An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-519
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


IN THE MATTER OF:

      DRIVING PRIVILEGE OF                    Lincoln County
      JASON GREGORY COTTRELL                  No. 13 CVS 25




      Appeal by petitioner from order entered 24 February 2014 by

Judge Timothy Kincaid in Lincoln County Superior Court.                        Heard

in the Court of Appeals 25 August 2014.


      David M. Black, for petitioner-appellant.

      Attorney General Roy Cooper, by Assistant Attorney General
      Christopher W. Brooks, for respondent-appellee.


      CALABRIA, Judge.


      Jason Gregory Cottrell (“Cottrell”) appeals from an order

affirming the decision of the North Carolina Department of Motor

Vehicles (“DMV”) to revoke his driver’s license.                 We affirm.

      On 30 December 2011, an off-duty law enforcement officer

called    911   and    reported    a   car    driving    erratically      on   N.C.

Highway 73.        The off-duty officer followed the car until it
                                          -2-
drove into the driveway of a house.                Subsequently, Deputy Milton

of    the    Lincoln    County      Sheriff’s    Department      (“Deputy      Milton”)

arrived at the house, where he encountered Cottrell.                              Deputy

Milton noticed Cottrell’s slurred speech and detected a strong

odor of alcohol coming from Cottrell.                Trooper Christopher Casey

(“Trooper Casey”) of the North Carolina State Highway Patrol

also    responded.          Trooper     Casey    observed       that    Cottrell      had

bloodshot eyes and slurred speech.                  In addition, Cottrell was

swaying and rocking back and forth.                  Cottrell          responded       to

Trooper Casey’s questions and corroborated the information the

off-duty officer reported.              Cottrell stated that he drove home

from a location that coincided with the route along which the

reporting off-duty officer had observed the erratic driving, and

that    he    had   not     consumed    any     alcohol    since       arriving   home.

Cottrell      refused     to   perform    any    standardized          field   sobriety

tests or to provide a sample of his breath.                     Trooper Casey then

arrested Cottrell for Driving While Intoxicated (“DWI”), read

him his rights pertaining to the Intoxilyzer test, and gave him

thirty-five minutes to call a witness.                    No witnesses responded,

and    Trooper      Casey    then    asked    Cottrell     to    breathe       into   the

Intoxilyzer.        Cottrell refused to do so.
                                      -3-
    The     DMV    subsequently    notified     Cottrell   that   due    to   his

refusal to cooperate with a chemical analysis of his breath, an

implied consent offense, his license would be suspended for one

year pursuant to N.C. Gen. Stat. § 20-16.2 (2013).                      Cottrell

requested    and    attended   a    DMV     administrative   hearing     on     17

December 2012 to challenge the civil suspension.                   During that

time Cottrell’s driver’s license suspension was placed on hold.

Cottrell did not testify or present any evidence at the hearing.

    The hearing officer issued a decision on 21 December 2012,

sustaining the revocation of Cottrell’s driving privilege.                     The

hearing officer made numerous findings of fact, including that

Trooper Casey had reasonable grounds to believe that an implied

consent   offense    had   been    committed,    and   concluded    that      “all

elements of proof necessary to rescind a revocation for refusing

to submit to a chemical analyst [sic] of his breath under GS 20-

16.2 are supported by substantial evidence.”

    On 8 January 2013, Cottrell filed a petition for judicial

review of the administrative decision and sought a temporary

restraining order against the DMV in Lincoln County Superior

Court.      The superior court granted the restraining order, and

held a hearing in which it reviewed the record and transcript

from the administrative hearing and heard arguments from both
                                                -4-
parties.           The        superior       court       affirmed           the    administrative

decision,      sustained             the     suspension          of     Cottrell’s         driver’s

license, and dissolved the temporary restraining order against

the   DMV.         Cottrell          filed    timely       notice       of    appeal      from    the

superior court’s order and obtained a stay from the superior

court pending the resolution of this appeal.

      Cottrell argues that the superior court erred in affirming

the   DMV’s     decision            because    the       DMV’s        findings      of    fact    and

conclusions of law were not supported by competent evidence.

      As an initial matter, we address the issue of the proper

standard of review applied in this appeal.                                   Cottrell contends

that this Court reviews the superior court’s order to determine

whether      the    court’s          findings       of    fact        are    supported      by    any

competent evidence, but reviewing de novo whether the court’s

conclusions        of        law    are    supported       by     its       findings      of   fact.

Steinkrause v. Tatum, 201 N.C. App. 289, 291-92, 689 S.E.2d 379,

381   (2009),      aff’d           per    curiam,    364       N.C.    419,       700    S.E.2d   222

(2010).       However, Steinkrause appealed from an order entered

affirming the revocation of her driver’s license as a result of

her September 2006 DWI.                   Id. at 290, 689 S.E.2d at 380.

      Effective          1    December       2006,       the    General       Assembly      amended

N.C. Gen. Stat. § 20-16.2(e) to change                                 the superior court’s
                                              -5-
standard      of    review      of     DMV    decisions       in     license       revocation

proceedings.         See 2006 N.C. Sess. Laws 253; N.C. Gen. Stat. §

20–16.2(e) (2013). The current version of the statute provides

that “[t]he 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 committed an error of law in revoking the license.”

N.C. Gen. Stat. § 20–16.2(e) (2013).                        This Court has held that

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

appellate      court,     and     no       longer    sits    as    the     trier    of   fact.

Johnson v. Robertson, ___ N.C. App. ___ , ___, 742 S.E.2d 603,

607 (2013).         On appeal from a DMV hearing, this Court reviews

the decision of the superior court under the following inquiry:

“(1)    determining          whether         the     trial        court     exercised      the

appropriate scope of review and, if appropriate, (2) deciding

whether the court did so properly.”                     Id. (citation and internal

quotations         omitted).           Therefore,      this       Court     will     consider

whether the superior court exercised the appropriate scope of

review, and, if appropriate, whether the court did so properly.

Id.
                                        -6-
      In the instant case, the record indicates that the superior

court    reviewed    the    record   and      the   transcript   of   the   DMV’s

administrative hearing and heard arguments from both parties.

In its order affirming the administrative decision, the court

specifically found:

            applying the review afforded by N.C.G.S. §
            20-16.2(e), there is sufficient evidence in
            the record to support the Findings of Fact
            of   the   Division’s  decision;  that   the
            Conclusions   of   Law  of   the  Division’s
            decision are supported by the Findings of
            Fact; and that the Division did not commit
            an error of law in revoking the Petitioner’s
            license to drive a motor vehicle.

The superior court’s order affirming the DMV’s decision cites

N.C. Gen. Stat. § 20-16.2(e) and states the proper standard,

indicating that it did not conduct a de novo review of the

facts.     Instead, the court reviewed the record to determine

whether   there     was    sufficient    evidence      to   support   the   DMV’s

findings of fact.

      After reviewing the record, we conclude that the superior

court correctly determined that there was sufficient evidence in

the   record   to   support    the   DMV’s      findings    of   fact,   and   the

conclusions of law are supported by the findings.                     Therefore,

the superior court exercised the appropriate scope of review and

properly applied it to review the DMV’s administrative decision.
                                   -7-
Accordingly,   we   affirm   the   superior   court’s   order   revoking

petitioner’s driver’s license.

    Affirmed.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
