Opinion
No. 07-668.
Filed 20 May 2008.
Scotland County No. 04CVS1020.
Appeal by petitioner from judgment entered 22 November 2006 by Judge Gregory A. Weeks in Scotland County Superior Court. Heard in the Court of Appeals 14 April 2008.
Law Offices of Carl W. Thurman, III, by Carl W. Thurman, III, for petitioner-appellant. Roy Cooper, Attorney General, by Kathryne E. Hathcock, Assistant Attorney General, for respondent-appellee.
Petitioner Perry Joe Thurman appeals from a final judgment denying his request for injunctive relief and affirming the decision of the Commissioner of the North Carolina Division of Motor Vehicles ("respondent") to revoke petitioner's driver's license for a period of twelve months based on a violation of N.C.G.S. § 20-16.2. We affirm.
On the evening of 21 June 2004, Trooper C.L. Pridgen of the North Carolina State Highway Patrol was on routine patrol in Scotland County, North Carolina. At approximately 11:00 p.m., Trooper Pridgen was dispatched to the scene of a single vehicle accident on Sneeds Grove Road in Scotland County. After arriving at the scene, Trooper Pridgen observed a green Toyota Camry "sitting on all [four] tires" in a plowed field "off the right side of the roadway." Trooper Pridgen approached the vehicle and saw two men with "dirt all over" them who "obviously appeared" to have been involved in the accident.
The trooper first spoke with the older of the two men, petitioner's father Woody Thurman, who "explained [to Trooper Pridgen] that his son did a pretty good job of maintaining control of the vehicle" but said that petitioner "came around the curve a little too fast and lost control" and "then the vehicle turned upside down." Trooper Pridgen then approached petitioner, who was "leaning on the front portion" of the vehicle and swaying back and forth. The trooper observed that petitioner's "eyes were red and glassy" and noticed a strong odor of alcohol on petitioner's breath. Trooper Pridgen asked petitioner about what happened but petitioner "wouldn't say a word." Because of the uneven terrain of the plowed field at the location of the accident, as well as petitioner's apparent injuries, the trooper did not ask petitioner to submit to a field sobriety test at the scene. Petitioner was then transported to the local hospital to receive treatment for his injuries.
At the hospital, Trooper Pridgen arrested petitioner for driving while impaired based on his observations of petitioner at the scene and based on petitioner's father's statements to the trooper at the scene. At about 12:40 a.m. on 22 June 2004, the trooper asked petitioner to submit to a chemical analysis of his blood and informed petitioner of his rights in accordance with N.C.G.S. § 20-16.2(a). Petitioner refused to sign the form enumerating those rights presented to him by Trooper Pridgen and "said he wasn't gonna take" the chemical analysis test. Then, "to make sure that [petitioner] had honestly refused to take the test," at 1:15 a.m., the trooper again asked petitioner if he would submit to the chemical analysis test. Petitioner again refused the trooper's request.
On 19 August 2004, the Scotland County prosecutor signed a Dismissal Notice of Reinstatement form dismissing the criminal charge of DWI against petitioner under file number 04 CR 2659 since "[t]here [wa]s insufficient evidence to warrant prosecution" because "[the] State [could not] prove which occupant was [the] driver." On 17 December 2004, the same prosecutor dated and initialed a handwritten note on the same dismissal form which stated: "Addendum — cannot establish probable cause."
Respondent gave petitioner notice of the suspension of petitioner's driver's license based on a violation of N.C.G.S. § 20-16.2. Petitioner appealed the suspension, which was upheld at an administrative hearing, and respondent again gave notice that petitioner's driver's license would be suspended effective 17 October 2004. On 16 November 2004, petitioner filed a Complaint and Petition in Scotland County Superior Court seeking (1) "a temporary restraining order and/or [a] preliminary injunction enjoining [d]efendant from suspending [petitioner's] license untila hearing on the merits" and (2) a declaratory judgment that N.C.G.S. § 20-16.2 could not be applied to petitioner. On 7 January 2005, respondent filed a Response and petitioner filed a Motion for Temporary Restraining Order and Preliminary Injunction. On that same day, the Scotland County Superior Court granted petitioner's motion and enjoined respondent from suspending petitioner's driver's license until after a hearing on the merits. The matter was heard at a bench trial on 28 August 2006 in Scotland County Superior Court. On 22 November 2006, the trial court entered its judgment dissolving the restraining order entered on 7 January 2005 and affirming respondent's revocation of petitioner's driver's license. Petitioner gave notice of appeal to this Court on 22 December 2006.
I.
Petitioner first contends the trial court erred because it did not find that petitioner was actually driving the vehicle and so argues that N.C.G.S. § 20-16.2 cannot apply to him. We disagree.
At the time of the offense and trial in the present case, the version of N.C.G.S. § 20-16.2 in effect and applied herein read as follows:
Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. The charging officer shall designate the type of chemical analysis to be administered, and it may be administered when the officer has reasonable grounds to believe that the person charged has committed the implied-consent offense.
N.C. Gen. Stat. § 20-16.2(a) (2005) (amended 2006) (emphasis added). Thus, "administration of the [chemical analysis] test hinges solely upon the law enforcement officer having reasonable grounds to believe the person to have been operating a motor vehicle on the highway while under the influence of intoxicating liquor." In re Pinyatello, 36 N.C. App. 542, 545, 245 S.E.2d 185, 187 (1978) (emphasis added).
If a person's driver's license is subsequently revoked for willfully refusing to submit to a chemical analysis pursuant to N.C.G.S. § 20-16.2, that person may then request a hearing before the Division of Motor Vehicles to contest the suspension and, if necessary, may later appeal from a sustained revocation to superior court for a hearing de novo. See N.C. Gen. Stat. § 20-16.2(c)-(e). However, both of these proceedings are limited to a consideration of only the following issues:
(1) [whether t]he person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;
(2) [whether t]he charging officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;
(3) [whether t]he implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4) [whether t]he person was notified of the person's rights as required by subsection (a); and
(5) [whether t]he person willfully refused to submit to a chemical analysis upon the request of the charging officer.
N.C. Gen. Stat. § 20-16.2(d) (emphasis added). In other words, in a proceeding to review a license revocation for willfully refusing to submit to a chemical analysis, the reviewing entity may not determine the issue of whether the person subject to the revocation was actually driving a vehicle on a highway or public vehicular area; instead, the statute permits only a determination of whether the charging officer had reasonable grounds to believe that the person was driving and committed an implied-consent offense. See N.C. Gen. Stat. § 20-16.2(a).
Petitioner attempts to support his contention with Smith v. Powell, 293 N.C. 342, 238 S.E.2d 137 (1977), arguing that "the holding [in Smith] clearly establishes that a driver must in actuality be driving on a highway or public vehicular area, not merely that probable cause existed to believe he was." However, contrary to petitioner's assertion, the Smith Court did not hold that a court reviewing a license revocation must conclude that a driver was "in actuality . . . driving on a highway" in lieu of, or in addition to, the "reasonable grounds to believe" requirement of N.C.G.S. § 20-16.2(a). Instead, "the [sole] question for decision [before the Court in Smith] narrow[ed] to: When a person drives a motor vehicle only upon the ground beneath a highway bridge, is he driving `on a highway'" as the term is used in N.C.G.S. § 20-16.2(a)? Smith, 293 N.C. at 345, 238 S.E.2d at 140 (emphasis added). The Court answered, "he is not," and then engaged in a thorough analysis of how the term "highway" should be construed based on its use in the statute. Id.
Moreover, the Rules of Appellate Procedure provide that "[f]ailure to . . . [assign error to a conclusion of law] constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts." Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999). Here, petitioner did not assign error to the court's Conclusion of Law 1 that "[p]etitioner was arrested for an implied consent offense based upon reasonable grounds." (Emphasis added.) Thus, petitioner waived his right to challenge this conclusion. Instead, petitioner asserts that he should not be subject to a license revocation under N.C.G.S. § 20-16.2 because the court did not also conclude that petitioner was actually driving the vehicle. Nevertheless, as indicated above, in a review of a civil license revocation pursuant to N.C.G.S. § 20-16.2, the trial court is not required to determine that petitioner was actually driving in order to affirm a revocation, but may only determine that all of the relevant conditions enumerated in N.C.G.S. § 20-16.2(d) are satisfied. Since petitioner did not assign error to the court's conclusion that there were reasonable grounds to believe that petitioner committed the offense, we conclude the court did not err by affirming the revocation of petitioner's driver's license.
II.
Petitioner next contends the trial court erred when it failed to enter a declaratory judgment that N.C.G.S. § 20-16.2 could not apply in the present case because the evidence was insufficient to establish that petitioner was actually driving the vehicle. Again, we disagree.
The purpose of the Declaratory Judgment Act is "to settle and afford relief from uncertainty and insecurity, with respect to rights, status, and other legal relations." Town of Spencer v. Town of East Spencer, 351 N.C. 124, 126, 522 S.E.2d 297, 300 (1999) (internal quotation marks omitted); see also N.C. Gen. Stat. § 1-254 (2007) ("Any person . . . whose rights, status or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder."). In other words, the purpose of the Act is to determine "questions of law." See Prudential Ins. Co. of Am. v. Powell, 217 N.C. 495, 500, 8 S.E.2d 619, 622 (1940). "While, in some instances, it may be necessary to hear evidence in order to determine the legal questions presented in a proceeding under this [A]ct, proceedings may not be maintained under the [A]ct to present issues of fact only." Id. (emphasis added). Thus, for a court to have jurisdiction under the Act, petitioner must plead and prove that "a real controversy, arising out of . . . opposing contentions as to . . . respective legal rights and liabilities[,] . . . exists between or among the parties, and that the relief prayed for will make certain that which is uncertain and secure that which is insecure." Town of Spencer, 351 N.C. at 127, 522 S.E.2d at 300 (alterations in original) (internal quotation marks omitted).
Here, petitioner provides no relevant legal argument in support of his assertion that there exists a "possible ambiguity" in N.C.G.S. § 20-16.2 arising out of the fact that the court did not find petitioner was driving the vehicle. As discussed in Section I above, petitioner's contention that the court was required to determine that he was actually driving the vehicle in lieu of, or in addition to, its conclusion that the charging officer reasonably believed that petitioner committed the implied-consent offense is not supported by the plain language of N.C.G.S. § 20-16.2 or by the case law interpreting the statute cited by petitioner. Because petitioner has not identified "any question of construction or validity arising under" N.C.G.S. § 20-16.2, see N.C. Gen. Stat. § 1-254, we overrule his argument.
III.
Finally, petitioner contends respondent was collaterally estopped from asserting that the trooper reasonably believed that petitioner was driving the vehicle. Petitioner argues that respondent was precluded from making this assertion in the civil license revocation proceeding because the prosecutor dismissed the criminal DWI charge against petitioner since the State could not "establish probable cause" on the grounds that "[the] State [could not] prove which occupant was [the] driver." Again, we find no error. Under the doctrine of collateral estoppel, "the determination of an issue in a prior judicial or administrative proceeding precludes the relitigation of that issue in a later action, provided the party against whom the estoppel is asserted enjoyed a full and fair opportunity to litigate that issue in the earlier proceeding." Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004).
The doctrine of collateral estoppel, also referred to as "issue preclusion" or "estoppel by judgment," precludes relitigation of a fact, question or right in issue " when there has been a final judgment or decree, necessarily determining [the] fact, question or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit."
State v. Summers, 351 N.C. 620, 622, 528 S.E.2d 17, 20 (2000) (emphasis added) (alteration in original) (quoting King v. Grindstaff, 284 N.C. 348, 355, 200 S.E.2d 799, 805 (1973)). Thus, for collateral estoppel to apply in a subsequent action, "the issues must have been raised and actually litigated in the prior action," see id. at 623, 528 S.E.2d at 20 (emphasis added), and the "prior suit [must have] result[ed] in a final judgment on the merits." See James River Equip., Inc. v. Mecklenburg Util., Inc., 179 N.C. App. 414, 418, 634 S.E.2d 557, 560 (2006), disc. review denied, 361 N.C. 355, 644 S.E.2d 226 (2007). "[A]n issue is `actually litigated,' for purposes of collateral estoppel or issue preclusion, if it is properly raised in the pleadings or otherwise submitted for determination and [is] in fact determined." 47 Am. Jur. 2d Judgments § 494 (2006) (emphasis added).
In the present case, on 19 August 2004, the Scotland County prosecutor signed a Dismissal Notice of Reinstatement form dismissing the criminal DWI charge against petitioner since "[t]here [wa]s insufficient evidence to warrant prosecution" because "[the] State [could not] prove which occupant was [the] driver." Four months later, the same prosecutor added a note to the dismissal form that stated: "Addendum — cannot establish probable cause." We conclude that the prosecutor's decision to dismiss the criminal DWI charge for the reasons noted did not constitute a " final judgment or decree, necessarily determining [the] fact, question or right in issue, rendered by a court of record and of competent jurisdiction." See Summers, 351 N.C. at 622, 528 S.E.2d at 20 (emphasis added) (alteration in original) (internal quotation marks omitted). Therefore, while "there is no legal distinction between probable cause to arrest in a criminal proceeding and `reasonable ground to believe' that the accused was driving while impaired in a license revocation hearing," Brower v. Killens, 122 N.C. App. 685, 690, 472 S.E.2d 33, 37 (1996), for the purposes of collateral estoppel, we conclude that the issue of probable cause was not determined in the present case by the prosecutor's dismissal of petitioner's pending DWI charge. Accordingly, we overrule this assignment of error.
No error.
Judges BRYANT and ARROWOOD concur.
Report per Rule 30(e).
JUDICIAL STANDAEDS COMMISSION STATE OF NORTH CAROLINA FORMAL ADVISORY OPINION: 2009-02 June 11, 2009
QUESTION:Is a newly installed judge required to disqualify from criminal cases prosecuted by the District Attorney's office where the judge was formerly employed?
Initially this inquiry addressed a very specific circumstance regarding a judge who was employed as an Assistant District Attorney (ADA) immediately prior to the judge's election to the District Court Bench. Employment responsibilities during the final 18 to 24 months of employment as an ADA were essentially limited to prosecuting criminal cases in superior court. In the normal course of work, ADA's prosecuting in district court rarely, if ever, shared information about matters with ADA's prosecuting in superior court, unless a matter was appealed following a conviction in district court.
COMMISSION CONCLUSION:
The Judicial Standards Commission determined it to be appropriate for a judge who was formerly employed as an assistant district attorney to preside over criminal district court cases prosecuted by the District Attorney's office, provided the judge disqualifies from hearing any matter wherein the judge 1) was involved in the matter's investigation or prosecution, 2) has personal knowledge of disputed evidentiary facts, or 3) when the judge believes he/she cannot be impartial.
The Commission advises the best practice is for judges to follow a "Six Month Rule" whereby newly installed judges, for a minimum of 6 months after taking judicial office, refrain from presiding over any adjudicatory proceeding wherein an attorney associated with the judge's prior employer provides legal representation to a party in the proceeding. Specific circumstances may necessitate a deviation for the "Six Month Rule". However, judges should always disqualify in the three instances delineated above unless all counsel and pro se parties waive the potential disqualification pursuant to the remittal of disqualification procedures set out in Canon 3D of the Code of Judicial Conduct.
DISCUSSION:
Canon 3C(1) of the North Carolina Code of Judicial Conduct provides that, upon motion, judges should disqualify in proceedings in which their impartiality "may reasonably be questioned". Subparagraph (b) provides for disqualification of the judge when "[t]he judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter". However, the Commission considered relationships between attorneys working in the district attorney's office to be distinguishable from those between attorneys working together in a private law firm. Factors such as the division of duties between attorneys prosecuting in district and superior court, prosecuting attorneys being assigned to a particular county in a multi-county district, and the sheer volume of cases prosecuted in district criminal court impact the reasonableness standard by which a judge's impartiality must be considered.
References: North Carolina Code of Judicial Conduct Canon 3C(1)(b) Canon 3D