                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA16-702

                                     Filed: 21 March 2017

Mecklenburg County, No. 15-CVS-23668

JENNIFER ANNE WOLSKI, Petitioner,

               v.

NORTH CAROLINA DIVISION OF MOTOR VEHICLES and the COMMISSIONER
OF MOTOR VEHICLES, Respondents.


       Appeal by Respondents from order entered 24 May 2016 by Judge Daniel A.

Kuehnert in Mecklenburg County Superior Court. Heard in the Court of Appeals 11

January 2017.


       Knox, Brotherton, Knox & Godfrey, by Allen C. Brotherton, for Petitioner-
       Appellee.

       Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
       Hathcock, for Respondent-Appellant.


       DILLON, Judge.


       North Carolina Division of Motor Vehicles and the Commissioner of Motor

Vehicles (collectively referred to as “the DMV” or the “Respondents”)1 appeal from a




       1  While the two are separate entities, a number of the pleadings and documents before this
Court refer to the “North Carolina Division of Motor Vehicles and the Commissioner of Motor Vehicles”
as one single, fused entity.
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                                          Opinion of the Court



trial court order reversing an agency decision that revoked Jennifer Anne Wolski’s

driver’s license. After careful review, we affirm the trial court’s order.


                                            I. Background

        In April 2015, a Huntersville police officer arrested Jennifer Anne Wolski for

driving while under the influence.

        After being advised of her rights under N.C. Gen. Stat. § 20-16.2(a) (2013) at

police department headquarters, Ms. Wolski refused to both submit to a breathalyzer

test and sign the provided statutory form (“Rights Form”).

        The officer, who is a certified chemical analyst, executed a sworn affidavit and

revocation report2 that contained conflicting information regarding Ms. Wolski’s

refusal to submit to breathalyzer testing.3 Although the affidavit referred to an

attached Rights Form as evidence of Ms. Wolski’s refusal to submit to testing, the

attached Rights Form did not indicate that Ms. Wolski had refused testing.




        2 Pursuant to N.C. Gen. Stat. § 20-16.2(c1) (2013), the arresting officer and chemical analyst
must execute an affidavit setting forth: (1) the alleged, implied-consent offense—generally a driving
under the influence charge, (2) information regarding the arrest and offense at issue, (3) information
establishing that the arrestee was advised of her statutory rights, and (4) information establishing
whether the arrestee submitted to breathalyzer testing. Id. Execution entails completion of the
affidavit and signage by the arresting officer and chemical analyst in front “of an official authorized to
administer oaths.” Id.
        3 The affidavit indicated that Ms. Wolski had both submitted and refused to submit to

breathalyzer testing.

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                                         Opinion of the Court



       The officer later amended the attached Rights Form to reflect Ms. Wolski’s

refusal to submit to testing. The officer did not re-execute the affidavit to reflect this

change.

       The DMV notified Ms. Wolski of the impending revocation of her driver’s

license. Ms. Wolski requested a hearing to challenge the imminent revocation on

jurisdictional grounds.        The hearing officer rejected Ms. Wolski’s jurisdictional

arguments and affirmed the DMV’s decision to revoke her driver’s license.

       Ms. Wolski appealed the DMV hearing officer’s decision.                     The trial court

reversed the revocation of Ms. Wolski’s driver’s license. The DMV filed an appeal.4

                                     II. Standard of Review

       As the trial court reviewed the hearing officer’s decision as an appellate court,

see Johnson v. Robertson, 227 N.C. App. 281, 286, 742 S.E.2d 603, 607 (2013)

(reaffirming principle that a trial court acts as an appellate court when reviewing

certain, final agency decisions), our standard of review is limited to “(1) determining

whether the trial court exercised the appropriate scope of review and, if appropriate,

(2) deciding whether the court did so properly,” ACT-UP Triangle v. Comm’n for

Health Servs. of the State of N.C., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)




       4 The DMV’s notice of appeal refers to the “Respondents”—namely the North Carolina Division
of Motor Vehicles and the Commissioner of Motor Vehicles—as one single, fused entity. Nevertheless,
we have appellate jurisdiction to review this matter as the DMV’s intent to appeal the trial court’s
order as two separate entities “can be fairly inferred from the notice [of appeal].” State v. Springle,
___N.C. App. ___, ___, 781 S.E.2d 518, 521 (2016) (internal quotation marks omitted).

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                                  Opinion of the Court



(internal quotation marks omitted).     Here, the trial court’s appropriate scope of

review is “whether there is sufficient evidence in the record to support the

Commissioner’s findings of fact and whether the conclusions of law are supported by

the findings of fact and whether the Commissioner committed an error of law in

revoking the license.” N.C. Gen. Stat. § 20-16.2(e) (2013). Questions of law are

reviewed de novo. See Davis v. Dep’t of Crime Control & Pub. Safety, 151 N.C. App.

513, 516, 565 S.E.2d 716, 719 (2002).

                                    III. Analysis

      The DMV contends in part that the trial court erred as the officer’s affidavit

was executed in compliance with N.C. Gen. Stat. § 20-16.2(c1). For the following

reasons, we disagree.

      At the outset, we note that the trial court applied the correct standard of

review. The trial court revealed that “[t]he standard of review applied . . . is . . .

whether there is sufficient evidence in the record to support Respondents’ findings of

fact, whether the conclusions of law are supported by the findings of fact and whether

Respondents committed an error of law in revoking the license.”

      As to the DMV’s substantive argument, we hold that Lee v. Gore, 365 N.C. 227,

717 S.E.2d 356 (2011) controls and therefore conclude that the DMV lacked

jurisdiction to revoke Ms. Wolski’s driver’s license.    In Lee, our Supreme Court

affirmed a Court of Appeals’ decision reversing license revocation, holding that “an



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                                   Opinion of the Court



affidavit materially altered outside the presence of someone authorized to administer

oaths, or an affidavit that omits entirely the material element of willfulness, is not

properly executed for the purposes of section 20–16.2(d).” Id. at 233–34, 717 S.E.2d

at 361 (internal quotation marks omitted).

      Much like the officer in Lee, id. at 233, 717 S.E.2d at 361, the officer here failed

to modify the Rights Form in front of a magistrate or an official authorized to

administer oaths. Although the modification at issue in Lee was made directly on the

affidavit form, id. at 228-29, 717 S.E.2d at 358, the officer’s modification here

nevertheless related to a material requirement under N.C. Gen. Stat. § 20-16.2(c1)—

namely, whether Ms. Wolski submitted to testing. Moreover, the Rights Form was

specifically incorporated by reference in the affidavit. See Patterson ex rel. Jordan v.

Patterson, 137 N.C. App. 653, 659, 529 S.E.2d 484, 488 (2000) (applying general

principle of incorporation by reference to affidavits).       Therefore, any material

alteration to the Rights Form required re-execution of the affidavit in compliance

with N.C. Gen. Stat. § 20-16.2(c1). Accordingly, we hold that the officer’s failure to

modify the Rights Form in front of a magistrate or official stripped the DMV of

jurisdiction to revoke Ms. Wolski’s driver’s license.

                                    IV. Conclusion




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                                   Opinion of the Court



       As the Rights Form was not modified in front of a magistrate or official, we

hold that the DMV lacked jurisdiction to revoke Ms. Wolski’s license. We therefore

affirm the trial court’s ruling.

       AFFIRMED.

       Judges ELMORE and ZACHARY concur.




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