failed to submit to the chemical test, and therefore his findings did not sustain the Department\u2019s order of revocation; (3) Judge Clark erred in ruling that the burden of proof is on petitioner; and (4) the evidence was insufficient to sustain a finding that petitioner wilfully refused to take the test.\nSummarized, except when quoted, G.S. 20.16.2 provides in pertinent part: Any person arrested upon the charge of operating a motor vehicle on a public highway of this State while under the influence of intoxicating liquor shall submit to a chemical test of his breath or blood upon the request of a law-enforcement officer having reasonable grounds to believe him guilty of the charge. If the accused \u201cwilfully refuses\u201d the request, no test shall be given, \u201cbut the Department, upon the receipt of a sworn report of the law-enforcement officer or other witness that the arrested person had been driving a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor and that the person had wilfully refused to submit to the test upon the request of the law-enforcement officer, shall revoke his driving privilege for a period of sixty days.\u201d Upon receipt of the sworn report the Department shall notify the arrested person that \u201chis license to drive is revoked immediately\u201d unless he files a written request for a hearing within three days of receipt of the notice. Such a request permits the person to retain his license until after the hearing. The scope of the hearing \u201cshall cover the issues of whether the person had been driving a motor vehicle upon the public highways of the State . . . while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test upon the request of the officer. Whether the person was informed that his privilege to drive would be revoked if he refused to submit to the test shall be an issue.\u201d The hearing shall be conducted under the conditions specified in G.S. 20-16 (d).\nG.S. 20-16(d), inter alia, empowers the duly authorized agents of the Department to administer oaths and to issue subpoenas for witnesses and the production of relevant books and papers. \u201cUpon such hearing the Department shall either rescind its order of suspension, or good cause appearing therefor, may extend the suspension of such license.\u201d (Emphasis added.) If the revocation is sustained G.S. 20-25 gives the person whose driving privilege has been revoked \u201ca right to file a petition within thirty (30) days thereafter for a hearing in the matter in the superior court. ...\u201d Upon the filing of such a petition for review the court has jurisdiction \u201cto take testimony and examine into the facts of the case, and to determine whether the petitioner ... is subject to suspension ... of license. . . . \u201d\nFrom the foregoing statutes it is clear that any person whose driver\u2019s license has been suspended by the Department of Motor Vehicles under the provisions of G.S. 20-16.2 (d) has the right to a \u201cfull de novo review by a Superior Court judge.\u201d Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 476, 164 S.E. 2d 2, 5. Accord, In re Donnelly, 260 N.C. 375, 132 S.E. 2d 904; In re Revocation of License of Wright, 228 N.C. 301, 45 S.E. 2d 370; s. c. 228 N.C. 584, 46 S.E. 2d 696; Annot., 97 A.L.R. 2d 1367, 1371. This means the court must hear the matter \u201con its merits from beginning to end as if no trial or hearing had been held\u201d by the Department and without any presumption in favor of its decision. In re Hayes, 261 N.C. 616, 622, 135 S.E. 2d 645, 649. No discretionary power is conferred upon the court in matters pertaining to the revocation of licenses. If, under the facts found by the judge, the statute requires the suspension or revocation of petitioner\u2019s license \u201cthe order of the department entered in conformity with the facts found must be affirmed.\u201d In re Revocation of License of Wright, 228 N.C. at 589, 46 S.E. 2d at 700. The power to issue, suspend, or revoke a driver\u2019s license is vested exclusively in the Department of Motor Vehicles, subject to review by the Superior Court and, upon appeal, by the appellate division. Harrell v. Scheidt, Com\u2019r of Motor Vehicles, 243 N.C. 735, 92 S.E. 2d 182; State v. Cooper, 224 N.C. 100, 29 S.E. 2d 18.\nIn this case petitioner concedes that at the time of his arrest he was operating a motor vehicle upon a public highway while under the influence of an intoxicant and that twelve days later he pled guilty to the offense. He does not deny that he was requested to take the Breathalyzer test, that he was told he could call an attorney and select a witness to view the test, or that he was apprised of the consequences of his refusal to take the test. His contention is that he does not remember anything the officer said to him; that he was so drunk he was incapable of wilfully refusing to take the test. Thus, the only issue before the Department and in the Superior Court on appeal was whether petitioner wilfully refused to submit to the test.\nWe note that section (c) of G.S. 20-16.2 directs that the chemical test shall not be given if the arrested person \u201cwilfully refuses\u201d to take it and requires the Department to revoke his license upon the law-enforcement officer\u2019s sworn report that the person had \u201cwilfully refused\u201d to submit to the test. However, section (d), which specifies the issues determining whether the initial suspension of petitioner\u2019s license should be sustained, states the third issue to be \u201cwhether he refused to submit to the test upon the request of the officer.\u201d In that issue the word wilfully is omitted. Obviously, however, when the legislature used the word refused in section (d) it referred back to the wilful refusal specified in section (c) and embraced the concept of a conscious choice purposely made. It is equally clear that the Department\u2019s hearing officer employed the word in that sense when he stated the issues in the words of the statute in his report of petitioner\u2019s hearing. In Black\u2019s Law Dictionary (4th Ed., 1951) refusal 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 See also State v. Arnold, 264 N.C. 348, 141 S.E. 2d 473. This is the sense of the word refuse as used in G.S. 20-16.2 and as used by the Department in its proceedings under that statute. Accordingly, Judge Clark specifically found as a fact that petitioner \u201cdid wilfully refuse to submit to the test.\u201d\nPetitioner contends the Department\u2019s finding that he \u201cdid refuse\u201d to take the test was insufficient to sustain its order suspending his license; that a finding of wilful refusal was required. This contention is without merit. However, it is suggested that in future proceedings under G.S. 20-16.2, in the interest of clarity and uniformity, the Department should employ the word wilful or wilfully in its findings and orders dealing with an arrested person\u2019s refusal to take the test.\nPetitioner also complained in the Superior Court that at the administrative hearing he \u201cwas not afforded the right of cross-examination and the right to confront his accuser.\u201d On this appeal he says that the evidence against him at the first hearing was only \u201cthe printed form affidavit\u201d of the arresting officer. \u201cRules governing the admissibility of evidence in civil proceedings generally have been applied in proceedings for the suspension or revocation of a driver\u2019s license.\u201d 60 C.J.S. Motor Vehicles \u00a7 164.29 (1969). G.S. 20-16.2 does not make the law-enforcement officer\u2019s sworn report prima facie evidence that the arrested person wilfully refused to submit to the Breathalyzer test. Therefore, if he objects to its introduction, the report cannot be used as evidence against him.\nThe record, however, fails to show that at the hearing he either objected to the introduction of the sworn report or demanded the right to cross-examine Patrolman Spainhour. Evidence admitted without objection is properly considered by the court and, on appeal, the question of its competency cannot be presented for the first time. 4 Strong, N. C. Index Trial \u00a7 15 (1961). Petitioner\u2019s blanket exceptions to the hearing officer\u2019s report and to the Department\u2019s order of suspension will not sustain his assignment of error that he was denied the right to cross-examine Officer Spainhour. \u201cAn assignment of error is not a substitute for an exception.\u201d Equipment Company v. Johnson, Comr. of Revenue, 261 N.C. 269, 273, 134 S.E. 2d 327, 330.\nUpon receipt of Patrolman Spainhour\u2019s sworn report that petitioner had wilfully refused to take the Breathalyzer test, G.S. 20-16.2 required the Department to revoke his license. Petitioner\u2019s timely request for a hearing, however, temporarily suspended the revocation. After the hearing the Department could either rescind its order of suspension or \u201cgood cause appearing therefor\u201d extend the suspension of his license. G.S. 20-16(d). Upon the hearing, therefore, the burden was upon the Department to show that petitioner had wilfully refused to take the test.\nProceedings involving the suspension or revocation of a license to operate a motor vehicle are civil and not criminal in nature, and the revocation of a license is no part of the punishment for the crime for which the licensee was arrested. Honeycutt v. Scheidt, 254 N.C. 607, 119 S.E. 2d 777; Harrell v. Scheidt, Com\u2019r of Motor Vehicles, supra; 1 N. C. Index 2d Automobiles \u00a7 1 (1967). A license to operate a motor vehicle is not a natural or unrestricted right, nor is it a contract or property right in the constitutional sense. It is a conditional privilege, and the General Assembly has full authority to prescribe the conditions upon which licenses may be issued and revoked. However, once issued, a license is of substantial value to the holder and may be revoked or suspended only in the manner and for the causes specified by statute. Harrell v. Scheldt, Com\u2019r of Motor Vehicles, supra; Fox v. Scheldt, Comr. of Motor Vehicles, 241 N.C. 31, 84 S.E. 2d 259; In re Revocation of License of Wright, supra.\nAt the administrative hearing, under G.S. 20-16 (d), the licensee has the right to be confronted by any witness whose testimony is used against him and to cross-examine the witness if he so desires. However, this is a right which the licensee waives if he does not assert it in apt time. State v. Moore, 275 N.C. 198, 166 S.E. 2d 652; In re West, 212 N.C. 189, 193 S.E. 134; 60 C.J.S. Motor Vehicles \u00a7 164.27 (1969) ; 7 Am. Jur. 2d Automobiles and Highway Traffic \u00a7 122 (1963). In this case, petitioner waived his right to cross-examine the arresting officer at the administrative hearing by failing to assert it. Furthermore, in the absence of a timely objection as to its introduction, Officer Spainhour\u2019s sworn report was sufficient evidence to sustain the Department\u2019s suspension of petitioner\u2019s license. The record shows no objection to its introduction.\nWhen this proceeding came on for review in the Superior Court Judge Clark correctly ruled that the hearing before him was de novo; and that he was not bound by the Department\u2019s findings of fact and conclusions of law. In the Superior Court the Department did not offer the arresting officer\u2019s sworn report. Patrolman Spainhour testified for the Department and was cross-examined by petitioner. Therefore, if any errors were committed in the administrative proceedings, they were rendered harmless by the hearing de novo on appeal.\nPetitioner\u2019s contention that the evidence before Judge Clark will not support his finding of fact that petitioner wilfully refused the arresting officer\u2019s request that he submit to a chemical test of his breath is without merit. Patrolman Spainhour\u2019s testimony supports the finding as does petitioner\u2019s statement that he knew he was drunk and didn\u2019t see any need of taking the test. Of course, petitioner also testified that he didn\u2019t remember being asked to take the Breathalyzer test; that he didn\u2019t know what was going on; and that he didn\u2019t remember anything the officer told him. The credibility of conflicting evidence and the inferences to be drawn from it were for the judge, whose duty it was to determine whether petitioner had wilfully refused to take the test.\nPetitioner\u2019s assignment of error No. 4 presents the crucial question on this appeal: Did the judge commit prejudicial error when he ruled that the burden of proof in the de novo hearing in the Superior Court was on petitioner?\n\u201cThe rule as to the burden of proof (the burden of the issue) constitutes a substantial right, for upon it many cases are made to turn, and its erroneous placing is regarded as reversible error.\u201d Williams v. Insurance Company, 212 N.C. 516, 518, 193 S.E. 728, 730; 4 Strong, N. C. Index Trial \u00a7 34 (1961). If in doubt as to any controversial issue, it is the duty of the trier of facts \u201cto decide that issue against the party on whom the burden rests and who has failed to produce the requisite degree of conviction.\u201d Stansbury, North Carolina Evidence \u00a7 206 (2d ed. 1963) ; In re Westover Canal, 230 N.C. 91, 52 S.E. 2d 225; 4 Strong, N. C. Index Trial \u00a7 14 (1961). The law relating to the burden of proof is equally applicable to jury and nonjury trials. Stansbury, supra \u00a7 203, n. 16.\nAs heretofore pointed out in the administrative hearing the burden of proof was upon the Department to show \u201cgood cause\u201d for extending the suspension of petitioner\u2019s license. Since the hearing on appeal in the Superior Court was de novo, if the Department had the burden of proof at the first hearing, obviously it also had the burden at the de novo hearing in the Superior Court. \u201c[T]he general rule is that on the trial de novo on appeal to review an order of suspension or revocation the state, or its administrative agency or official, has the burden of proving the charge on which the suspension or revocation was based....\u201d60 C.J.S. Motor Vehicles \u00a7 164.41 (1969).\nAs authority for its contention that the burden is upon petitioner, the Department relies upon a statement in Beaver v. Scheidt, Comr. of Motor Vehicles, 251 N.C. 671, 674, 111 S.E. 2d 881, 883. Beaver, whose license had been revoked for successive convictions of speeding, ignored the Department\u2019s order suspending his license. In consequence, he was thereafter twice convicted for driving after his license had been revoked, and successive orders revoking his license for additional periods of time were served upon him. Contending that the first suspension was void, Beaver petitioned for the restoration of his driving privileges. In affirming the orders of revocation, Justice Rodman, speaking for the Court, said: \u201cIf petitioner had been improperly deprived of his license by the Department due to a mistake of law or fact, his remedy was to apply for a hearing as provided by G.S. 20-16 (c) or by application to the Superior Court as permitted by G.S. 20-25. At a hearing held pursuant to either of these statutory provisons he would, be permitted to show that the suspension was erroneous. In re Wright, 228 N.C. 301, 45 S.E. 2d 370; s. c., 228 N.C. 584, 46 S.E. 2d 696. Petitioner could not contemptuously ignore the quasi judicial determination made by the Department.\u201d (Emphasis added.)\nNeither the foregoing statement nor the decision in Beaver support the Department\u2019s contention that petitioner had the burden of proof. Beaver\u2019s appeal did not raise the question of who had the burden of proof. The decision was that the Department\u2019s original order of suspension was binding and enforceable until vacated in the manner provided by law. Beaver\u2019s remedy was (1) to request a hearing before the Department and (2) to appeal an adverse administrative decision to the Superior Court, where he was entitled to a full de novo review by the judge.\nWhen the judge has expressly placed the burden of proof upon the wrong party, and conflicting inferences may be drawn from the evidence, it is impossible for an appellate court to know whether the erroneous allocation of the burden dictated his findings of fact. This proceeding, therefore, must be remanded to the Superior Court for a rehearing. If, upon the rehearing, at which the burden of proof is placed upon the Department, the court finds that petitioner did not wilfuly refuse to submit to the Breathalyzer test at the time of his arrest on 27 September 1969, it will reverse the Department\u2019s order revoking petitioner\u2019s license for sixty days. If it finds that petitioner did wilfully refuse to take the test the court will sustain the Department\u2019s order suspending petitioner\u2019s license and remand the cause to the Department so that it may specify the additional sixty days\u2019 suspension.\nPetitioner\u2019s contention, made for the first time in his brief on appeal, that the twelve months\u2019 suspension of his license which followed his plea of guilty to the charge of drunken driving constituted his \u201cfull penalty,\u201d is untenable.\nThe suspension of a license for refusal to submit to a chemical test at the time of an arrest for drunken driving and a suspension which results from a plea of guilty or a conviction of that charge are separate and distinct revocations. The interpretation which petitioner seeks would render G.S. 20-16.2 superfluous and meaningless. Petitioner\u2019s guilty plea in no way exempted him from the mandatory effects of the sixty-day suspension of his license if he had wilfully refused to take a chemical test. Hoban v. Rice, 22 Ohio App. 2d 130, 259 N.E. 2d 136. In Prichard v. Battle, 178 Va. 455, 17 S.E. 2d 393, petitioner\u2019s license was revoked for leaving the scene of an accident. Thereafter the Governor pardoned him for the criminal offense. The Supreme Court of Appeals of Virginia held that the revocation of his driver\u2019s license, not being a part of the punishment for the offense, was not affected by the pardon.\nUnder implied consent statutes such as G.S. 20-16.2, the general rule is that neither an acquittal of a criminal charge of operating a motor vehicle while under the influence of intoxicating liquor, nor a plea of guilty, nor a conviction has any bearing upon a proceeding before the licensing agency for the revocation of a driver\u2019s license for a refusal to submit to a chemical test. 60 C.J.S. Motor Vehicles \u00a7 164.16 (1969). \u201cIt is well established that the same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person\u2019s privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one is of no consequence to the other.\u201d Ziemba v. Johns, 183 Neb. 644, 646, 163 N.W. 2d 780, 781. Accord, Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W. 2d 75; 88 A.L.R. 2d 1055; Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P. 2d 982; Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W. 2d 866; State v. Muzzy, 124 Vt. 222, 202 A. 2d 267; State v. Starnes, 21 Ohio St. 2d 38, 254 N.E. 2d 675. Annot., 88 A.L.R. 2d 1065 (1961) and A.L.R. 2d Later Case Service collect the pertinent cases.\nSerenko v. Bright, 263 Cal. App. 2d 682, 70 Cal. Rptr. 1, involves facts strikingly similar to this case. In Serenko, petitioner \u201casserted that she refused to take any of the chemical tests offered because she admittedly was intoxicated and she saw no reason to take any chemical test further to demonstrate that fact.\u201d She also asserted that she did not fully understand the penalty for failure to take the test and that the court\u2019s finding that she refused to take the test was not supported by the evidence. In sustaining the revocation the Court of Appeal said: It is \u201cneither relevant nor material to the application of the statute whether the person charged pleads guilty or not. At the time the person arrested refuses the chemical test, there is no assurance that upon arraignment he or she will plead guilty. The arrestee by subsequent guilty plea has no power to avoid retroactively the consequences of his or her earlier refusal to cooperate.\u201d Id. at 688, 70 Cal. Rptr. at 5. Accord, August v. Department of Motor Vehicles, 264 Cal. App. 2d 52, 70 Cal. Rptr. 172.\nThe General Assembly has seen fit to except North Carolina from the general rule that a licensee\u2019s subsequent acquittal of a drunken driving charge has no bearing upon a proceeding to revoke his license because of his refusal to submit to the chemical test at the time of his arrest. G.S. 20-16.2 (c) provides that any person arrested for drunken driving who refuses to submit to a chemical test to determine the alcoholic content of his blood and who is thereafter acquitted of the charge shall have his driver\u2019s license restored immediately. \u201cChemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims he has drunk only a little and could not be intoxicated. They protect the person who has not been drinking to excess but has an accident and has the odor of alcohol on his breath. They save a person from a drunken driving charge when his conduct creates the appearance of intoxication but who actually is suffering from other causes over which he has no control. Marbut v. Motor Vehicle Department, supra at 623, 400 P. 2d at 985. It would seem, therefore, that one who is not under the influence of an intoxicant has scant incentive to refuse the test and that the North Carolina exception encourages those who are under the influence to refuse the test in the hope that the State might be unable to prove their guilt without it. Be that as it may, the conditions under which a driver\u2019s license may be revoked are determined by the legislature. Petitioner was not acquitted; he pled guilty as charged. The only issue in this proceeding is whether he wilfully refused to take the test. If the Superior Court finds that he did, his license must be revoked for an additional sixty days; otherwise not.\nError and remanded.", "type": "majority", "author": "SHARP, Justice." } ], "attorneys": [ "Vaughan S. Winborne for plaintiff appellant.", "Attorney General Morgan, Assistant Attorneys General Melvin and Costen for respondent appellee." ], "corrections": "", "head_matter": "DONALD GRAY JOYNER v. JOE W. GARRETT, COMMISSIONER, N. C. DEPARTMENT OF MOTOR VEHICLES\nNo. 75\n(Filed 30 July 1971)\n1. Automobiles \u00a7 1\u2014 suspension of driver\u2019s license \u2014 jurisdiction \u2014 review\nThe power to issue, suspend, or revoke a driver\u2019s license is vested exclusively in the Department of Motor Vehicles, subject to review by the superior court and, upon appeal, by the appellate division.\n2. Automobiles \u00a7 2\u2014 suspension of license \u2014 refusal to take breathalyzer test \u2014 finding of wilfulness\nWith respect to the statute authorizing 60-day suspension of driver\u2019s license upon the driver\u2019s wilful refusal to take a breathalyzer test, a finding by the Department of Motor Vehicles that the driver \u201cdid refuse\u201d to take the breathalyzer test is equivalent to a finding that the driver \u201cwilfully refused\u201d to take the test. G.S. 20-16.2(c) and (d).\n3. Automobiles \u00a7 2\u2014 suspension of license \u2014 administrative hearing \u2014 inadmissibility of officer\u2019s affidavit\nArresting officer\u2019s affidavit that the petitioner wilfully refused to take a breathalyzer test is inadmissible in evidence upon objection by petitioner at an administrative hearing on the suspension of his license.\n4. Automobiles \u00a7 2\u2014 suspension of license \u2014 administrative hearing \u25a0\u2014 waiver of objection\nWhere petitioner in an administrative hearing on the suspension of his driver\u2019s license failed either to object to the admissibility of the arresting officer\u2019s sworn report or to demand the right to cross-examine the officer, he waived the right to assert an appeal that the report was inadmissible and that he was denied the right of cross-examination.\n5. Automobiles \u00a7 2\u2014 suspension of license \u2014 refusal to take breathalyzer test \u2014 administrative hearing \u2014 burden of proof\nAt an administrative hearing on the suspension of petitioner\u2019s driver\u2019s license for refusing to take a breathalyzer test at the time of his arrest for drunken driving, the Department of Motor Vehicles had the burden to show that the petitioner wilfully refused to take the test.\n6. Automobiles \u00a7 2\u2014 suspension of license \u2014 administrative hearing \u2014 waiver of cross-examination\nPetitioner waived his right to cross-examine the arresting officer at an administrative hearing on the suspension of his driver\u2019s license when he failed to assert such right.\n7. Automobiles \u00a7 2\u2014 suspension of license \u2014 administrative hearing \u2014 hearing de novo \u2014 harmless error\nAny error occurring in the administrative hearing on the suspension of petitioner\u2019s driver\u2019s license is rendered harmless by the superior court hearing de novo.\n8. Automobiles \u00a7 2\u2014 suspension of license \u2014 superior court hearing \u2014 sufficiency of findings\nSuperior court\u2019s finding and conclusion that the petitioner wilfully refused the arresting officer\u2019s request that he submit to a breathalyzer test was supported by the officer\u2019s own testimony.\n9. Automobiles \u00a7 2\u2014 suspension of license \u2014 superior court hearing \u2014 burden of proof\nThe Department of Motor Vehicles has the burden of proof in a hearing de novo in the superior court on the suspension of petitioner\u2019s driver\u2019s license for wilfully refusing to take a breathalyzer test; accordingly, a ruling which placed the burden of proof on petitioner is reversible error.\n10. Trial \u00a7 34\u2014 burden of proof \u2014 substantial right\nThe rule as to the burden of proof constitutes a substantial right.\n11. Trial \u00a7 34\u2014 burden of proof \u2014 nonjury trials\nThe law relating to the burden of proof is equally applicable to jury and nonjury trials.\n12. Automobiles \u00a7 1\u2014 suspension of license \u2014 effect of sentence in criminal case\nThe twelve-month suspension of petitioner\u2019s driver\u2019s license which was imposed upon his plea of guilty to the charge of drunken driving did not preclude the Department of Motor Vehicles from suspending petitioner\u2019s driver\u2019s license for refusing to take a breathalyzer test at the time of his arrest for drunken driving.\nAppeal by petitioner from Clark, J., 27 October 1970 Session of Wake, transferred from the Court of Appeals for initial appellate review by the Supreme Court under its general order 31 July 1970, entered pursuant to G.S. 7A-31(b) (4).\nThis proceeding was instituted under G.S. 20-25 to review an order of the respondent, Department of Motor Vehicles (Department), suspending petitioner\u2019s driver\u2019s license because of his refusal to take the Breathalyzer test. The allegations in petitioner\u2019s petition for review, admissions in the Department\u2019s answer, and record evidence establish the following events:\nOn 27 September 1969 petitioner, a resident of Wake County, was arrested in Carteret County upon a charge of operating a motor vehicle on a public highway while under the influence of an intoxicant, a violation of G.S. 20-138. He pled guilty to the charge on 9 October 1969, and his driver\u2019s license was revoked for one year with \u201climited driving privileges in accordance with G.S. 20-179.\u201d\nOn 1 October 1969, acting under G.S. 20-16.2 (c) and (d), the Department notified petitioner that his driving privilege was revoked immediately for sixty days unless he requested a hearing within three days. Petitioner requested the hearing, which was held on 6 November 1969 in accordance with G.S. 20-16.2 (d). The only persons present at the hearing were petitioner, his attorney, and the hearing officer.\nThe hearing officer\u2019s report, which petitioner attached to his petition as Exhibit A, shows that at the hearing petitioner made the following statements: \u201cWas arrested \u2014 Was intoxicated. Plead guilty to charge on October 9, 1969 and was issued limited driving privilege by the court \u2014 Does not remember being offered breath test nor being advised of loss of license for refusing test. In fact, advised officer that no purpose would be served by taking test, inasmuch, as he was pleading guilty to charge.\u201d\nThe hearing officer, answering the issues to which G.S. 20-16.2 limits the scope of the administrative hearing, found (1) petitioner was driving upon the public highways of this State while under the influence of intoxicating liquor; (2) he was placed under arrest; (8) he refused to submit to a chemical test of his breath upon the request of the arresting officer; and (4) he was informed his privilege to drive would be revoked if he refused to submit to the test.\nFollowing the hearing, on 20 November 1969, the Department notified petitioner that the revocation of his driving privilege was sustained and, beginning 28 November 1969, his driver\u2019s license was revoked for sixty days. This notice of revocation was attached to the petition as Exhibit B.\nIn the record on appeal, at the end of Exhibit A attached to the petition, appears the following: \u201cPetitioner\u2019s Exceptions Nos. 1 and 2.\u201d At the end of Exhibit B and just before a notation with reference to the date of the verification of the petition, appears \u201cPetitioner\u2019s Exception No. 3.\u201d\nOn 1 December 1969, pursuant to G.S. 20-25, petitioner petitioned the Superior Court of Wake County to review the ruling of the Department, and he secured from the court an order staying the revocation of his license pending the review.\nBefore hearing petitioner\u2019s appeal on 26 October 1970 Judge Clark ruled that the matter was before him de novo; that he was not bound by the Department\u2019s findings of fact and conclusions of law; and that the burden of proof was on petitioner to show that his license had been unlawfully suspended. (These rulings are the basis for petitioner\u2019s exceptions 4 and 5.) In the prehearing colloquy between counsel and the court, petitioner\u2019s attorney asserted that in the administrative hearing the burden of proof was upon the Department. Judge Clark replied, \u201cWell, I think the burden of proof is on the petitioner. Are you ready to proceed?\u201d Counsel for petitioner announced his readiness and called petitioner, who testified as follows:\nIn September 1969, while operating his motor vehicle on the highway between Atlantic Beach and Salter Path, petitioner was arrested by Highway Patrolman Spainhour for \u201cdriving under the influence.\u201d Petitioner \u201cwas drunk enough\u201d so that he didn\u2019t \u201cknow what was going on.\u201d He learned later that he had been arrested about 1:00 a.m. on September 27th. He remembers seeing Patrolman Spainhour and nobody else. However, he does not remember anything the officer told him. He does not know whether he was advised of his constitutional rights, asked to take the Breathalyzer test, or told the consequences of a refusal to take the test; nor does he know whether he took the test. He said: \u201cThe best I can remember I told him I was gonna plead guilty to drunken driving. ... I think I told him that I was gonna plead guilty. I know I talked to him. I knew I was drunk and I didn\u2019t see any need of taking the test. I don\u2019t know if he asked me to even take the test. I couldn\u2019t refuse anything I didn\u2019t know.\u201d At his trial petitioner pled guilty to the drunken driving charge and his license, which has since been restored, was revoked for a year with \u201ccertain privileges to drive to and from work.\u201d\nThe Department\u2019s evidence consisted of the testimony of Patrolman T. H. Spainhour and tended to show:\nDuring the early morning hours of 27 September 1969 he arrested petitioner upon a charge of operating a motor vehicle upon a public highway while under the influence of an intoxicant. At the time petitioner was drunk. Spainhour advised him of his constitutional rights, and petitioner said he understood them. The patrolman then explained to petitioner the nature of the Breathalyzer test; that it was free; that he was entitled to call an attorney and to select a witness to view the testing procedures. Spainhour also informed petitioner that if he de-dined to take the test his operator\u2019s license would be suspended for sixty days. He then took petitioner to the patrol station where a sergeant from the Morehead City Police Department prepared to administer the Breathalyzer test. When the machine was ready petitioner refused to submit to the test. He was again advised that his license would be suspended if he did not take the test. Notwithstanding, petitioner persisted in his refusal, saying that \u201che was a taxpayer and he didn\u2019t have to take it.\u201d He also refused to \u201cwalk the line,\u201d to take the \u201cturning tests,\u201d and to answer the questionnaire, which was one of the routine tests given a person charged with drunken driving. Petitioner said \u201che was not gonna answer any questions.\u201d Spainhour, who \u201cdoesn\u2019t know how drunks think,\u201d didn\u2019t know then and still does not know whether petitioner understood what he told him. However, petitioner obeyed his instructions to get in or out of the car, to go in the door at the patrol station, and to sit down inside. When asked \u201cto step up and take the test,\u201d however, he refused. He could stand up, but he wobbled.\nSpainhour, pursuant to G.S. 20-16.2 (c), sent to the Department of Motor Vehicles the report that petitioner had refused to submit to the test.\nAt the conclusion of the hearing, from the evidence presented, inter alia, Judge Clark found: On 27 September 1969 petitioner was arrested for a violation of G.S. 20-138. He was requested by the arresting officer to submit to a chemical test of his breath to determine the alcoholic content of his blood and was fully advised of his rights in connection with it. At that time petitioner \u201cwas not unconscious or otherwise in a condition which would have rendered him incapable of refusing to take the chemical test.\u201d Petitioner \u201cdid wilfully refuse to submit to said test.\u201d\nUpon the foregoing findings Judge Clark entered a judgment affirming the Department\u2019s order of 20 November 1969 revoking petitioner\u2019s driving privilege for sixty days. In the record, immediately following the judgment, appears the following: \u201cPetitioner\u2019s exceptions Nos. 6, 7, 8, 9 and 10.\u201d\nVaughan S. Winborne for plaintiff appellant.\nAttorney General Morgan, Assistant Attorneys General Melvin and Costen for respondent appellee." }, "file_name": "0226-01", "first_page_order": 254, "last_page_order": 268 }