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DWI License Revocation Affidavit in North Carolina

If you are lawfully arrested for DWI in North Carolina, you have the right to refuse to submit to a Breathalyzer test. However, refusing to submit to a Breathalyzer comes with serious consequences, including a one year suspension of your driver’s license by the DMV. This suspension occurs when the law enforcement officer and chemical analyst sign an affidavit that you were charged with an implied consent offense and refused to submit to a Breathalyzer, and then the affidavit is sent to the DMV. But what happens if this affidavit is not properly executed? Can the DMV still revoke your driver’s license?

In North Carolina, when you apply for your driver’s license from the DMV, you give your implied consent to submit to breath and blood tests.  G.S. 20-16.2(a) provides that:

Any person who drives a vehicle on a highway or public vehicular area thereby gives consent to a chemical analysis if charged with an implied-consent offense. Any law enforcement officer who has reasonable grounds to believe that the person charged has committed the implied-consent offense may obtain a chemical analysis of the person.

G.S. 20-16.2(a)(1) defines an implied-consent offense as “an offense involving impaired driving, a violation of G.S. 20-141.4(a2), or an alcohol-related offense made subject to the procedures of this section. A person is “charged” with an offense if the person is arrested for it or if criminal process for the offense has been issued.”

If a person refuses to submit to a chemical analysis after being charged with an implied consent offense, North Carolina statute requires the law enforcement officer and chemical analysis to execute an affidavit with specific requirements. Under G.S. 20-16.2(c)(1)

Whenever a person refuses to submit to a chemical analysis, a person has an alcohol concentration of 0.15 or more, or a person's drivers license has an alcohol concentration restriction and the results of the chemical analysis establish a violation of the restriction, the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating that:

(1)    The person was charged with an implied-consent offense or had an alcohol concentration restriction on the drivers license;

(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)    Whether the implied-consent offense charged involved death or critical injury to another person, if the person willfully refused to submit to chemical analysis;

(4)    The person was notified of the rights in subsection (a); and

(5)    The results of any tests given or that the person willfully refused to submit to a chemical analysis.

G.S. 20-16.2(d) then authorizes the DMV to “expeditiously notify the person charged that the person's license to drive is revoked for 12 months” “[u]pon receipt of a properly executed affidavit required by subsection (c1).”

What if there is an error in the affidavit, such that it is not “properly executed”? Does the DMV still have the authority to revoke the person’s license? The North Carolina Supreme Court looked at this issue in the 2011 case, Lee v. Gore. In that case, the driver was arrested for DWI and taken to the intake center to undergo chemical analysis. Once at the intake center, the driver refused to take the Intoxilyzer test, even though the law enforcement officer warned the driver that such refusal would result in a one-year driver’s license revocation. However, when the law enforcement officer completed the affidavit, he did not check the box indicating willful refusal. The DMV proceeded to revoke the driver’s license anyway. The driver then contested the revocation at an administrative hearing. At the hearing, the revocation was deemed proper. The driver appealed the case to the superior court, which concluded that the DMV lacked the authority to revoke the license. On appeal, the Court of Appeals affirmed the superior court. The North Carolina Supreme Court then affirmed the Court of Appeals’ decision.

The Court held that the affidavit must be properly executed and must indicate a willful refusal. Without a properly executed affidavit, the DMV lacks the authority to revoke a driver’s license. The Court reasoned that requirements in both 20-16.2(c)(1) and 20-16.2(d) were not met. First, the affidavit was not executed as required by 20-16.1(c)(1).

N.C.G.S. § 20–16.2(c1) is clear and unambiguous. When a person refuses to submit to chemical analysis “the law enforcement officer and the chemical analyst shall without unnecessary delay go before an official authorized to administer oaths and execute an affidavit(s) stating ... [t]he results of any tests given or that the person willfully refused to submit to a chemical analysis.” N.C.G.S. § 20–16.2(c1). In the instant case the officer swore out the DHHS 3907 affidavit and attached to that affidavit the DHHS 3908 chemical analysis result form indicating the test was “refused.” Yet, neither document indicated that petitioner's refusal to participate in chemical analysis was willful. As such, the requirements of section 20–16.2(c1) have not been met.

Second, the DMV did not receive a “properly executed affidavit” as required by 20-16.2(d).

Additionally, the requirements of N.C.G.S. § 20–16.2(d) have not been satisfied. The plain language of subsection (d) requires that the DMV receive “a properly executed affidavit” meeting all the requirements set forth in N.C.G.S. § 20–16.2(c1) before the DMV is authorized to revoke a person's driving privileges under N.C.G.S. § 20–16.2. Here neither the DHHS 3907 affidavit submitted to the DMV, nor the attached DHHS 3908 form indicating a refusal, states that the refusal was willful. Consequently, the DMV lacked authorization to revoke petitioner's license.

Important to the Court’s decision was the fact that the DMV has “limited authority.” “The DMV is a division of the North Carolina Department of Transportation (“DOT”), which has been described by this Court as “‘an inanimate, artificial creature of statute [whose] ... form, shape and authority are defined by the Act by which it was created’ ” and which “ ‘is as powerless to exceed its authority as is a robot to act beyond the limitations imposed by its own mechanism.’””

Although the Court recognized the “the strong public policy favoring the removal of unsafe drivers from our roads,” instead of expanding the authority of the DMV, the DMV should have remedied the error “by simply inquiring of the officer whether the affidavit contained an omission” and, if so, requesting “that the officer swear out a new, properly executed affidavit.” Because the DMV did not have the authority to act, the revocation was improper and the Court of Appeals decision was affirmed.

If you have been charged with a DWI, visit www.rflaw.net to get legal help.

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