At the hearing held to decide whether petitioner’s driver’s license would be revoked, there was no attorney putting on the Division of Motor Vehicles’ case; in such cases, the hearing officer considers the evidence in the DMV file, issues subpoenas when necessary, and questions the driver and other witnesses. In the absence of any indication of bias on the part of the hearing officer, this procedure did not violate petitioner’s due process right to an impartial tribunal.
We reverse the superior court’s order, which overturned the revocation of petitioner’s driving privileges.
The superior court found that petitioner’s due process rights were violated because the hearing officer is a DMV employee and because she essentially acted, not only as fact-finder, but also as the prosecutor. Neither party cited, nor has our research uncovered a North Carolina case on point. We note, though, that the Fourth Circuit affirmed the decision of the Western District of North Carolina concluding that the hearing procedure prescribed in G.S. § 20-16.2 does not violate the driver’s due process rights. Montgomery v. N.C. Dep’t of Motor Vehicles, 455 F. Supp. 338 (W.D.N.C. 1978), aff’d, 599 F.2d 1048 (4th Cir. 1979).
We conclude that the fact that a hearing officer in a DMV hearing is a DMV employee does not violate a driver’s due process rights per se.
There is nothing to indicate that the DMV hearing officer had any special knowledge or connection to petitioner’s case that would indicate a lack of impartiality. There is nothing in the record for us to conclude that the DMV hearing officer acting in accordance with § 20-16.2 presents such a hazard of arbitrary decision making that it should be held violative of due process of law.
The lack of an attorney present DMV’s case and the hearing officer’s questioning of witnesses does not violate a driver’s due process rights where there is nothing to indicate that the hearing officer was doing anything more than attempting to elicit the truth. We have made similar holdings in commitment proceedings where the state is not represented by counsel.
It is not a per se constitutional violation for a trial court to exercise its right to call or question witnesses, even where the witness’ answer provides the sole proof of an element which needs to be proved. The fact that the hearing officer is a DMV employee and plays a role in drawing out the truth does not render that officer biased any more than a judge, who has the same employer as the prosecutor (the State of North Carolina), could be deemed biased for merely questioning witnesses.
Edwards v. Jessup (Lawyers Weekly No. 011-057-22, 8 pp.) (Chris Dillon, J.) Appealed from Union County Superior Court (Jeffery Carpenter, J.) Paul Tharp for petitioner; Christopher Brooks for respondent. 2022-NCCOA-157t