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Administrative – DWI – Breathalyzer Refusal – License Revocation – Evidence – Hearsay – Witness’ Reliability

Holding: Regardless of the reliability of the witness who told a state trooper that petitioner had driven drunk, the trooper could consider the witness’ statement in his determination that he had a reasonable belief that petitioner had driven while impaired.

We reverse the superior court’s reversal of the revocation of petitioner’s driver’s license.

Background

Witness Beverly Titus told a state trooper that she had seen petitioner’s car swerve, hit a mailbox, and then park in the driveway of a house. Petitioner appeared intoxicated when she came out of the house, and an on-scene test indicated a blood alcohol content of .20.

After she was arrested for driving while impaired, petitioner failed to give sufficient breath samples, so the trooper marked her down as refusing to submit to a blood alcohol test. Her driver’s license was revoked, and she sought administrative review.

According to petitioner’s evidence, Titus had a grudge against her related to a prior romantic interest of petitioner’s; petitioner drove (sober) from work to a party at the house where the trooper found her car, and she consumed alcohol at the party; the mailboxes along the road near the party were not damaged; and the trooper acknowledged that he had no firsthand knowledge of whether Titus was reliable.

The Division of Motor Vehicles hearing officer upheld the revocation, but the superior court reversed the revocation of petitioner’s license.

Discussion

The only factual issue below was whether the trooper had any reasonable grounds to believe that petitioner was impaired when she drove from work to the party. In the trooper’s determination of whether he had reasonable grounds to believe petitioner had committed the offense of DWI, the trooper could consider the information provided by Titus. Our Supreme Court has held that the fact that a motorist has been drinking, when considered in connection with faulty driving or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. 20-138.

We conclude that the trooper’s personal observations, in conjunction with his interview of Titus, was sufficient to support the hearing officer’s finding and conclusion that the trooper had reasonable grounds to believe that petitioner had committed the offense of driving while impaired.

Petitioner has not identified any appellate cases, and our own review has not revealed any in which in the context of a review of a license revocation hearing, there was any analysis by the hearing officer, the superior court, or this court regarding the reliability of a witness who provided information that contributed to an officer’s belief that a petitioner had committed an implied consent offense.

In In re Gardner, 39 N.C. App. 567, 251 S.E.2d 723 (1979), the court said, “Probable cause ‘may be based upon information given to the officer by another, the source of such information being reasonably reliable.’” Although Gardner recites the “reasonably reliable” language from an earlier case, the opinion includes no discussion of any circumstances that might be pertinent to a finding that the witness was either disinterested or reliable.

The court in Melton v. Hodges, 114 N.C. App. 795, 443 S.E.2d 83 (1994), held that “the testimony in question was not hearsay because it was not offered to prove the truth of the matters asserted by [witnesses] Ms. Jewell and Ms. Boeddeker but instead was offered to show the basis for [Officer] Daniels’ belief that petitioner had been driving while impaired.” Under this analysis, the truth of the witness’s statements to a law enforcement officer is not at issue.

The analysis set forth in Melton raises the possibility that anyone who drives to a location before drinking alcohol could be charged with DWI, even if he was sober when he drove to the location where a law enforcement officer interviewed him, merely upon the word of a witness who might not have the petitioner’s best interests at heart. Nonetheless, we are bound by our holding in Melton.

Accordingly, we are constrained to hold that the trooper could consider the statement of Titus in his determination that he had a reasonable belief that petitioner had committed an implied consent offense and that, as a result, the trial court erred by reversing respondent’s decision to uphold the revocation of petitioner’s driver’s license.

Reversed.

Hopkins v. Thomas (Lawyers Weekly No. 012-018-18, 16 pp.) (Valerie Zachary, J.) Appealed from Pamlico County Superior Court (Benjamin Alford, J.) Kirby Smith III for petitioner; Kathryne Hathcock for respondent. N.C. App. Unpub.

 

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