{ "id": 8564105, "name": "JAMES W. SMITH v. EDWARD L. POWELL, Commissioner of Motor Vehicles of North Carolina", "name_abbreviation": "Smith v. Powell", "decision_date": "1977-10-11", "docket_number": "No. 5", "first_page": "342", "last_page": "348", "citations": [ { "type": "official", "cite": "293 N.C. 342" } ], "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": "158 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572856 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0312-01" ] }, { "cite": "91 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625764 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0469-01" ] }, { "cite": "144 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576632 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0653-01" ] }, { "cite": "111 N.Y.S. 2d 703", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1952, "opinion_index": 0 }, { "cite": "31 N.W. 2d 44", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1948, "opinion_index": 0 }, { "cite": "225 Minn. 384", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 380326 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/minn/225/0384-01" ] }, { "cite": "104 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "97 Ga. App. 779", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1581632 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ga-app/97/0779-01" ] }, { "cite": "68 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624770 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0572-01" ] }, { "cite": "158 S.E. 2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571698 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0147-01" ] }, { "cite": "84 S.E. 340", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "169 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658391 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/169/0265-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14453, "ocr_confidence": 0.81, "pagerank": { "raw": 3.715018279443118e-07, "percentile": 0.8935822127081541 }, "sha256": "c45ad964a4c90aa36de9df32bc556fabaa57a2877487f1fc5d0b49f95b2d9931", "simhash": "1:5f40093bcdbca3bb", "word_count": 2440 }, "last_updated": "2023-07-14T16:59:49.379337+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES W. SMITH v. EDWARD L. POWELL, Commissioner of Motor Vehicles of North Carolina" ], "opinions": [ { "text": "LAKE, Justice.\nG.S. 20-16.2 provides:\n\u201c(a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor.\n* * *\n\u201c(c) * * * [U]pon the receipt of a sworn report of the arresting officer and the person authorized to administer a chemical test that the person arrested, after being advised of his rights as set forth in subsection (a), willfully refused to submit to the test upon the request of the officer, the Department shall revoke the driving privilege of the person arrested for a period of six months.\n* * *\n\u201c(h) As used in this section, the term \u2018public vehicular area\u2019 shall mean and include any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the isntitutions maintained and supported by the State of North Carolina, or any of its subdivisions, or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business or municipal establishment providing parking space for customers, patrons, or the public.\u201d (Emphasis added.)\nThe petitioner\u2019s driver\u2019s license was not suspended by the Division of Motor Vehicles upon the theory that his presence under the bridge, in the condition described by the arresting officer, constituted reasonable ground for the officer to believe that the petitioner, prior to reaching the area under the bridge, had driven his vehicle upon a highway in that condition. The theory upon which the Division acted was that driving a motor vehicle entirely within the limits of the area beneath the bridge, while in such condition, justified the arresting officer in requesting the petitioner to take a breathalyzer test and the wilful refusal of the petitioner to take such test required the Division to revoke his driver\u2019s license.\nWe are not here concerned with the authority of the Legislature to make it a criminal offense for any person, while under the influence of intoxicating liquor, to drive a motor vehicle within the limits of such an area, or at other places than upon a highway or a public vehicular area, and to authorize the Division of Motor Vehicles to suspend such person\u2019s driver\u2019s license upon his wilful refusal to take a breathalyzer test. Upon that question, see: Flanders v. State, 97 Ga. App. 779, 104 S.E. 2d 538 (1958); State v. Carroll, 225 Minn. 384, 31 N.W. 2d 44 (1948); People v. Taylor, 202 Mise. 265, 111 N.Y.S. 2d 703 (1952).\nThe above quoted statute authorizes the suspension of a person\u2019s driver\u2019s license for refusal to take a breathalyzer test only if such person was requested to take the test by an officer who arrested him or her with reasonable grounds to believe he or she, while under the influence of intoxicating liquor, drove or operated a votor vehicle on a highway or a public vehicular area. Thus, the issue for determination upon this appeal is whether one who drives a motor vehicle only within the limits of the area beneath a highway bridge is driving \u201con a highway or public vehicular area\u201d as those terms are used in this statute.\nObviously, the above quoted definition of \u201cpublic vehicular area\u201d set forth in Paragraph (h) of G.S. 20-16.2 does not include the area under this bridge, for the area in question is not \u201cupon the grounds and premises\u201d of an institution or establishment of a type specified in that definition. Thus, the question for decision narrows to: When a person drives a motor vehicle only upon the ground beneath a highway bridge, is he driving \u201con a highway?\u201d We hold he is not.\nG.S. 20-4.01 provides:\n\u201cUnless the context otherwise requires, the following words and phrases, for the purpose of this Chapter, shall have the following meanings: (Emphasis added.)\n* * *\n\u201c(13) Highway or Street. \u2014 The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic. * * *\u201d\nWhile the record shows people, with some frequency, drive motor vehicles beneath the bridge here in question, nothing in the record indicates that they have a right to drive upon any part of this area.\nIt is elementary that when a statute contains a definition of a word or term used therein, such definition, unless the context clearly requires otherwise, is to be read into the statute wherever such word or term appears therein. See: Yacht Co. v. High, 265 N.C. 653, 144 S.E. 2d 821 (1965); Trust co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246 (1956); 73 Am. Jur. 2d, Statutes, \u00a7 225. Thus, the determination of the issue presented by this appeal requires the construction of this definition of \u201chighway.\u201d\nThe term \u201chighway\u201d and the synonymous term \u201cstreet\u201d appear many times, and in varying types of provisions, in Chapter 20 of the General Statutes, the Motor Vehicle Law. Clearly, the Legislature has provided that, unless the context requires otherwise, the word \u201chighway\u201d is to be given the same connotation in all of these provisions, whether they be penal, remedial, or otherwise. Thus, the well known principles of statutory construction that a penal statute is to be strictly construed (State v. Pinyatello, 272 N.C. 312, 158 S.E. 2d 596 (1968)) and a statute designed to promote safety is to be liberally construed (State v. Lipkin, 169 N.C. 265, 84 S.E. 340 (1915)) have no. application to this matter. The definition of \u201chighway\u201d in G.S. 20-4.01(13) is, therefore, to be construed so as to give its terms their plain and ordinary meaning. State v. Wiggins, 272 N.C. 147, 158 S.E. 2d 37 (1967); Yacht Co. v. High, supra; Cab Co. v. Charlotte, 234 N.C. 572, 68 S.E. 2d 433 (1951).\nIn 39 Am. Jur. 2d, Highways, Streets and Bridges, \u00a7 1, it is said:\n\u201cIn some instances, and for particular purposes, the term \u2018highway\u2019 has been defined to encompass the entire right of way, including the shoulder and other places open to travel, but in other instances and for other purposes, the term has been defined narrowly so as to exclude the exterior boundaries of the right of way and confine its meaning to that part of a public road open to the use of the public for the purpose of vehicular travel.\u201d\nSee also: 39A C.J.S., Highways, \u00a7 l(l)b.\nIn Paragraph (38), G.S. 20-4.01 also defines the term \u201cRoadway.\u201d That definition is as follows:\n\u201cThat portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the shoulder. * * * \u201d \u25a0\nThese two definitions, considered together, show that the Legislature in defining \u201chighway\u201d intended to put at rest the question noted in the above quotation from American Jurisprudence and to make it clear that the entire \u201cwidth\u201d between the right-of-way lines is included in a \u201chighway\u201d as distinguished from a \u201croadway.\u201d\nIt is, of course, true that a \u201chighway\u201d or a \u201cstreet\u201d is not limited to its surface so far as the right of the State to use, maintain and protect it from damage and private use are concerned. In this sense, it includes not only the entire thickness of the pavement and the prepared base upon which it rests but also \u201cso much of the depth as may not unfairly be used as streets are used\u201d for the laying therein of drainage systems and conduits for sewer, water and other services. Elliott, Roads and Streets, \u00a7 20 (1926); 39 Am. Jur. 2d, Highways, Streets and Bridges, \u00a7 258. Nevertheless, the primary concern of the Legislature in defining \u201chighway\u201d as used in Chapter 20 of the General Statutes was with the \u201cwidth,\u201d not the depth. \u201cWidth\u201d means \u201cthe lineal extent of a thing from side to side.\u201d Century Dictionary; Webster\u2019s New International Dictionary.\nIn ordinary speech, the expression \u201cdriving or operating a motor vehicle on a highway\u201d connotes driving on the top surface of the highway, not the ground beneath a bridge over which the \u201croadway\u201d portion of the highway runs. In ordinary speech, one thing is said to move or rest \u201con\u201d another when it moves or rests upon the top surface of the second thing, as when a book is said to lie on a table as compared with lying in the table drawer.\nThe contention of the Division of Motor Vehicles that G.S. 20-16.2, dealing with the breathalyzer test, applies to any operation of a motor vehicle, at whatever depth or level beneath the surface, so long as it is within the right-of-way lines is an ingenious argument, born of a commendable desire to promote safety of persons and property, but in our opinion the Legislature did not have areas beneath bridges in mind when it enacted this statute. If the dry land under a bridge is part of the \u201chighway\u201d which crosses a stream upon the bridge, then so is the water under the bridge and the bed of the. stream or pond so crossed. It would be carrying legal logic a bit far to say that one fishing from a boat anchored beneath this bridge over the Intercoastal Waterway is fishing \u201con a highway.\u201d\nThe record indicates that there is a considerable stretch of level land under this bridge, to which people have relatively easy access by motor vehicle and which they use for launching boats and related activities. Obviously, it would be dangerous to drive a motor vehicle in this area while the driver is under the influence of intoxicating liquor. The Legislature, if it sees fit to do so, may deal with this danger by appropriate legislation. We simply hold that it has not undertaken to do so by providing for the giving of a breathalyzer test to one who, under the influence of intoxicating liquor, drives a motor vehicle \u201con a highway.\u201d\nThe decision of the Court of Appeals is, therefore, reversed and the matter is remanded to that court for the entry of a judgment affirming the judgment of the Superior Court.\nReversed and remanded.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by William W. Melvin, Deputy Attorney General, and William B. Ray, Assistant Attorney General, for Appellee.", "Cherry and Wall by James J. Wall for Appellant." ], "corrections": "", "head_matter": "JAMES W. SMITH v. EDWARD L. POWELL, Commissioner of Motor Vehicles of North Carolina\nNo. 5\n(Filed 11 October 1977)\nAutomobiles \u00a7 122\u2014 driving under bridge within right-of-way lines \u2014 refusal to take breathalyzer test\nA petitioner who drove a motor vehicle only within the limits of the area beneath a highway bridge did not drive on a \u201chighway\u201d as that term is used in the statute dealing with the breathalyzer test, G.S. 20-16.2; therefore, the Division of Motor Vheicles had no authority to revoke the driver\u2019s license of petitioner for his refusal to take a breathalyzer test after his arrest for driving in such an area while under the influence of intoxicating liquor.\nAPPEAL by petitioner, Smith, from the Court of Appeals which reversed James, J., who, at the 29 March 1976 Criminal Session of New HANOVER, ordered the respondent to reinstate the petitioner\u2019s driver\u2019s license.\nThe facts are not in dispute. On 2 October 1975, Deputy Sheriff Willis of New Hanover County went to the area underneath the bridge by which U.S. Highways 74 and 76 cross the Intercoastal Waterway to investigate a report of a shooting of a firearm, with which matter the petitioner Smith had no connection whatever. Employees of the State mow the grass and, occasionally, pick up trash beneath the bridge, but the State does not maintain any roadway, driveway or parking lot beneath the bridge and has never designated that area as a public vehicular area. From time to time, members of the public drive their vehicles under the bridge and launch small boats into the water from this area.\nOn the occasion in question, Deputy Willis observed the petitioner Smith back Smith\u2019s automobile a distance of about four feet directly under the center of the bridge so that'the petitioner\u2019s vehicle almost struck the automobile of Deputy Willis. At no time did Deputy Willis observe the petitioner operate his automobile anywhere else. The deputy approached the petitioner, observed his condition, concluded, with reasonable cause, that he was under the influence of intoxicating liquor, and placed him under arrest for driving under the influence thereof. He requested the peitioner to take a breathalyzer test, the request being made in compliance with all procedural requirements of G.S. 20-16.2. The petitioner refused to take the test. For that reason, the respondent Commissioner of Motor Vehicles revoked the petitioner\u2019s driver\u2019s license for six months, in reliance upon G.S. 20-16.2. The petitioner requested an administrative hearing, which was granted. Following the hearing, the Division of Motor Vehicles reaffirmed the suspension.\nThereupon, the petitioner filed his petition in the Superior Court of New Hanover County requesting the court to order the respondent to reinstate his driver\u2019s license immediately. A hearing was had in the Superior Court before Judge James who found the facts to be as above summarized and concluded that the area beneath the bridge is not a \u201cpublic vehicular area\u201d as that term is used in G.S. 20-16.2 and that the petitioner was not operating his vehicle upon a \u201chighway\u201d as that term is used in the said statute. For this reason, Judge James concluded that the arresting officer did not have authority under the said statute \u201cto request or require the petitioner to take a breathalyzer examination\u201d and, therefore, the petitioner had the right to refuse to do so. Consequently, he ordered the petitioner\u2019s driver\u2019s license reinstated immediately.\nThe Commissioner appealed to the Court of Appeals, which reversed the order of Judge James, the majority holding that the area under the bridge is part of a \u201chighway\u201d as that term is defined in Chapter 20 of the General Statutes. Judge Clark dissented, by reason of which dissent the petitioner appealed to the Supreme Court as a matter of right.\nRufus L. Edmisten, Attorney General, by William W. Melvin, Deputy Attorney General, and William B. Ray, Assistant Attorney General, for Appellee.\nCherry and Wall by James J. Wall for Appellant." }, "file_name": "0342-01", "first_page_order": 376, "last_page_order": 382 }