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Refusal and Collateral Estoppel

When a person refuses a breath test after being arrested for DWI in North Carolina, his driver’s license is automatically revoked for one year. The defendant can contest this revocation in an  administrative proceeding (separate from the criminal trial for impaired driving) with the DMV. G.S. 20-16.2(d) provides that the hearing is limited to the consideration of specific issues, which include whether the “person willfully refused to submit to a chemical analysis.”

The issue of refusal can also be relevant to a person’s criminal trial, so there is potential for overlap in the issues decided at the DMV hearing and the criminal trial. Because the issue of refusal can be subject to determination in two separate proceedings, the doctrine of collateral estoppel can be raised to stop a court from reconsidering the issue of refusal. North Carolina courts have held that sometimes the doctrine of collateral estoppel bars a court from reconsidering the issue of refusal, and sometimes it does not.

First, let’s look at the doctrine of collateral estoppel. The North Carolina Court of Appeals has explained that “[t]he doctrine of collateral estoppel provides that a party will be estopped from relitigating an issue where 1) the issue has been necessarily determined previously and 2) the parties to that prior action are identical to, or in privity with, the parties in the instant action.” (Brower v. Killens 1996) The North Carolina Supreme Court set out the requirements for the first condition as follows:

(1) the issues must be the same as those involved in the prior action, (2) the issues must have been raised and actually litigated in the prior action, (3) the issues must have been material and relevant to the disposition of the prior action, and (4) the determination of the issues in the prior action must have been necessary and essential to the resulting judgment.

State v. Summers (2000)

However, the second condition - privity - is the one that is more often at issue when deciding whether to apply the doctrine of collateral estoppel in a refusal case. The North Carolina Supreme Court in Summers noted that the term “privity” is difficult to define. Specifically, “[e]xcept in cases where the parties in each claim are identical, the meaning of "privity" for the purpose of collateral estoppel is somewhat elusive and there is no definition of the word "privity" which can be applied in all cases.” Generally,“privity involves a person so identified in interest with another that he represents the same legal right previously represented at trial.” The Court explained that it will not just look at names when determining privity. Instead, the Court will “consider the legal questions raised as they may affect the real party or parties in interest.”

In Summers, the issue was whether the State was collaterally estopped from relitigating the issue of refusal, which had been decided on appeal to the civil superior court from the DMV hearing. In the defendant’s appeal to the superior court from the DMV hearing, the Attorney General represented the State, while in the defendant’s criminal trial, the district attorney represented the State. The State argued that the district attorney and the Attorney General were not in privity.

The Court disagreed and concluded that “there can be no question that the district attorney and the Attorney General both represent the interests of the people of North Carolina, regardless of whether it be the district attorney in a criminal trial court or the Attorney General in a civil or criminal appeal.” The Court explained that

The State's "interest" in this case is not the consequence of the outcome of the civil appeal or criminal action, i.e., license revocation or criminal punishment. It is the common interest in protecting the citizens of North Carolina from drunk drivers which supports a finding of privity between the Attorney General and a district attorney in judicial actions involving the determination of whether there was a willful refusal to submit to an Intoxilyzer test.

However, the Court was careful to distinguish the appeal from the DMV hearing (heard in superior court) from the actual DMV hearing itself. It stated that

The instant case is not one... where the outcome of a civil administrative proceeding, in which the Attorney General did not participate, is being submitted as determinative in a judicial proceeding. To the contrary, this case is focused on a prior civil judicial determination of one specific issue, in which the Attorney General did participate, and how that prior determination impacts a judicial criminal prosecution involving that very same issue.

In making this distinguishment, the Court referenced Brower v. Killens (N.C. App. 1996), which was an appeal from a DMV hearing and decided whether the DMV was collaterally estopped from relitigating the issue of probable cause. In the defendant’s criminal proceedings, the trial court determined that there was insufficient probable cause to arrest the defendant for impaired driving and dismissed the proceedings. Although the court of appeals permitted the defendant to invoke the doctrine of collateral estoppel in the narrow situation of relitigating the probable cause determination, the court cautioned that generally, “the District Attorney has no role in the administrative proceeding and, therefore, is not fully protected therein.” Furthermore,

the same motor vehicle operation may give rise to two separate and distinct proceedings. One is a civil and administrative licensing procedure instituted by the Director of Motor Vehicles to determine whether a person's privilege to drive is revoked. The other is a criminal action instituted in the appropriate court to determine whether a crime has been committed. Each action proceeds independently of the other, and the outcome of one action is of no consequence to the other.

If you have been charged with DWI after a refusal and are facing a license revocation, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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