Administrative – Driver’s License Revocation – Rules of Evidence — DWI – Breath Test Refusal

Johnson v. Robertson (Lawyers Weekly No. 13-07-0491, 12 pp.) (Sanford L. Steelman Jr., J.) Appealed from Wake County Superior Court (Shannon R. Joseph, J.) N.C. App.

Holding: Under N.C. R. Evid. 1101, the Rules of Evidence apply “to all actions and proceedings in the courts of this State” and if otherwise provided by statute. Rule 1101 further provides that the Rules of Evidence do not apply in certain proceedings, including preliminary questions of fact, grand jury proceedings, sentencing hearings, probation revocation hearings, and probable cause hearings. Petitioner has cited no other statute that otherwise provides for the application of the Rules of Evidence to hearings pursuant to G.S. § 20-16.2. After reviewing applicable statutes, we hold the Rules of Evidence do not apply to DMV hearings held pursuant to § 20-16.2.

We affirm the superior court’s order upholding revocation of petitioner’s driver’s license.

Even if the Rules applied, petitioner’s objection was to the admission of a police report and the affidavit and revocation report of Raleigh Police Officer R.T. Pereira, based on an allegedly insufficient foundation. However, the transcript of Officer Pereira’s testimony, which would have presumably laid the foundation for the admission of his reports, was inadvertently deleted and is not in the record.

In the absence of a complete record and petitioner’s failure to assert specific errors that were committed during the DMV hearing before the superior court, we presume a proper foundation was laid with respect to Officer Pereira’s police report and revocation report.

Affirmed.