JIMMY RAY COLE,
Petitioner,
v
.
JANICE FAULKNER, COMMISSIONER, NORTH CAROLINA DIVISION OF MOTOR
VEHICLES,
Respondent.
Kirk, Kirk, Howell, Cutler & Thomas, L.L.P, by Joseph T.
Howell and Jeffrey M. Cutler, for petitioner-appellant.
Roy Cooper, Attorney General, by Jeffrey R. Edwards, Assistant
Attorney General, for the State.
THOMAS, Judge.
The trial court here affirmed an order of the Division of
Motor Vehicles (DMV) cancelling the conditional restoration of
driving privileges for petitioner, Jimmy Ray Cole. He now appeals
and for the reasons herein, we reverse.
Cole's driving privileges had been revoked due to convictions
for driving while impaired from 1973 to 1995. On 17 July 2000, a
hearing was held with the DMV conditionally restoring his
privileges pursuant to N.C. Gen. Stat. § 20-19(e).
As part of the conditional restoration agreement, Cole
consented to certain conditions, including that he not operate a
motor vehicle after consuming alcohol. Further, it was mandated
that Cole “[o]nly operate a vehicle properly equipped andmaintained with an Ignition Interlock device approved by the North
Carolina Department of Motor Vehicles.” The Ignition Interlock
device requires a driver to pass an alcohol test by blowing into
the device. The results are then recorded as logged events. If
the device recognizes alcohol through the breath test, the vehicle
is programmed not to start. Occasionally, an alcohol test will
also be required while the vehicle is running. Cole agreed that he
would not adjust or tamper with the ignition interlock device, and
that he would have monitoring checks performed on it every sixty
days.
On 11 April 2001, the DMV notified Cole to appear at a hearing
to determine whether he had violated any of the provisions of the
conditional restoration agreement. Evidence at the hearing showed
that Cole had registered alcohol readings three different times,
0.02 on 4 November 2000, 0.11 on 22 December 2000, and 0.082 on 11
January 2001. There was also evidence that shortly after these
readings, the device registered no alcohol level readings. The
November reading registered a “warn” attempt on the interlock
system. Only the two “fail” readings, December and January, were
the subject of inquiry at the hearing.
Cole testified that he had not consumed alcohol, but did have
a soft drink before the December reading and coffee before the
January reading. He said that his vehicle cranked on his third try
in December, after he had consumed a soft drink. He said he did
not know what was wrong with the device and subsequently went to
Monitech, which services it. Monitech technicians told Cole tomake sure he did not have anything in his mouth when he blew into
the device.
In January, Cole was again unable to start his vehicle due to
an alcohol reading of 0.082. He claimed only to have had
decaffeinated coffee. Cole returned to the coffee shop and called
Sergeant Jody Wall, a police officer with the Wendell Police
Department. Wall administered an alco-sensor test, which
registered 0.00. After the test, Wall and Cole walked to Cole's
vehicle, which immediately started on his next attempt. Cole then
took his vehicle back to Monitech for servicing. The ignition
interlock device tested within calibration standards.
Cole stated he was the only one to blow in the device on these
two dates. His vehicle is sometimes driven by his girlfriend and
an employee, who do not drink.
At the close of all the evidence, the DMV's hearing officer
determined there was sufficient evidence that Cole had violated the
terms of the agreement. The restoration of his license was
cancelled and the original permanent revocation of his driving
privileges was placed back into effect.
Cole petitioned for review by the trial court, which affirmed
the decision. It found the DMV did not act in an arbitrary and
capricious manner by cancelling Cole's conditional restoration of
his driving privileges.
By his first assignment of error, Cole contends the trial
court erred by reviewing the DMV's decision under a petition for
writ of certiorari. Instead, he argues the trial court should haveapplied de novo review. We disagree.
Where the trial court sits without a jury, this Court reviews
whether the competent evidence supports the trial court's findings,
and whether the findings in turn support the conclusions of law.
Meekins v. Box, __ N.C. App. __, __ S.E.2d __ (2002).
Section 20-25 of the North Carolina General Statutes, titled
“Right of appeal to court,” provides:
Any person denied a license or whose license has been
canceled, suspended or revoked by the Division, except
where such cancellation is mandatory under the provisions
of this Article, shall have a right to file a petition
within 30 days thereafter for a hearing in the matter in
the superior court of the county wherein such person
shall reside, or to the resident judge of the district or
judge holding the court of that district, or special or
emergency judge holding a court in such district in which
the violation was committed, and such court or judge is
hereby vested with jurisdiction and it shall be its or
his duty to set the matter for hearing upon 30 days'
written notice to the Division, and thereupon to take
testimony and examine into the facts of the case, and to
determine whether the petitioner is entitled to a license
or is subject to suspension, cancellation or revocation
of license under the provisions of this Article.
Provided, a judge of the district court shall have
limited jurisdiction under this section to sign and enter
a temporary restraining order only.
N.C. Gen. Stat. § 20-25 (2001) (emphasis added). Thus, a right to
de novo review in superior court exists where there is a
discretionary denial, cancellation, suspension, or revocation of a
driver's license by the DMV. See In re: Revocation of License of
Wright, 228 N.C. 301, 303, 45 S.E.2d 370 (1947), reh'g denied, 228
N.C. 584, 46 S.E.2d 696 (1948).
However, where the cancellation or revocation of the license
is mandatory, there is no right to appeal under section 20-25.
N.C. Gen. Stat. § 20-25; Penuel v. Hiatt, 100 N.C. App. 268, 268-69, 396 S.E.2d 85, 85-86 (1990).
Here, Cole's license was conditionally restored under N.C.
Gen. Stat. § 20-19(e). Pursuant to that section, Cole entered into
an agreement with the DMV. See id. (providing that the DMV may
place reasonable conditions or restrictions on the person for any
period up to three years from the date of restoration). Under the
agreement, “a violation of any term, restriction, or condition . .
. shall result in a termination of this restoration and the license
continues in the original state of revocation.” (Emphasis added).
Thus, once the DMV determined that a condition has been violated,
revocation was mandatory. Accordingly, section 20-25 does not
provide for review of this decision.
Although a superior court does not have authority to review
mandatory license revocations by the DMV, a petitioner may appeal
a permanent revocation of a driver's license pursuant to section
20-19(e) by petitioning for a writ of certiorari. Davis v. Hiatt,
326 N.C. 462, 390 S.E.2d 338 (1990). In Davis, the petitioner's
driving privileges were permanently revoked pursuant to N.C. Gen.
Stat. § 20-17(2), and, as here, N.C. Gen. Stat. § 20-19(e). In
holding that the revocation could be reviewed by the superior court
by writ of certiorari, the Davis Court stated:
It is well settled in this jurisdiction that certiorari
is the appropriate process to review the proceedings of
inferior courts and of bodies and officers exercising
judicial or quasi-judicial functions in cases where no
appeal is provided by law.
Davis, 326 N.C. at 465, 390 S.E.2d at 340, (quoting Russ v. Board
of Education of Brunswick County, 232 N.C. 128, 130, 59 S.E.2d 589,591 (1950)).
Therefore, the trial court did not err in reviewing the DMV's
decision by writ of certiorari and we overrule this assignment of
error.
Cole next argues that the trial court erred in affirming the
revocation of the conditional restoration of his driver's license.
Specifically, he argues that even when applying certiorari review,
the whole record is devoid of competent evidence to support the
DMV's decision. We agree.
When reviewing an appeal from a petition for writ of
certiorari in superior court, this Court's scope of review is two-
fold: (1) examine whether the superior court applied the
appropriate standard of review; and, if so, (2) determine whether
the superior court correctly applied the standard. ACT-UP Triangle
v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392
(1997) (citations omitted). Here, the superior court applied a
whole record review. Therefore, we must determine whether the
court properly did so.
Under the whole record test, the trial court reviews the
record de novo for errors of law to determine if competent,
material, and substantial evidence exists, based on the whole
record, to support the decision, and determines whether the
decision was arbitrary and capricious. Id. at 54-55, 557 S.E.2d at
634. Significantly, the whole record test requires the court to
consider both evidence justifying the agency's decision and
contrary evidence that could lead to a different result. In reAppeal by McCrary, 112 N.C. App. 161, 167-68, 435 S.E.2d 359, 364
(1993). However, the test does not allow the reviewing court to
replace the agency's judgment when there are two reasonably
conflicting views, although the court could have justifiably
reached a different result under de novo review. Id.
The record here shows that at the end of the non-compliance
hearing, the DMV stated the terms of the agreement had not been
met. After Cole's attorney inquired as to what terms were being
referred to, the DMV responded “alcohol is being used.” Thus, the
DMV based its revocation on the December and January alcohol
readings.
Cole, however, counters that the readings were erroneous
because the device malfunctioned. He states that he only consumed
a soft drink before the December reading and coffee before the
January reading. Cole emphasized the evidence establishing
subsequent readings taken shortly thereafter did not register any
alcohol. Specifically, he points to the affidavits from Danny and
Martha Jeffries, owners of Fleet Fuels, the service station where
the December reading occurred. Mr. Jeffries asserts that Cole's
second attempt to start his car was successful. Additional
evidence was presented showing that after the January reading, Cole
called the police and was administered an alco-sensor field test
that revealed a blood alcohol level of 0.00. Finally, according to
a technician employed by Monitech, Inc., the manufacturer of the
device, the readings were “consistent with fast-dissipating mouth
contaminants.” Accordingly, we hold that the record lacked substantial
evidence to support the conclusion that Cole had consumed alcohol
and thereafter operated a motor vehicle.
REVERSED.
Judges WALKER and MCGEE concur.
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