An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1091
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 4 March 2014


BILLY ALSTON THOMPSON,
     Petitioner-Appellee,

      v.                                        Halifax County
                                                No. 12 CVS 231
EUGENE A. CONTI, JR., SECRETARY
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION,
     Respondent-Appellant.


      Appeal by Respondent from judgment entered 27 August 2012

and   order   entered      23   July   2013     by   Judge   Alma      L.    Hinton   in

Superior Court, Halifax County.               Heard in the Court of Appeals 4

February 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carrie D. Randa, for Respondent-Appellant.

      Chichester Law Office, by Geoffrey P. Davis and Gilbert W.
      Chichester, for Petitioner-Appellee.


      McGEE, Judge.



      Billy    Alston      Thompson    (“Petitioner”)        filed      a    complaint

against    Eugene     A.    Conti,     Jr.,    Secretary     of     North     Carolina

Department     of   Transportation,           (“Respondent”)      on    28    February
                                           -2-
2012.   Petitioner alleged that he was arrested and charged with

driving while impaired on or about 6 August 2011.                            Petitioner

further alleged that “Respondent notified Petitioner that his

driving privilege would be suspended effective August 26, 2011,

until August 26, 2012, for refusing a chemical test[.]”

      Petitioner requested an administrative hearing before the

Division of Motor Vehicles (“DMV”), which was conducted on 2

February 2012.        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(e) (2013).                        The superior

court heard Petitioner’s petition on 21 August 2012 and reversed

the decision of the DMV.            Respondent appeals and argues that the

superior court erred in reversing the decision of the DMV.

                             I. Standard of Review

      “Questions of statutory interpretation of a provision of

the Motor Vehicle Laws of North Carolina are questions of law

and are reviewed de novo by this Court.”                      Hoots v. Robertson,

214   N.C.   App.    181,    183,    715    S.E.2d     199,     200   (2011).       “The

superior     court   review       shall    be    limited   to    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
                                    -3-
committed an error of law in revoking the license.”         Id.

                             II. Analysis

    This   appeal   arises   from    a    revocation   proceeding   under

N.C.G.S. § 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).1     N.C.G.S. § 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) (2009), 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 driver[’]s
           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 driver[’]s 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
1
  Although this Court in Steinkrause analyzed the 2005 version of
N.C.G.S. § 20-16.2, and that statute has been amended four times
since 2005, the portions of the statute relevant to this appeal
remain unchanged.
                                            -4-
                  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) (2009).2                    Subsection (3) of the

above statute is inapplicable to the present case because death

or critical injury to another person was not alleged in the

affidavit.

       The superior court in this case reversed the decision of

the DMV and concluded that: (1) “there is insufficient evidence

in     the    record       to   support     Respondent’s      findings   of   fact;”

(2) “Respondent’s conclusions of law are not therefore supported

by   Respondent’s          findings    of    fact;”    and    (3) “Respondent      did

commit       an    error   of   law   by    revoking   Petitioner’s      license    to

operate a motor vehicle pursuant to N.C.G.S. 20-16.2(d).”

       Respondent contends that there was adequate evidence in the

record to support the findings of fact in the DMV decision.                        DMV

made     the       following     findings     in   its       order   upholding     the

revocation of Petitioner’s driving privilege:

                  1. Trooper Davis was on routine patrol when
                  he received a call from Communications to
                  respond to an accident on State Road 1003
                  [n]ear Scotland Neck North Carolina Halifax
2
  Our General Assembly amended this statute in 2011.   See 2011
N.C. Sess. Laws ch. 119 § 1. The amendment “applies to offenses
committed on or after” 1 December 2011.   2011 N.C. Sess. Laws
ch. 119 § 3.    We apply the previous version of this statute
because the offense in the present case was committed on 6
August 2011.
                     -5-
County.

2. Trooper Davis found a truck overturned
upon his arrival several people standing
around and EMS on the scene.

3. Trooper Davis spoke with [P]etitioner and
was advised he was driving the vehicle.

4. [P]etitioner was out of the vehicle and
did not have on a shirt or any shoes, and
his clothes were very soiled.

5. Trooper Davis      also spoke with the
witnesses and EMS who advised him that []
Petitioner was the driver of the vehicle.

6. [P]etitioner refused to be transported to
the hospital.

7. Trooper Davis observed [P]etitioner had
red glassy eyes and a strong odor of alcohol
upon his breath and person.

8. [P]etitioner was very unsteady.

9. Trooper Davis asked [P]etitioner to
perform several Field Sobriety Tests and
[P]etitioner failed all tests.

10. Trooper Davis asked [P]etitioner what he
had to drink after smelling the strong odor
of alcohol on his breath and [P]etitioner
replied 1 drink and 1 mix drink.

11. Trooper Davis did not notice         any
disabilities about the customer.

12.   Trooper   Davis  received two  breath
samples from    the Alco Sensor which were
positive.

13. Trooper Davis arrested [P]etitioner and
transported  him  to   the  Halifax  County
Sheriff’s Department and charged him with
DWI.
                                       -6-


           14. The person was notified of his rights
           both orally and in writing.

           15. [P]etitioner did not sign            the   rights
           form because he was handcuffed.

           16. [P]etitioner had two witnesses present
           the entire time.

           17. [P]etitioner did not          wish   to    call   a
           witness or an attorney.

           18. [P]etitioner’s father tried to call an
           attorney.

           19. Trooper Davis set the Intox EC/IR II of
           one time and [P]etitioner refused to submit
           to any test after being told by his father
           not to submit who was present the entire
           time.

           20. [P]etitioner was not present and did not
           testify.

           21. The two witnesses were not present for
           this hearing.

      Petitioner counters that the “evidence as presented in the

record is at variance with that of the exhibits and the order

and   moreover,     with   the   testimony   actually     elicited   at   the

hearing, that the [DMV’s] findings of fact” are “necessarily not

supported.”

      The variance to which Petitioner refers is the name of the

law   enforcement    officer     who   testified   at   the   administrative

hearing in this case.        The DMV hearing transcript identifies a

“Trooper Tommy Davis” as a witness.          However, an exhibit titled
                                              -7-
“Intox EC/IR-II: Subject Test” lists a “Davis, Tare L.” as the

analyst’s     name.            Petitioner       alleges        that   a   document     titled

“Affidavit and Revocation Report” is signed by “Tare L Davis.”

We note that the document so titled in the record is illegible.

 A. Evidence That Petitioner Was Charged With An Implied-Consent
                             Offense

       As    to   the    first        requirement         in     N.C.G.S.       § 20-16.2(d),

Respondent        points       to    the   following        as    sufficient        evidence:

(1) testimony at the administrative hearing on 2 February 2012

that Petitioner was placed “under arrest for DWI[;]” and (2) a

law enforcement officer swore in an affidavit that Petitioner

was charged with an implied-consent offense.                              As noted above,

the    affidavit        in     the     record     is      illegible.            However,   the

testimony at the administrative hearing is sufficient evidence

that   Petitioner        was        charged   with     an      implied-consent       offense.

Petitioner’s argument is based solely on the discrepancies as to

the spelling of            a    law enforcement officer’s name.                      However,

N.C.G.S. § 20-16.2(d) contains no requirement that a particular

law enforcement officer be named or a provision to the effect

that    an    inconsistent            spelling       as     to    the     law     enforcement

officer’s name compels reversal.
                                              -8-
   B. Evidence That A Law Enforcement Officer Had Reasonable
 Grounds To Believe Petitioner Had Committed An Implied-Consent
                             Offense

       As   to   the     second      requirement,       Respondent     identifies      the

following testimony at the administrative hearing: (1) that upon

arrival, an officer saw “a truck that was totally destroyed” on

“the   right      hand    portion       of    the     road   between    road    and   the

ditch[;]” (2) that Petitioner was the only individual in the

wrecked vehicle; (3) that Petitioner admitted “he had wrecked

his truck[;]” (4) that Petitioner was dirty and bloody and had

no shoes or shirt on; (5) there was a “strong odor of alcoholic

beverage coming from his breath and person[;]” (6) Petitioner’s

eyes   were      red   and     glassy;       and    (7) Petitioner     failed   several

field sobriety tests.

       “[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.

       In Steinkrause, the petitioner was involved in a “severe

one car accident,” and there was an odor of alcohol about the
                                      -9-
petitioner.      Id. at 293, 689 S.E.2d at 382.              This Court held

that “the nature of [the] [p]etitioner’s car accident and the

smell of alcohol adequately support” the conclusion that the

petitioner was arrested based on reasonable grounds.                    Id. at

295, 689 S.E.2d at 383.

       The record in the present case contains more evidence than

in Steinkrause to support the conclusion that reasonable grounds

existed to charge Petitioner with an implied-consent offense.

Again, as above, Petitioner’s argument is based solely on the

discrepancies between different pieces of evidence as to the

spelling of a law enforcement officer’s name.                    However, the

statute    requires   only     that   a     law    enforcement   officer   have

reasonable grounds to believe that the person had committed an

implied-consent offense.        N.C.G.S. § 20-16.2(d)(2).          The record

shows that a law enforcement officer had reasonable grounds to

believe Petitioner had committed an implied-consent offense.

       C. Evidence That Petitioner Was Notified Of His Rights

       As to the fourth requirement, Respondent points to evidence

that   a   law   enforcement   officer      read    Petitioner   his   implied-

consent rights and supplied him with a copy and that a “copy of

the rights form was also included in the record.”                Discrepancies

as to the spelling of a law enforcement officer’s name have no
                                             -10-
bearing on whether Petitioner was notified of his rights.                               The

record shows that Petitioner was notified of his rights.

     D. Evidence That Petitioner Willfully Refused To Submit To A
                           Chemical Analysis

       As to the fifth requirement, Respondent highlights evidence

in the form of testimony at the hearing that Petitioner refused

to    submit    to    a   chemical       analysis.         The    record     shows      that

Petitioner did willfully refuse to submit to such an analysis.

Petitioner      does      not    argue      to    this    Court    that     he   did    not

willfully refuse to submit.

                                   III. Conclusion

       In conclusion, Respondent has shown that evidence supports

each of the applicable requirements set forth in N.C.G.S. § 20-

16.2(d) for civil revocation of Petitioner’s driver’s license

when Petitioner has willfully refused to submit to a chemical

analysis.      There is sufficient evidence in the record to support

the    findings      of   fact    by   the       DMV   relevant    to   N.C.G.S.       § 20-

16.2(d).        Thus,     the     superior        court   erred    in     reversing     the

decision of the DMV.             As a result, the superior court’s order is

reversed,      and    this      case   is    remanded     for     further    proceedings

consistent with this opinion.                    Because of our holding on this

issue, we need not address Respondent’s remaining argument.

       Reversed and remanded.

       Judges STEELMAN and ERVIN concur.
                         -11-
Report per Rule 30(e).
