Lee v. Gore, 365 N.C. 227 (Aug. 26, 2011)

Affirming a divided decision below, Lee v. Gore, 206 N.C. App. 374 (Aug. 17, 2010), the court held that the Division of Motor Vehicles (DMV) may not revoke driving privileges for a willful refusal to submit to chemical analysis absent receipt of an affidavit swearing that the refusal was indeed willful. The court reasoned that because G.S. 20-16.2(d) requires that the DMV first receive a “properly executed affidavit” from law enforcement swearing to a willful refusal to submit to chemical analysis before revoking driving privileges, DMV lacked the authority to revoke the petitioner’s driving privileges. In this case, the officer swore out the DHHS 3907 affidavit and attached to that affidavit the DHHS 3908 chemical analysis result form indicating the test was “refused.” However, neither document indicated that the petitioner’s refusal to participate in chemical analysis was willful.