Pasut v. Robertson (Lawyers Weekly No. 14-16-1099, 22 pp.) (Martha Geer, J.) Appealed from Pitt County Superior Court (Gary Trawick, J.) N.C. App. Unpub.
Holding: A DMV hearing officer’s findings – that petitioner was speeding at 55 mph in a 45 mph zone, that he smelled of alcohol, and that his speech was slurred – are insufficient to show that a trooper had reasonable grounds to believe petitioner was appreciably impaired while driving.
The revocation of petitioner’s driver’s license is reversed. We remand for further findings of fact.
Copies of the trooper’s affidavit and revocation report, the chemical test rights form signed by petitioner, and the Intox EC/TR-II Test Ticket were not admitted into evidence during petitioner’s DMV hearing. Petitioner was not given the chance to object to and address the exhibits or to confront and cross-examine the trooper about the preparation, contents, accuracy, or execution of the exhibits; therefore, it was error for the hearing officer to consider the exhibits. We limit our review of the DMV’s decision to whether the trooper’s testimony – the only evidence properly admitted at the hearing – supports the hearing officer’s findings of fact and whether those findings support his conclusions of law.
Petitioner challenges the hearing officer’s conclusion that the trooper had reasonable grounds to believe that petitioner committed an implied consent offense. In the context of a license revocation hearing, the term “reasonable grounds” is treated the same as “probable cause.”
The consumption of alcohol, standing alone, does not render a person impaired. Nor does the fact that a motorist smells of alcohol by itself control the fact that a motorist has been drinking, when considered in connection with faulty driving such as following an irregular course on the highway or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. § 20-138.
Even though the evidence does not support the hearing officer’s finding that petitioner returned a positive result on an Alco-Sensor test, this is immaterial to our review. An Alco-Sensor test reveals only one thing: whether the subject has consumed alcohol. The trooper’s testimony regarding the odor of alcohol was sufficient to support a finding that petitioner had consumed alcohol.
We have not found any North Carolina opinion addressing whether an odor of alcohol combined with relatively modest speeding – traveling only 55 mph in a 45 mph zone – and slurred speech, without more, is sufficient to give an officer reasonable grounds to believe a motorist was driving while impaired. Here, the only indication of impairment, as opposed to mere consumption of alcohol, was the finding that petitioner had slurred speech. The finding that petitioner’s speech was slurred gives no indication whether this effect on defendant’s faculties was sufficient to render him appreciably impaired.
In the absence of evidence of any other manifestation of impairment, or information regarding the severity of the sole impairment recognized in the findings, we do not believe that the findings provide a sufficient basis for determining that the trooper had reasonable grounds to believe that petitioner was appreciably impaired while driving.
Even though the hearing officer made no further findings, the record contains evidence of supporting facts, which if found by the hearing officer, would in turn support the hearing officer’s conclusion that the trooper had reasonable grounds to believe that an implied-consent offense had occurred.
Accordingly, we reverse and remand to the trial court for further remand to the DMV for further findings of fact to resolve the question of whether petitioner was appreciably impaired. We leave it to the hearing officer’s discretion whether to resolve this conflict on the record or to take additional evidence.
Reversed and remanded.