              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-912

                                  Filed: 4 April 2017

Guilford County, No. 16 CVS 2827

WAYNE T. BRACKETT, JR., Petitioner,

             v.

KELLY J. THOMAS, Commissioner, Respondent.


      Appeal by respondent from order entered 16 June 2016 by Judge Susan E. Bray

in Guilford County Superior Court. Heard in the Court of Appeals 6 February 2017.


      Joel N. Oakley for petitioner-appellee.

      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Christopher W. Brooks, for respondent-appellant.


      TYSON, Judge.


                                 I. Procedural Background

      Wayne T. Brackett, Jr. (“Petitioner”) filed a complaint against Kelly J. Thomas,

Commissioner of the North Carolina Division of Motor Vehicles, (“Respondent”) on 19

January 2016. Petitioner alleged he was arrested and charged with driving while

impaired on 13 August 2015.        Petitioner further alleged “[Respondent] notified

Petitioner that effective January 18, 2016, [P]etitioner’s driving privileges were to be

suspended and revoked based on a refusal to submit to a chemical test.”
                                 BRACKETT V. THOMAS
                                   Opinion of the Court



      Petitioner requested an administrative hearing before the Division of Motor

Vehicles (“DMV”), which was conducted on 7 January 2016. The DMV administrative

hearing officer upheld the suspension of Petitioner's driving privileges. Petitioner

thereafter filed a petition for a hearing in superior court, pursuant to N.C. Gen. Stat.

§§ 20-16.2 and 20-25 (2015).

      The superior court heard Petitioner's petition on 6 June 2016 and reversed the

decision of the DMV, holding “[t]he record does not support the conclusion under N.C.

Gen. Stat. § 20-16.2(d)(5).” Petitioner was later convicted of the underlying charge of

impaired driving.    Respondent appeals and argues the superior court erred in

reversing the administrative decision of the DMV hearing officer. We affirm.

                                II. Statement of Jurisdiction

      Jurisdiction lies in this Court as an appeal of a final judgment of a superior

court entered upon review of an administrative agency pursuant to N.C. Gen. Stat. §

7A-27(b)(1).

                                   III. Standard of Review


      On appeal from a DMV hearing, the superior court sits as an appellate court

and determines “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) (2015). This Court reviews the

superior court's decision to “‘(1) determin[e] whether the trial court exercised the

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appropriate scope of review and, if appropriate, (2) decid[e] whether the court did so

properly.’” Johnson v. Robertson, 227 N.C. App. 281, 286-87, 742 S.E.2d 603, 607

(2013) (quoting ACT–UP Triangle v. Comm’n for Health Servs., 345 N.C. 699, 706,

483 S.E.2d 388, 392 (1997)).

      “The standard of review for an appellate court upon an appeal from an order

of the superior court affirming or reversing an administrative agency decision is the

same standard of review as that employed by the superior court.” Dorsey v. UNC-

Wilmington, 122 N.C. App. 58, 62–63, 468 S.E.2d 557, 560 (1996) (citation omitted).

We apply the same standard of review required by N.C. Gen. Stat. § 20-16.2(e) for

reviewing a DMV decision to revoke a petitioner’s driving privileges for a willful

refusal to submit to chemical analysis for an implied-consent charge. On appeal,

“there is a presumption in favor of regularity and correctness in proceedings in the

trial court with the burden on the appellant to show error.” L. Harvey & Son Co. v.

Jarman, 76 N.C. App. 191, 195–96, 333 S.E.2d 47, 50 (1985) (citing In re Moore, 306

N.C. 394, 293 S.E.2d 127 (1982), app. dism., 459 U.S. 1139, 74 L.Ed.2d 987 (1983)).

                                     IV. Analysis

      Respondent argues the superior court erred in reversing the DMV’s decision.

The Commissioner asserts the agency record contains substantial evidence to support

the findings of fact, and the findings of fact support the hearing officer’s conclusion

that Petitioner willfully refused to submit to chemical analysis. We disagree.




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                                   Opinion of the Court



      This appeal arises from a revocation proceeding under N.C. Gen. Stat. § 20-

16.2, “which authorizes a civil revocation of the driver’s license when a driver has

willfully refused to submit to a chemical analysis.” Steinkrause v. Tatum, 201 N.C.

App. 289, 292, 689 S.E.2d 379, 381 (2009), aff’d per curiam, 364 N.C. 419, 700 S.E.2d

222 (2010). N.C. Gen. Stat. § 20–16.2 “provides for a civil hearing at which the driver

can contest the revocation of her driver's license.” Id. at 292, 689 S.E.2d at 381.

      Pursuant to N.C. Gen. Stat. § 20–16.2(d), the hearing is limited to

consideration of whether:

             (1) The 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) A law enforcement 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) The implied-consent offense charged involved death or
             critical injury to another person, if this allegation is in the
             affidavit;

             (4) The person was notified of the person’s rights as
             required by subsection (a); and

             (5) The person willfully refused to submit to a chemical
             analysis.

N.C. Gen. Stat. § 20-16.2(d) (2015).

      Respondent argues substantial evidence in the record supports the findings of

fact in the DMV’s decision, which in turn supports the DMV’s conclusion of law. The



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                                   Opinion of the Court



superior court reviewed the record and the transcript of the DMV's administrative

hearing and heard arguments from both parties.

      In its order reversing the DMV’s decision, the superior court found “[t]he record

does not support the conclusion under N.C. Gen. Stat. § 20-16.2(d)(5). Therefore, the

Hearing Officer should not have found that the petitioner willfully refused to submit

to a chemical analysis of his breath.” The superior court’s order does not set out the

standard of review required by N.C. Gen. Stat. § 20-16.2(e), and does not explain

which of the agency’s fact findings were unsupported. The order does not state what

standard of review was used by the superior court.

      However, as our Supreme Court held in Capital Outdoor, Inc. v. Guilford Cty.

Bd. of Adjust., 355 N.C. 269, 559 S.E.2d 547 (2002), “an appellate court's obligation

to review a superior court order for errors of law. . . can be accomplished by addressing

the dispositive issue(s) before the agency and the superior court without examining

the scope of review utilized by the superior court.” Id. (adopting the dissenting opinion

in 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, Judge, dissenting)).

After review of the record and transcripts, we consider the issue under the applicable

statutory standard of review, without remanding the case to the superior court.

      Respondent argues substantial evidence in the record supports the findings of

fact, which in turn supports the DMV’s conclusion of law that Petitioner willfully

refused to submit to a chemical analysis.        The DMV Hearing Officer made the




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                                   Opinion of the Court



following findings of fact in his order, which upheld the revocation of Petitioner’s

driver’s license:

              1. On August 13, 2015, Officer Brent Kinney, Guilford
              County Sheriff’s Office, was stationary in the Food Lion
              parking lot at 7605 North NC Hwy 68 when he observed
              the petitioner and a female walking to the connecting
              parking lot of a bar, Stoke Ridge, between 9:30-9:40 [p.m.].
              He noted the petitioner had a dazed appearance and was
              unsure on his feet.

              2. Officer Brent Kinney observed the petitioner enter the
              driver’s seat of a gold Audi, back out of the parking space,
              and quickly accelerate to about 26 mph in the Food Lion
              parking [lot].

              3. Officer Brent Kinney got behind the petitioner until the
              petitioner stopped in the parking lot. At that point[,]
              Officer Brent Kinney observed both doors open and the
              petitioner and the female exit the vehicle.

              4. Officer Brent Kinney lost sight of the vehicle when he
              exited the parking lot. Then he got behind the vehicle when
              it exited the parking lot.

              5. Officer Brent Kinney observed the gold Audi cross the
              yellow line twice and activated his blue lights and siren.

              6. The female was driving and Officer Brent Kinney
              determined she was not impaired.

              7. Officer Brent Kinney detected a strong odor of alcohol on
              the petitioner, whom he saw driving in the PVA of Food
              Lion and observed he had slurred speech, glassy eyes and
              was red-faced.

              8. The petitioner put a piece of candy in his mouth even
              after Officer Brent Kinney told him not to do so. He
              subsequently removed the piece of candy when asked to do
              so.



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9. Officer Brent Kinney asked the petitioner to submit to
the following tests: 1) Recite alphabet from E-U—
Petitioner recited E, F, G, H, I, J, K, L, M, N, O, P[,] and
stopped; and 2) Recite numbers backwards from 67-54—
Petitioner recited 67, 66, 65, 4, 3, 2, 1, 59, 8, 7, 6, 5,4, 3, 2,
1.

10. Officer Brent Kinney arrested the petitioner, charging
him with driving while impaired, and transported him to
the Guilford County jail control for testing.

11. Officer Brent Kinney, a currently certified chemical
analyst with the Guilford County Sheriff’s Office, read
orally and provided a copy of the implied consent rights at
10:30 [p.m.] The petitioner refused to sign the rights form
and did not call an attorney or witness.

12. Officer Brent Kinney explained and demonstrated how
to provide a sufficient sample of air for the test.

13. Officer Brent Kinney requested the petitioner submit
to the test at 10:49 [p.m.] The petitioner did not take a deep
breath as instructed and faked blowing as the instrument
gave no tone and the gauge did not move, indicating no air
was being introduced.

14. Officer Brent Kinney warned the petitioner that he
must blow as instructed or it would be determined he was
refusing the test and explained again how to provide a
sufficient sample.

15. The petitioner made a second attempt to submit to the
test. This time he did take a breath but then gave a strong
puff and then stopped; and then gave a second strong puff
and stopped.

16. The petitioner’s second attempt concluded at 10:50
[p.m.] at which time Officer Brent Kinney determined he
was refusing the test by failing to follow his instructions
and marked the refusal at that time.

17. The petitioner’s second attempt resulted in a detection of
mouth alcohol. With that, Officer Brent Kinney had to reset

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            the instrument, not to provide another opportunity for the
            petitioner to take the test, but to enter the refusal into the
            instrument. [emphasis added].

            18. In spite of the test ticket recording the refusal at 10:56
            [p.m.], the DHHS 4081 indicates the refusal was actually
            at 10:50 [p.m.]

            19. The doctor’s note indicates the petitioner’s asthma
            appears to be stabilized with medication and anxiety
            disorder is managed by Xanax.

The DMV Hearing Officer also made the following conclusions of law in its order:

            1. [Petitioner] was charged with an implied-consent
            offense.

            2. Officer Brent Kinney had reasonable grounds to believe
            that [Petitioner] had committed an implied-consent
            offense.

            3. The implied-consent offense charged involved no death
            or critical injury to another person.

            4. [Petitioner] was notified of his rights as required by
            N.C.G.S. 20-16.2(a).

            5. [Petitioner] willfully refused to submit to a chemical
            analysis.

   A. Evidence That Petitioner Was Charged With An Implied-Consent Offense
      Under the first requirement of N.C. Gen. Stat. § 20–16.2(d), testimony at the

administrative hearing is sufficient evidence to show Petitioner was charged with an

implied-consent offense. The DMV’s Finding of Fact number 10, relevant to this

conclusion of law, is supported by Officer Brent Kinney’s testimony that he arrested

Petitioner for driving while impaired.     Additionally, Petitioner concedes in his

petition seeking review of the DMV’s revocation of his license that he was charged

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                                    Opinion of the Court



with the implied-consent offense of Impaired Driving under N.C. Gen. Stat. § 20-

138.1. This conclusion of law is supported by the findings and is not in dispute.

 B. Evidence That A Law Enforcement Officer Had Reasonable Grounds To Believe
             Petitioner Had Committed An Implied–Consent Offense
      “[R]easonable grounds in a civil revocation hearing means probable cause, and

is to be determined based on the same criteria.” Steinkrause, 201 N.C. App. at 293,

689 S.E.2d at 381. “[P]robable cause requires only a probability or substantial chance

of criminal activity, not an actual showing of such activity.” Id. at 293, 689 S.E.2d at

381-82 (alteration in original). “A determination of probable cause depends on the

totality of the circumstances.” Id. at 293, 689 S.E.2d at 381.

      Concerning the second requirement, Respondent identifies the DMV Hearing

Officer’s Findings of Facts 1 through 9 as supporting the conclusion that Officer

Kinney had reasonable grounds to believe Petitioner had committed an implied-

consent offense. Officer Kinney indicated in his testimony: (1) Petitioner appeared to

be impaired based on his gait, glassy eyes, and dazed look; (2) Officer Kinney observed

Petitioner operating his vehicle while in the shopping center parking lot (3) Petitioner

admitted to Officer Kinney that he had driven his car in the shopping center parking

lot; (4) Petitioner had slurred speech; (5) After Officer Kinney had pulled over the

vehicle Petitioner was in, Petitioner disregarded Officer Kinney’s instructions to not

put candy in his mouth; (6) Petitioner “had a very strong odor of alcohol on him[;]”

and (7) Petitioner failed two field sobriety tests.



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                                   Opinion of the Court



      Officer Kinney’s testimony is competent evidence, which supports the DMV’s

Findings of Fact 1, 7, 8, and 9. These Findings of Fact support the DMV’s conclusion

that a law enforcement officer had reasonable grounds to believe Petitioner had

committed an implied-consent offense. See Atkins v. Moye, 277 N.C. 179, 185, 176

S.E.2d 789, 794 (1970) (finding that the “[f]act that a motorist ha[d] been drinking,

when considered in connection with faulty driving . . . or other conduct indicating an

impairment of physical or mental faculties, is sufficient prima facie [evidence] to show

a violation of [the driving while impaired statute].”) (quotations and citations

omitted).

    C. The Affidavit Contains No Allegation That The Implied-Consent Offense
          Charged Involved Death Or Critical Injury To Another Person
      The third requirement of N.C. Gen. Stat. § 20-16.2(d) is inapplicable to the

present case.    No death or critical injury to another person was alleged in the

affidavit. Neither party contends subsection (3) is at issue.

                D. Evidence That Petitioner Was Notified Of His Rights
      As to the fourth requirement, Respondent asserts Officer Kinney’s testimony

shows he read Petitioner his implied-consent rights, and supplied Petitioner with a

copy of his implied-consent rights. Petitioner refused to sign the implied-consent

rights form or indicate he wanted to call an attorney or witness. This testimony

supports the DMV hearing officer’s Finding of Fact number 11. Finding of Fact

number 11 supports the hearing officer’s conclusion of law that Petitioner was

notified of his rights as required by N.C. Gen. Stat. § 20-16.2(a).

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 E. Evidence That Petitioner Willfully Refused To Submit To A Chemical Analysis
       As to the fifth requirement, Respondent asserts testimony presented at the

DMV hearing shows Petitioner willfully refused to submit to a chemical analysis.

Officer Kinney testified that: (1) he instructed Petitioner on how to provide a valid

sample of breath for testing; (2) Petitioner failed to follow the officer’s instructions on

the first Intoximeter test, as the pressure gauge on the instrument did not indicate

that air was being breathed by Petitioner; (3) Officer Kinney provided Petitioner a

second opportunity to provide an air sample; and (4) contrary to Officer Kinney’s

instructions, Petitioner finished blowing before being told to stop and then followed

up with another puff of air.

       Petitioner urges us to affirm the superior court’s decision and asserts the

admitted evidence in the record shows: (1) the results of Petitioner’s second

Intoximeter test registered “mouth alcohol;” (2) the operating manual and procedures

for the EC/IR II Intoximeter requires that if the machine detects “mouth alcohol,”

then a subsequent test should be administered after a 15-minute observation period;

(3) Petitioner testified that he blew as long and hard as he could into the Intoximeter;

(4) Petitioner testified he told the arresting officer before being administered the

Intoximeter that he suffered from asthma.

       In Steinkrause v. Tatum, this Court concluded that where the petitioner

breathed quick, short bursts of air into the breathalyzer, contrary to the chemical

analyst’s instructions to provide an adequate continuous breath sample, the evidence


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                                   Opinion of the Court



was sufficient to support a finding and conclusion that the petitioner willfully refused

to submit to chemical analysis. Steinkrause, 201 N.C. App. at 296-97, 689 S.E.2d at

383-84. In Steinkrause, the petitioner complained to the arresting officer that injuries

she suffered had diminished her ability to provide an adequate breath sample. Id.

      The arresting officer testified that the petitioner looked physically capable of

providing an adequate sample of breath. Id. Relying on Tedder v. Hodges, the Court

held that evidence of a petitioner’s failure to follow the instructions of an intoxilyzer

operator provides an adequate basis for a superior court to conclude that the

petitioner willfully refused chemical analysis. Id. at 298, 689 S.E.2d at 385 (citing

Tedder v. Hodges, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885 (1995)). Respondent

argues, citing Steinkrause and Tedder, the arresting officer’s testimony that

Petitioner did not follow instructions provided an adequate basis for the DMV

Hearing Officer’s findings of fact to support the conclusion Petitioner had willfully

refused to submit to chemical analysis.

      The facts in both Steinkrause and Tedder are factually distinguishable from

the instant case. In Steinkrause and Tedder, “petitioners agreed to submit to a test

of their breath and failed to maintain sufficient pressure to provide a valid sample.”

Id. at 299, 689 S.E.2d at 385 (summarizing Tedder v. Hedges, 119 N.C. App. 169, 457

S.E.2d 881). In neither case did the intoxilyzer machine register “mouth alcohol” nor

sufficient samples when the petitioners purported to blow.




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                                    Opinion of the Court



       Here, the findings of fact show and it is undisputed that when Petitioner blew

a second time, the Intoximeter registered “mouth alcohol” as the result of the sample.

The arresting officer asserted Petitioner failed to follow instructions by blowing

insufficiently into the machine and he marked it as a willful refusal. Rather than

indicating Petitioner blew insufficiently to provide a sample on his second attempt,

Petitioner provided an adequate sample for the Intoximeter to read and register

“mouth alcohol”. The arresting officer’s testimony that Petitioner blew insufficiently

is directly contradicted by the Intoximeter’s registering a sample with a “mouth

alcohol” test result.

       Respondent did not produce any evidence to demonstrate the EC/IR II

Intoximeter will produce a “mouth alcohol” reading if the test subject fails to submit

a sufficient sample.    The undisputed evidence shows the EC/IR II Intoximeter

registered “mouth alcohol” and did not indicate an inadequate sample or refusal from

Petitioner’s failure to blow sufficiently.

       Officer   Kinney’s   testimony    asserting     Petitioner   willfully   refused   is

contradicted by the machine’s acceptance of Petitioner’s sample.            The indicated

procedure to follow from this result of “mouth alcohol” is for a subsequent EC/IR II

Intoximeter test to be administered after a 15-minute observation period elapses.

This procedure was not followed here. The DMV Hearing Officer’s conclusion that

“[Petitioner] willfully refused to submit to a chemical analysis” is not supported by

the record evidence or the findings.


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                                    V. Conclusion

      Respondent has not shown the record evidence supports the conclusion, “[t]he

person willfully refused to submit to a chemical analysis,” set forth in N.C. Gen. Stat.

§ 20-16.2(d) for civil revocation of Petitioner's driver's license. The superior court’s

order reversing the DMV’s civil revocation of Petitioner’s license is affirmed. It is so

ordered.

      AFFIRMED.

      Chief Judge McGEE and Judge STROUD concur.




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