The N.C. Supreme Court has affirmed today an opinion from the N.C. Court of Appeals that the Division of Motor Vehicles cannot revoke a person’s driving privileges for “willful refusal to submit to chemical analysis” without receipt of an affidavit swearing that the refusal was willful.
In a 2007 Wilkesboro case, Richard James Lee refused to take a breath test after being stopped on suspicion of driving while impaired. But in the legal proceedings that followed, no one checked the proper box in the standard paperwork to indicate Lee’s refusal. Later, the form was altered to check the proper box. The Supreme Court agreed with the majority in a 2-1 Appeals Court decision that the failure to submit the properly completed form blocked the DMV from having the authority to revoke Lee’s driving privileges.
Writing for the court, Judge Patricia Timmons-Goodson noted the court’s concern about the paperwork in the case:
One aspect of this case is particularly disturbing. Specifically, the affidavit sworn to by the officer and sent to the DMV, which gave no indication that petitioner’s refusal was willful, was later altered to indicate otherwise. We are not called upon today to determine the outer boundaries of what constitutes “a properly executed affidavit” under section 20-16.2(d) so as to enable the DMV to revoke a license for willful refusal. Nevertheless, we are quite confident that an affidavit materially altered outside the presence of someone authorized to administer oaths, or an affidavit that omits entirely the material element of “willfulness,” is not “properly executed” for the purposes of section 20-16.2(d).
