I blogged here about the North Carolina Court of Appeals’ initial opinion in Lee v. Gore, ___ N.C. App. ___ (January 19, 2010), holding that DMV lacked authority to revoke the petitioner’s driving privileges for refusing a chemical analysis upon receipt of an affidavit that failed to allege a willful refusal. DMV filed a petition for rehearing, which the court granted. The court of appeals filed a superseding opinion in Lee v. Gore this week with the same holding. Judge Wynn dissented, however, securing for DMV an appeal of right to the state supreme court. The facts are discussed in some detail in the earlier post, so I won’t recount them again here. Upon rehearing, DMV argued that it could suspend a person’s driving privilege for refusing to submit to a chemical analysis and that there was no requirement that the refusal be willful. As support for its contention, DMV pointed to the statutorily prescribed notice of implied consent rights which require a chemical analyst to inform a defendant charged with an implied consent offense that his or her driver’s license will be revoked if he or she refuses a test. DMV further argued that G.S. 20-16.2(d), which affords a defendant the right to a hearing before DMV to contest a refusal-based revocation, was “a statutory embodiment of due process protections for persons accused of willfully refusing chemical analysis,” and that the absence of a properly executed affidavit did not prevent DMV from revoking a person’s driving privileges. The court rejected [...]
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