Opinion
No. COA05-177
Filed 15 November 2005 This case not for publication
Appeal by petitioner from judgment entered 20 August 2004 by Judge Henry E. Frye in Guilford County Superior Court. Heard in the Court of Appeals 22 September 2005.
Barry Synder for petitioner-appellant. Attorney General Roy Cooper, by Assistant Attorney General Jeffery R. Edwards, for respondent-appellee.
Guilford County No. 03 CVS 10989.
Phillip Ridge (petitioner) appeals from a judgment entered 20 August 2004 temporarily revoking or otherwise suspending his drivers license for his willful refusal to submit to a chemical analysis test once arrested for driving while impaired. Because we find petitioner's appeal to be moot, we dismiss it.
On 20 June 2003 at about 1:00 a.m., Officer C.H. Allison of the High Point Police Department saw petitioner make a wide right turn off of Highway 311. Officer Allison followed petitioner, and after observing him weave within his lane from one side to the other, pulled him over about a mile down the road. Officer Allison administered two sobriety tests, both of which petitioner failed. At that point, Officer Allison placed petitioner under arrest for driving while impaired.
After being taken to the intoxilyzer room in Guilford County, petitioner refused to submit to the test. As a result of his refusal, petitioner was notified by the Division of Motor Vehicles (DMV) that his license would be revoked for one year pursuant to N.C. Gen. Stat. § 20-16.2(d) (2003).
Upon receipt of a properly executed affidavit . . . [stating willful refusal to submit to chemical analysis], the Division must expeditiously notify the person charged that the person's license to drive is revoked for 12 months, effective on the tenth calendar day after the mailing of the revocation order unless, before the effective date of the order, the person requests in writing a hearing before the Division.
Id.; see also N.C. Gen. Stat. § 20-16.2(a) (2003). Petitioner did request a hearing. And while the hearing was pending, petitioner was able to retain his driving privileges. N.C. Gen. Stat. § 20-16.2(d) (2003) ("If the person properly requests a hearing, the person retains his or her license, unless it is revoked under some other provision of law, until the hearing is held. . . ."). After the hearing, the DMV entered an order supporting the temporary revocation of petitioner's license.
Petitioner then sought review before the superior court. In so doing, petitioner apparently also was issued a restraining order against the DMV or a stay to prevent the immediate enforcement of the suspension in accordance with section 20-16.2(d). See N.C. Gen. Stat. § 20-16.2(d) (2003) ("If the revocation is sustained, the person must surrender his or her license immediately upon notification by the Division."). Thus, pending review before the superior court, petitioner also retained his driving privileges. Following a hearing, on the matter the trial court entered an order with findings of fact and conclusions of law supporting suspension of petitioner's drivers license for refusal to submit to chemical analysis. The order demanded that "the restraining order previously entered by the court is dissolved and the suspension of Petitioner's license shall become effective upon notice to be mailed to petitioner by the Division of Motor Vehicles pursuant to G.S. § 20-48." Petitioner then properly filed notice of appeal to this Court.
Though no stay or restraining order is included in the record, the trial court's judgment appealed from specifically refers to one.
In seeking a trial de novo before the superior court, petitioner sought relief from the temporary revocation. Petitioner, in asking this Court to reverse the judgment of the trial court, seeks only the same remedy here: restoration of his driving privilege. The judgment was filed 20 August 2004, and the revocation would have been effective shortly thereafter. According to the record, no stay was filed pending appeal. See N.C.R. App. Pro. 8 and 23 (discussing stays pending appeals). Thus, as of today, petitioner's twelve-month suspension has since been imposed and also expired. The nature of the sanction was temporary and petitioner is now in a position to have his drivers license restored.
"A case is `moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Oakwood Acceptance Corp. v. Massengill, 162 N.C. App. 199, 212, 590 S.E.2d 412, 422 (2004) (quoting Roberts v. Madison County Realtors Ass'n., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)). And in that same vein,
whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.
Id. (quoting Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131, (internal quotations and citations omitted), disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994)). Here, the only relief sought by the appeal, restoration of petitioner's driving privilege, has already occurred; thus, we dismiss petitioner's appeal as moot. See State v. Bowes, ___ N.C. ___, 619 S.E.2d 502 (2005) ( per curiam opinion vacating and dismissing as moot State v. Bowes, 159 N.C. App. 18, 583 S.E.2d 294 (2003), in which this Court held that an appeal arising from the imposition of a temporary limited driving privilege was not moot).
Appeal dismissed.
Judges HUDSON and SMITH concur.
Report per Rule 30(e).