Attacking a willful refusal, specifically a license revocation for willful refusal, requires careful review of several legal issues. Under N.C.G.S. 20-16.2(d) there are effectively three issues to be decided by a DMV Hearing Officer at a license revocation hearing based on a willful refusal:
Reasonable Grounds?
Informed?
Willfully Refuse?
Did the arresting officer have reasonable grounds or probable cause for a DWI charge?
We have a post on attacking probable cause related to the charge of DWI, so I will not delve much into attacking probable cause here.
Definition:
Reasonable Grounds = Probable Cause
A hearing officer’s determination about whether reasonable grounds exists for an officer to believe that a DWI or another implied-consent offense had been committed is the same as determining if there was probable cause to find the same. State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971).
The most important thing to note is that if you have a good probable cause issue, it may be strategically more beneficial to argue the lack of probable cause issue in the criminal case in front of a district court judge then to litigate the lack of reasonable grounds to believe issue in front of a DMV hearing officer. If the judge finds that there was no probable cause to arrest for DWI, then the DMV Hearing officer is estopped from deciding whether Reasonable Grounds existed to believe the person had committed an implied consent offense. Brower v. Killens, 122 N.C. App. 685, 472 S.E.2d 33 (1996).
Did the chemical analyst inform the person charged of their implied consent rights?
Form:
Orally and in Writing
The Statute requires that a person be read the “Rights of a Person Requested to Submit to a Chemical Analysis” (DHHS Form 4081) by the officer acting as the chemical analyst and be provided a copy of the same in writing. N.C.G.S. 20-16.2(a); State v. Lovett, 119 N.C. App. 689 (1995).
Timing:
When Must the Rights be Read?
There are two important issues regarding the timing of advising a person of their rights related to chemical analysis. First a person must be charged with an implied consent offense. A person is “charged” if the person has been arrested for an implied consent offense or criminal process has been issued (e.g. citation, arrest warrant). N.C.G.S. 20-16.2(a1). This timeline is important specifically for a person suspected of DWI that is requested to give a blood sample at a hospital. The key question is has the person either been arrested for or charged with DWI before the chemical analyst requests the person to submit to a blood test.
The other issue in regards to timing is that this advisement must happen prior to each type of chemical testing. State v. Williams, 759 S.E.2d 350 (N.C. App. 2014). If an officer is advising a person of his implied consent rights prior to breath testing and then decides that an attempt at a consensual blood draw is necessary, the chemical analyst must re-advise the person charged of their implied consent rights both orally and in writing.
Waiver:
Statutory Waiver of Rights Advisement in the Case of an Unconscious Person
Although 20-16.2(b) allows for an unconscious persons blood to be drawn without a warrant and without the typically rights advisement for implied consent testing, the Court of Appeals has recently found this Statute to be unconstitutional. State v. Romano, 785 S.E.2d 168 (N.C. App. 2016); see also Missouri v. McNeely, 133 S. Ct. 1552 (2013). The Romano decision is currently awaiting review from the North Carolina Supreme Court.
Did the Person Willfully Refuse to Submit to a Chemical Analysis?
Definition:
Refusal
Refusal is defined as “the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey.” Joyner v. Garrett, 279 N.C. 226, 233, 182 S.E.2d 553, 558, rehearing denied, 279 N.C. 397, 183 S.E.2d 241 (1971), quoting Black’s Law Dictionary (4th Ed. 1951); Etheridge v. Peters, 45 N.C.App. 358, 263 S.E.2d 308 (1980), affirmed 301 N.C. 76, 269 S.E.2d 133 (1980). “Willful” is defined as “voluntary; intentional.” Black’s Law Dictionary 1434 (5th ed. 1979). The term “willful refusal” embraces “the concept of a conscious choice purposely made.” Joyner v. Garrett, supra at 233, 182 S.E.2d at 558. The evidence must show that Defendant was afforded all his rights as provided by N.C.G.S. 20-16.2(a), and that he “consciously and purposely” declined the request to take the test.
Requirements:
Elements of a Willful Refusal
A willful refusal occurs where a motorist:
- Is aware that he has a choice to take or refuse to take the test;
- Is aware of the time limit within which he must take the test;
- Voluntarily elects not to take the test, and;
- Knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.
Etheridge v. Peters, 269 S.E.2d 133 (N.C. 1980)
Burden of Proof:
Civil v. Criminal
According to Powers v. Tatum, 676 S.E.2d 89 (2009), the State must prove a willful refusal occurred:
- Criminal trial – beyond reasonable doubt
- DMV hearing – by a preponderance of the evidence
Id. (“Assuming arguendo the district court had found the State had failed to prove beyond a reasonable doubt that petitioner willfully refused to submit to the Intoxilyzer test to determine his blood alcohol content, the State would not have been precluded from attempting to prove the same by a preponderance of the evidence at a civil license revocation hearing.”)
Burden of Proof:
Whose Burden?
Under the statute, the respondent has the burden of proof to show that petitioner “willfully refused to submit to a chemical analysis.” Rock v. Hiatt, 103 N.C. App. 578, 580, 406 S.E.2d 638, 640 (1991) (quoting Joyner v. Garrett). It is important to hammer the burden of proof home to both a criminal district court judge and to the DMV hearing officer.
From my personal experience, it often feels that your client is expected to prove they have not refused, especially where you are arguing that your client did not have the lung capacity to blow on an intoxilyzer. If you client has a medical condition that can be presented to show that they would have difficulty with a breath test, that should be presented. However, constantly remind the judge or hearing officer that it is the State’s burden to prove willful refusal. Unless there is substantive evidence that your client was failing to follow instructions or was purposefully not blowing into the breath testing device, a judicial official should find that the State has not met its burden.
Doctrine:
Collateral estoppel
“Our appellate courts have allowed the doctrine of collateral estoppel to be applied when the same issue existed in a civil revocation proceeding and a separate criminal proceeding.” Powers v. Tatum, supra; see also State v. Summers, 351 N.C. 620 (2000).
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