An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1186


Filed: 20 May 2003


         v.                             New Hanover County
                                     No. 02 CVS 760

    Appeal by petitioner from judgment entered 3 June 2002 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 5 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Bowen, Berry, Powers & Slaughter, PLLC, by Robert C. Slaughter, III, for petitioner appellant.

    McCULLOUGH, Judge.

    The North Carolina Department of Motor Vehicles (“DMV”) revoked petitioner's driver's license for a period of twelve months based on her willful refusal to submit to an Intoxilyzer 5000 chemical analysis after being charged with the implied consent offense of driving while impaired. See N.C. Gen. Stat. § 20-16.2 (2001). As was her right under N.C. Gen. Stat. § 20-16.2(e), petitioner sought a de novo hearing in superior court. At the outset of the hearing, the parties stipulated that the only issue in dispute was whether petitioner willfully refused to submit tothe chemical analysis. The trial court heard the evidence and arguments of the parties and upheld the DMV's decision. Petitioner appealed.
    Wilmington Police Officer Eddie Eubanks testified that he arrested petitioner for driving while impaired on the evening of 2 October 2001. Eubanks, who was a licensed chemical analyst, transported petitioner to the Law Enforcement Center and attempted to administer an Intoxilyzer 5000 test. He advised petitioner of her rights at 6:34 p.m. and asked her to submit a breath sample at 7:03 p.m. On her first attempt, petitioner gave a valid sample which registered a blood alcohol level of .19. When Eubanks asked her for the second sample, however, petitioner replied that “she didn't want to, she was unable to because she was going to be sick.” Petitioner told Eubanks that she felt as if she was going to throw up. However, although petitioner spat into a trash can, she never vomited. Petitioner did not place her mouth on the mouthpiece or attempt to give a second breath sample. According to Eubanks, if the second test was not performed within a two-minute period, the Intoxilyzer registers a “no test” and “you have to start over.” After unsuccessfully asking petitioner “several times” to provide a second breath sample, Eubanks recorded her refusal at 7:05 p.m.
    Petitioner testified that she was “very impaired” when Eubanks pulled her over. By the time she arrived at the Law Enforcement Center, she “was starting to get really, really sick from the alcohol and not eating.” Petitioner acknowledged successfullyperforming the initial Intoxilyzer test. When Eubanks asked for the second breath sample, however, petitioner attempted to comply but “started throwing up.” Rather than refusing to submit to the test, petitioner insisted she “was not physically able to blow into that machine[,]” because she “was throwing up so hard that [she] could not even catch [her] breath, much less blow into the thing.”
    In its judgment upholding the revocation of petitioner's driver's license under N.C. Gen. Stat. § 20-16.2(d), the trial court found that “[a]t the time petitioner was requested to submit the sequential breath sample, she was not vomiting. Petitioner never placed her mouth on the mouthpiece of the [I]ntoxilyzer to submit a second breath sample.” The trial court further found that “[p]etitioner willfully refused to submit to a chemical analysis upon the request of the charging officer.”
    The sole issue on appeal is whether the trial court erred in finding petitioner willfully refused to submit to a chemical analysis. Petitioner contends the evidence established that she was physically unable to perform the analysis, not that she refused to do so.
    The determination that a person willfully refused to submit to a chemical analysis under N.C. Gen. Stat. § 20-16.2(a)(3) is a finding of ultimate fact. Tolbert v. Hiatt, 95 N.C. App. 380, 385, 382 S.E.2d 453, 456 (1989). “Where the trial judge sits as the trier of fact, '[t]he court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulkner, 132 N.C. App. 728,732-33, 515 S.E.2d 452, 455 (1999) (quoting Gilbert Engineering Co. v. City of Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 858, disc. review denied, 314 N.C. 329, 333 S.E.2d 485 (1985)).
    We believe there is competent evidence to support the trial court's finding that petitioner willfully refused to submit to the Intoxilyzer test. Eubanks testified that defendant provided the first breath sample without difficulty, did not vomit at any time, and made no attempt to comply with his repeated requests for a second sample. By contrast, petitioner testified that she was unable to provide a second breath sample because she was vomiting so violently that she could not catch her breath. As finder of fact, the trial court was permitted to resolve this evidentiary conflict by crediting Eubanks' account and disbelieving petitioner's claim of physical incapacity. See Tedder v. Hodges, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885 (1995). Moreover, petitioner's failure to follow Eubanks' instructions to provide a sequential breath sample was sufficient to establish a willful refusal under N.C. Gen. Stat. § 20-16.2(a). See id. and N.C. Gen. Stat. § 20-139.1(b3) (2001) (providing that a “refusal to give the sequential breath samples necessary to constitute a valid chemical analysis is a refusal under G.S. 20-16.2(c).”).
    Petitioner claims no evidence supported the trial court's finding that she “indicated [to Eubanks] she would not submit a second sample.” She insists she told Eubanks only that she could not provide the sample, not that she would not. This argument is without merit. The evidence supports a finding that petitionerindicated her refusal by making no attempt to give a second breath sample despite Eubanks' repeated requests that she do so. “Obviously, one may refuse the test by inaction as well as by words.” Mathis v. Division of Motor Vehicles, 71 N.C. App. 413, 415, 322 S.E.2d 436, 438 (1984).
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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