In an implied consent case in which a defendant is asked to submit to a chemical analysis, the law enforcement officer and chemical analyst (who often are the same person) complete an affidavit averring that the implied consent testing procedures have been followed and stating the results of the test or that the person willfully refused to submit to a chemical analysis. This affidavit, which also serves as a revocation report used in determining whether the defendant’s license will be civilly revoked pursuant to G.S. 20-16.5, typically is sworn and subscribed before the magistrate at the initial appearance. AOC-CVR-1A is the current form affidavit and revocation report. The form is designed to allow the chemical analyst to incorporate by reference the test record ticket from the breath-testing instrument, which indicates a refusal or a particular alcohol concentration. When a person refuses to submit to a chemical analysis, the law enforcement officer must immediately mail the affidavit to DMV. Upon receiving a “properly executed affidavit,” DMV must expeditiously notify the person charged that his or her license to drive is revoked for 12 months. Among the opinions issued this week by the North Carolina Court of Appeals was Lee v. Gore, a case in which the court held that DMV lacked jurisdiction to revoke the petitioner’s driver’s license when the officer failed to check the box on the form affidavit indicating that petitioner refused the chemical analysis. Richard Lee, a Florida resident and licensee was driving in Wilkes County on August 22, [...]
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