Opinion
No. COA10-1512
Filed 21 June 2011 This case not for publication
Appeal by respondent from order entered 7 September 2010 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 7 June 2011.
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for Respondent-Appellant. Thomas Hicks Associates, PLLC, by Thomas S. Hicks, for Petitioner-Appellee.
New Hanover County File No. 09 CVS 5604.
Respondent Commissioner of Motor Vehicles appeals from an order rescinding the revocation of Petitioner Kelly Matthew Neilon's license to operate a motor vehicle in North Carolina. On appeal, the Commissioner contends that the charging officer had reasonable grounds to charge Mr. Neilon with having committed the implied-consent offense of driving while subject to an impairing substance and that the trial court erred by overturning the hearing officer's decision to that effect. After careful consideration of the Commissioner's challenge to the trial court's order in light of the record and the applicable law, we conclude that the charging officer had reasonable grounds for believing that Mr. Neilon committed an implied-consent offense, that the trial's order should be reversed, and that this case should be remanded to the trial court for further proceedings not inconsistent with this opinion.
I. Factual Background A. Substantive Facts
At 2:36 a.m. on 22 June 2009, Leland Police Officer Jonathan B. Hall arrived at the scene of a single-car wreck on a median at the intersection of Highway 17 and Village Road in Leland, North Carolina, in response to a call instructing him to investigate an accident that had occurred at that location. When he arrived at the scene of the accident, Officer Hall observed Mr. Neilon near the front bumper on the driver's side of the vehicle. At that point, Mr. Neilon started running. After Officer Hall ordered him to stop, Mr. Neilon slowed to a walk. According to Officer Hall, Mr. Neilon refused to answer most of Officer Hall's questions. However, Mr. Neilon admitted that no one else was present at the time of the wreck or at the location at which his vehicle was discovered by Officer Hall. Officer Hall did not observe anyone else at the scene either. Officer Hall confirmed that the wrecked vehicle was registered to Mr. Neilon. Based upon his observations of Mr. Neilon, Officer Hall concluded that Mr. Neilon was appreciably impaired and placed him under arrest after Mr. Neilon refused to participate in standardized field sobriety tests.
After taking Mr. Neilon into custody, Officer Hall transported him to the Brunswick County Law Enforcement Center, where Officer G.J. Rohauer, Jr., of the Boiling Spring Lakes Police Department requested Mr. Neilon to submit to a chemical analysis of his breath for the purpose of determining his blood-alcohol content. After accusing Officer Rohauer of being out of his jurisdiction, Mr. Neilon failed to submit to a chemical analysis despite being requested to breathe into the testing equipment on three separate occasions.
B. Procedural History
On 7 July 2009, the Commissioner notified Mr. Neilon that his license to operate a motor vehicle in North Carolina would be suspended for one year beginning on 17 July 2009 for refusing to submit to a chemical analysis. After receiving notice of the proposed revocation, Mr. Neilon requested that a preliminary hearing be held pursuant to N.C. Gen. Stat. § 20-16(d). The requested hearing was held before Hearing Officer J.B. Stewart on 8 October 2009. After hearing the testimony of Officers Hall and Rohauer and the arguments of counsel for Mr. Neilon, Hearing Officer Stewart made the following findings of fact:
1. On June 22, 2009, Officer J.B. Hall of the Leland Police Department was dispatched to a single vehicle crash. That the vehicle had [run] off the road and struck two small trees.
2. That Officer Hall observed [Mr. Neilon] near the front left bumper of the vehicle as he approached and [Mr. Neilon] started running away and [Officer Hall] ordered him to stop and no one else was in or around [the] vehicle.
3. That the vehicle was registered to [Mr. Neilon].
4. Officer Hall noted that [Mr. Neilon] had the strong odor of alcohol, red glassy eyes, slurred speech and was unsteady on his feet.
5. That [Mr. Neilon] refused to answer any questions asked by Officer Hall and he refused [a] field sobriety test.
6. Officer Hall placed [Mr. Neilon] under arrest and charged him with the implied[-]consent offense of Driving While Impaired and Resisting Arrest on June 22, 2009.
7. On June 22, 2009, Officer G.J. Rohauer, Jr., of the Boiling Spring Lakes Police Department as the chemical analyst informed [Mr. Neilon] of his rights in accordance with N.C. [Gen. Stat. §] 20-16.2(a) both orally and in writing at 3:42 [a.m]. That [Mr. Neilon] refused to sign [the] rights form.
8. That [Mr. Neilon] did attempt to contact a witness or attorney.
9. Officer Rohauer on June 22, 2009 at 4:22 [a.m.] requested [Mr. Neilon] to submit to a chemical analysis of his breath.
10. That [Mr. Neilon] verbally told Officer Rohauer that he was out of his jurisdiction and he could not give the test. That Officer Rohauer asked [Mr. Neilon] three times to submit to the test.
11. That Officer Rohauer on June 22, 2009 at 4:22 [a.m.] entered test refused.
12. That [Mr. Neilon] failed to follow the instructions of the Chemical Analyst.
13. That [Mr. Neilon] willfully refused to submit to chemical analysis upon request of the Chemical Analyst.
Based upon these findings of fact, Hearing Officer Stewart concluded as a matter of law that:
1. [Mr. Neilon] was charged with an implied-consent offense.
2. A law enforcement officer had reasonable grounds to believe that [Mr. Neilon] had committed an implied-consent offense.
3. [Mr. Neilon] was notified of [his] rights as required by N.C. [Gen. Stat. §] 20-16.2(a).
4. [Mr. Neilon] willfully refused to submit to a chemical analysis.
As a result, Hearing Officer Stewart sustained the Commissioner's decision to revoke Mr. Neilon's driver's license based upon his "refusal to submit to a chemical analysis[.]"
On 9 November 2009, Mr. Neilon filed a petition with the New Hanover County Superior Court seeking review of the revocation of his driver's license on the grounds that "the charging officer did not have probable cause to arrest [Mr. Neilon] or reasonable grounds to believe that [he] had committed an implied[-]consent" offense. In addition, Mr. Neilon sought and obtained the issuance of temporary and preliminary injunctive relief precluding the revocation of his privilege during the pendency of his challenge to the Commissioner's decision. On 23 December 2009, the Commissioner filed a response to Mr. Neilon's petition.
Although Mr. Neilon's review petition should have been filed in Brunswick County Superior Court rather than New Hanover County Superior Court, the trial court found that the location in which Mr. Neilon filed his petition involved a matter of venue rather than subject matter jurisdiction, so that, "despite the improper filing of this petition, this Court has subject matter jurisdiction over this matter." Neither party has challenged this determination at the appellate level.
After the Commissioner filed the administrative record with the trial court on 22 April 2010, a hearing concerning the issues raised by Mr. Neilon's petition was held before the trial court, sitting as a reviewing court, at the 7 June 2010 civil session of the New Hanover County Superior Court. On 7 September 2010, the trial court entered an order "find[ing] that there is insufficient evidence in the record to support the Conclusions of Law that `a law enforcement officer had reasonable grounds to believe that the person had committed an implied[-]consent offense'" and that, since the required reasonable grounds were not present, the Commission erred by revoking Mr. Neilon's driver's privilege. The Commissioner noted an appeal to this Court from the trial court's order.
II. Legal Analysis A. Standard of Review
The appropriate resolution of this case hinges upon a proper application of the standards enunciated in N.C. Gen. Stat. § 20-16.2(d), which provides, in pertinent part, that
The hearing . . . shall be limited to consideration of whether:
. . . .
(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;
. . . .
If the Division finds that the conditions specified in this subsection are met, it shall order the revocation sustained. If the Division finds that any of the conditions (1), (2), (4), or (5) is not met, it shall rescind the revocation. . . .
According to N.C. Gen. Stat. § 20-16.2(e), "[i]f the revocation for a willful refusal is sustained, the person whose license has been revoked has the right to file a petition in the superior court district . . . where the charges were made, within 30 days thereafter for a hearing on the record," with review in the Superior Court to 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." Id. Our review on appeal from a trial court order in a revocation proceeding is conducted utilizing the same standard of review employed at the Superior Court level. Hartman v. Robertson, ___ N.C. App. ___, ___, 703 S.E.2d 811, 813 (2010). As a result of the fact that no party has challenged the sufficiency of the evidence to support the trial court's findings of fact, Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (stating that, "[w]here no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal") (citation omitted), and the fact that the extent to which the hearing officer's findings of fact support its conclusions of law is subject to de novo review, Steinkrause v. Tatum, ___ N.C. App. ___, ___, 689 S.E.2d 379, 381 (2009) (internal citations omitted), aff'd, 364 N.C. 419, 700 S.E.2d 222 (2010), the ultimate issue posed by the Commissioner's appeal is whether the hearing officer's findings of fact support its conclusion of law that Officer Hall did not have "reasonable grounds to believe that [Mr. Neilon] had committed an implied consent offense. . . ." N.C. Gen. Stat. § 20-16.2(d)(2).
B. Reasonable Grounds
An individual commits the implied-consent offense of impaired driving when he or she "drives any vehicle upon any highway, any street, or any public vehicular area . . . while under the influence of an impairing substance." N.C. Gen. Stat. § 20-138.1(a)(1). An individual "drives" for purposes of N.C. Gen. Stat. § 20-138.1 when he or she is in "actual physical control of a vehicle which is in motion or which has the engine running." N.C. Gen. Stat. § 20-4.01(25).
"[R]easonable grounds in a civil revocation hearing means probable cause [to arrest], and is to be determined based on the same criteria." Steinkrause, ___ N.C. App. at ___, 689 S.E.2d at 381 (citing Rock v. Hiatt, 103 N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991)), aff'd, 364 N.C. 419, 700 S.E.2d 222 (2010). Probable cause to arrest exists when the available trustworthy information is "such that a prudent man would believe that the suspect had committed or was committing an offense." Moore v. Hodges, 116 N.C. App. 727, 729-30, 449 S.E.2d 218, 220 (1994); see also State v. Thomas, 127 N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997) (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971)). "[A]s the very name [probable cause] implies, we deal with probabilities, [not certainties.]" Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949). "[T]he degree of certainty necessary for probable cause is a fair probability, an amount of proof greater than reasonable suspicion but less than preponderance of the evidence, clear and convincing, or beyond a reasonable doubt." State v. Crawford, 125 N.C. App. 279, 282, 480 S.E.2d 422, 424 (1997). The extent to which a particular set of facts establishes the requisite probable cause "is determined by the practical and factual considerations of everyday life on which reasonable and prudent people act." Thomas, 127 N.C. App. at 433, 492 S.E.2d at 42 (citation omitted). As a result, our decision to uphold or reverse the trial court's order hinges upon whether the hearing officer's factual findings support its conclusion that a prudent person in Officer Hall's position would believe that Mr. Neilon, while in an impaired state, had "actual physical control" over "a vehicle which is in motion." N.C. Gen. Stat. § 20-4.01(25). We believe that the hearing officer's findings of fact compel the conclusion that Officer Hall had the necessary reasonable grounds for believing that Mr. Neilon had committed an implied consent offense.
According to Hearing Officer Stewart's undisputed factual findings, a vehicle titled to Mr. Neilon had run "off the road and struck two small trees." At the time that Officer Hall approached, he observed Mr. Neilon sitting near the front left bumper of the wrecked vehicle. No one else was in the vicinity of the vehicle at that time. As Officer Hall approached the wrecked vehicle, Mr. Neilon "started running away." State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 147 (1984) (attaching "particular significance" in the Court's probable cause analysis to the fact "that defendant fled within hours of the crime"). After obeying Officer Hall's order to stop, Mr. Neilon "had the strong smell of alcohol, red glassy eyes, [and] slurred speech" and "was unsteady on his feet." Mr. Neilon refused to answer Officer Hall's questions and "refused field sobriety test[s]." This evidence is clearly sufficient, contrary to the result reached in the trial court's order, to support a reasonable belief that Mr. Neilon had operated the wrecked vehicle while subject to an impairing substance.
In seeking to persuade us to reach a different conclusion, Mr. Neilon argues that all of the cases in which the necessary reasonable grounds has been found to exist involved "either an admission by the Defendant," Moore v. Hodges, 116 N.C. App. 727, 728, 449 S.E.2d 218, 219 (1994) (finding probable cause where the alleged driver admitted having run off the road and hit a culvert when she reached down to pick up a pen from the floor of the car); Richardson v. Hiatt, 95 N.C. App. 196, 200, 381 S.E.2d 866, 868 (finding probable cause where the alleged driver admitted having fallen asleep at the wheel), modified on rehearing on other grounds, 95 N.C. App. 780, 384 S.E.2d 62 (1989); "an observation of the Defendant in the driver's seat of the vehicle," Crawford, 125 N.C. App. at 282, 480 S.E.2d at 424 (finding probable cause where the investigating officer found the alleged driver behind the wheel of a parked car, which had a warm hood, in an intoxicated condition without any alcohol or any other person in the vehicle); or "a third party witness who could testify that the Defendant had been driving." In re Gardner, 39 N.C. App. 567, 570-71, 251 S.E.2d 723, 725 (1979) (finding probable cause where a witness informed the investigating officer that the alleged driver had driven a truck across a yellow line, forced a motorcyclist into a ditch, and entered a nearby driveway). According to Mr. Neilon, "[n]otably absent from the record is any evidence of when the accident took place, whether the keys to the vehicle were in Mr. Neilon's possession, whether the engine was running, whether the hood and the engine were hot, . . ., when any alcohol had been consumed in relation to the time that the accident occurred, or whether Mr. Neilon had even been in the vehicle." The fundamental problem with this argument, however, is that it focuses on what Officer Hall did not know rather than on the reasonable inferences that Officer Hall was entitled to draw from what he did know. As the hearing officer determined, Officer Hall was entitled to conclude, based on the information in his possession, that Mr. Neilon was clearly in an impaired condition. In addition, the fact that Mr. Neilon was the only person present at the time that Officer Hall approached, the fact that the vehicle in question was registered to Mr. Neilon, and the fact that Mr. Neilon fled at Officer Hall's approach would permit a prudent person to infer that Mr. Neilon had been operating the wrecked vehicle. Although additional evidence of the type described in Mr. Neilon's brief would have certainly bolstered the strength of Officer Hall's inference that Mr. Neilon was guilty of impaired driving, our cases do not require the presence of any specific set of circumstances in order to support a finding of reasonable grounds. Zuniga, 312 N.C. at 260-61, 322 S.E.2d at 146 (stating that, "[a]s in every case involving a determination of probable cause, it is upon the particular facts and circumstances, and the particular offense, that we must focus for resolution of the issue"). Simply put, the fact that the record did not contain evidence in addition to that discussed in the trial court's findings does not preclude a finding of reasonable cause. Since the hearing officer's findings of fact establish that Officer Hall had reasonable grounds to believe that Mr. Neilon had driven a vehicle while subject to an impairing substance, the Commissioner correctly determined that Mr. Neilon's license was subject to revocation and the trial court erred by reaching a contrary conclusion.
III. Conclusion
Thus, we conclude that the trial court erred by determining that Officer Hall lacked reasonable grounds to believe that Mr. Neilon had committed an implied-consent offense and that the Commissioner's decision to revoke his driver's license should be rescinded. As a result, the trial court's order is reversed and this case is remanded to the New Hanover County Superior Court for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Judges MCGEE and MCCULLOUGH concur.
Report per Rule 30(e).