In re Cottrell

• Court: Court of Appeals of North Carolina
• Decided: October 7, 2014
• Docket: 14-519
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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).