WYNN, Judge.
Petitioner Karen Steinkrause was arrested for driving while impaired (DWI) on 23 September 2006 based on evidence surrounding a severe one-car accident, including an officer's observation that she smelled of alcohol. Petitioner blew several times into the Intoxilyzer machine, but did not provide a sufficient breath sample; she claimed that injuries sustained during the accident made it too painful. We now affirm the trial court's determination that probable cause existed for Petitioner's arrest, and that Petitioner willfully refused to submit to a chemical analysis.
Petitioner's name is spelled Steinkraus in her brief but Steinkrause in the transcript, and judgment.
On 23 September 2006, Captain K.J. McCray of the North Carolina Highway Patrol was called to the scene of an accident off 1-40 in Wake County. Arriving at the scene of the accident, he met with Trooper Kenneth Ellerbe of the North Carolina Highway Patrol who had responded first. The officers found Petitioner Steinkrause's car upside down in a ditch next to an exit ramp, where it had come to rest after having rolled several times. Trooper Ellerbe requested that she submit to a portable breath test (PBT). Petitioner successfully provided one breath sample, and Trooper Ellerbe requested that she submit to another. Petitioner was unable to provide a second sample, claiming that injuries sustained during the accident made it too painful for her to blow into the device.
Petitioner provided a written statement for Trooper Ellerbe, that states in its entirety:
My left front tire looked flat. Couldn't find gas station with air upon leaving Raleigh. Was going to stop again to check air pressure. Having an argument on phone. Car swerved. Felt I could not regain control. Swerved onto inside lane and median, and car flipped. Zero loss of consciousness. Apparently superficial lacerations to left elbow area.
Captain McCray eventually took over the investigation. Trooper Ellerbe informed Captain McCray that he had smelled an odor of alcohol about Petitioner's person. Trooper Ellerbe also told Captain McCray the results of the first PBT, and that no result was obtained upon his second request. Captain McCray did not himself smell alcohol on Petitioner, but he noticed her clothes were dirty and she looked "sleepy." Based on "the collision, the damage of the vehicle and the testimony of the trooper that was there prior to [his] arrival," Captain McCray believed Petitioner had committed an implied consent offense and placed her under arrest for DWI. After her arrest, Petitioner admitted that she had been drinking prior to the accident.
Petitioner was taken to the City County Bureau of Identification, where she was requested to submit to a chemical analysis of her breath. Captain McCray, a certified chemical analyst, advised Petitioner of her rights, and Petitioner agreed to take the Intoxilyzer test. Captain McCray told Petitioner to blow steadily into the mouthpiece.
According to Captain McCray's testimony, Petitioner attempted to blow four times. Petitioner would blow a little bit, say that it hurt her neck, and then stop. Captain McCray testified that he believed Petitioner was physically able to provide a sample of her breath. He also testified that he did not observe anything that made him believe Petitioner was not making a valid attempt. Captain McCray registered Petitioner as a willful refusal at 6:17 p.m.
Petitioner was notified by the Division of Motor Vehicles ("DMV") that her driver's license was suspended for refusal to submit to a chemical analysis pursuant in N.C. Gen. Stat. § 20-16.2. Petitioner contested the revocation and requested a hearing. Petitioner was granted a hearing before the DMV on 8 December 2006. The DMV sustained the revocation of Petitioner's driver's license. Petitioner requested judicial review of the DMV's decision on 13 December 2006. The hearing was conducted during the 4 March 2008 Civil Session of the Superior Court in Wake County. The court affirmed the revocation of Petitioner's driver's license, entering judgment on 27 March 2008. This appeal followed.
On appeal to this Court, the trial court's Findings of Fact are conclusive 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). We review whether the trial court's Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008).
Petitioner argues on appeal that the trial court erred by (I) concluding as a matter of law that she was arrested based upon reasonable grounds, and (II) making Findings of Fact and concluding that she willfully refused to submit to a test of her breath.
I.
Petitioner first contends that the trial court erred in concluding as a matter of law that she was arrested based upon reasonable grounds. Because the totality of the circumstances supports a finding of probable cause, we disagree.
This appeal arises from a revocation proceeding under N.C. Gen. Stat. § 20-16.2 which authorizes a civil revocation of the driver's license when a driver has willfully refused to submit to a chemical analysis. That statute provides for a civil hearing at which the driver can contest the revocation of her driver's license. The hearing is limited to consideration of whether:
(1) The person was charged with an implied-consent offense or the driver had an alcohol concentration restriction on the drivers license pursuant to G.S. 20-19;
(2) The charging officer had reasonable grounds to believe that the person had committed an implied-consent offense or violated the alcohol concentration restriction on the drivers license;
(3) The implied-consent offense charged involved death or critical injury to another person, if this allegation is in the affidavit;
(4) The person was notified of the person's rights as required by subsection (a); and
(5) The person willfully refused to submit to a chemical analysis upon the request of the charging officer.
N.C. Gen. Stat. § 20-16.2(d)(2005).
A civil revocation hearing is not a criminal prosecution. This court has recognized that "[t]he administrative hearing referred to in N.C. Gen. Stat. § 20-16.2(d) . . . is in the nature of a civil proceeding." Gibson, 132 N.C. App. at 734, 515 S.E.2d at 455. Elsewhere, we have determined that "the quantum of proof necessary to establish probable cause to arrest in criminal driving while impaired cases and civil license revocation proceedings, notwithstanding the different burdens on the remaining elements, is virtually identical." Brower v. Killens, 122 N.C. App. 685, 690, 472 S.E.2d 33, 37 (1996), disc, review improvidently allowed, 345 N.C. 625, 481 S.E.2d 86 (1997). Thus, reasonable grounds in a civil revocation hearing means probable cause, and is to be determined based on the same criteria. See Rock v. Hiatt, 103 N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991).
A determination of probable cause depends on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 773 (2003). "To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide `whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Id. at 371, 157 L. Ed. 2d at 775 (quoting U.S. v. Ornelas, 517 U.S. 690, 696, 134 L. Ed. 2d 911, 919 (1996)). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 76 L. Ed. 2d 527, 552 n. 13 (1983).
Petitioner does not contest that there was sufficient evidence to support part of the trial court's Finding of Fact No. 3: that Petitioner was involved in a severe one car accident. Nor does Petitioner contest the sufficiency of the evidence regarding Finding of Fact No. 6: that Trooper Ellerbe conveyed to Trooper McCray that Petitioner had an odor of alcohol on or about her person. Petitioner argues, however, that these findings do not support the trial court's conclusion that Captain McCray had reasonable grounds to arrest Petitioner.
Regarding the smell of alcohol, an arresting officer is permitted to base his determination of reasonable grounds on information given by one known to him to be reasonably reliable. Melton v. Hodges, 114 N.C. App. 795, 798, 443 S.E.2d 83, 85 (1994).
In this case, an officer on the scene smelled an odor of alcohol about the Petitioner. That the arresting officer did not himself make the same observation does not diminish its weight, since a probable cause determination may be based upon the hearsay of a reliable witness. Id.; see also State v. Leonard, 87 N.C. App. 448, 454, 361 S.E.2d 397, 400 (1987) ("The direct personal observation by the officer/ affiant or his fellow officers is plainly a reliable basis for issuance of a warrant."), appeal dismissed and disc, review denied, 321 N.C. 746, 366 S.E.2d 867 (1988). The smell of alcohol could therefore contribute to the officer's determination of probable cause, and supports the trial court's determination that Petitioner was arrested based upon reasonable grounds.
The second factor supporting a determination of probable cause is the nature of the car accident itself. Petitioner is correct to assert that the car accident alone does not support a finding of probable cause. As this Court observed in State v. Hollingsworth, the surrounding evidence must also be considered:
Involvement in an automobile accident cannot be said
per se to provide probable cause sufficient to order a blood alcohol test, but defendant's involvement was due first to a miscalculation in judging the distance between his automobile and [another], then to an inability to prevent his high-speed crossing of the median. These circumstances, known to [the officer] before he ordered the blood drawn,
indicated an impairment of coordination. [The officer] also smelled the odor of alcohol from the crushed passenger side of defendant's Chevrolet.
State v. Hollingsworth, 77 N.C. App. 36, 44, 334 S.E.2d 463, 468 (1985) (emphasis added).
In this case, the record shows that Captain McCray observed the extensive damage to the vehicle at the scene of the accident and could have concluded that it resulted from the driver's inability to prevent her high-speed swerving off the road. The nature of this accident could indicate "an impairment of coordination" of the part of Petitioner. Id. Captain McCray was entitled to consider the severity and circumstances of the crash among the totality of the circumstances used to determine probable cause.
The facts of this case resemble Richardson v. Hiatt, in which that petitioner was also involved in a one-car accident. 95 N.C. App. 196, 381 S.E.2d 866, reh'g granted and modified on other grounds, 95 N.C. App. 780, 384 S.E.2d 62 (1989). The petitioner in that case lost control of his vehicle, it went off the road and ended up in a ditch. The accident happened "when driving conditions were excellent. It occurred on a clear day in the middle of the afternoon." Id. at 200, 381 S.E.2d at 868. Petitioner claimed that he fell asleep at the wheel. The only other evidence used to establish probable cause was the smell of alcohol. On appeal, this Court concluded that the officer had probable cause to arrest for DWI. "The evidence surrounding the accident and petitioner's reason for its occurrence, coupled with the strong odor of alcohol detected from him, gave [the officer] reasonable grounds to arrest petitioner for impaired driving." Id.
It is true that in this case, unlike Richardson, the trial court did not make any Findings of Fact regarding the driving conditions on the day of the crash. But probable cause to arrest requires only a fair probability of criminal activity; it does not require proof beyond a reasonable doubt, "it does not demand any showing that [the officer's] belief be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 513-14 (1983), see also Church v. Powell, 40 N.C. App. 254, 252 S.E.2d 229 (1979). It is the fact and severity of the one-car accident coupled with some indication of alcohol consumption on the part of the driver that is determinative of probable cause to arrest.
Accordingly, we hold that the nature of Petitioner's car accident and the smell of alcohol adequately support the trial court's Conclusion of Law that Petitioner was arrested based on reasonable grounds.
II
Petitioner next argues that the trial court erred in its Findings of Fact and Conclusions of Law with respect to Petitioner's willful refusal to submit to a test of her breath. Because there was competent evidence presented to the trial court that Petitioner willfully failed to follow the officer's instructions, we disagree.
Refusal has been defined by our Supreme Court as "the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey." Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 233, 182 S.E.2d 553, 558, reh'g denied, 279 N.C. 397, 183 S.E.2d 241 (1971) (quoting Black's Law Dictionary, 4th Ed.). Indeed, a "willful refusal" occurs whenever a driver:
(1) is aware that he has a choice to take or to refuse to take the test; (2) is aware of the time limit within which he must take the test; (3) voluntarily elects not to take the test; and (4) knowingly permits the prescribed thirty-minute time limit to expire before he elects to take the test.
Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980). "Obviously, one may refuse the test by inaction as well as by words."
Mathis v. North Carolina Div. of Motor Vehicles, 71 N.C. App. 413, 415, 322 S.E.2d 436, 438 (1984).
As the State points out in its brief, Petitioner has not assigned error to Findings of Fact Nos. 19 through 22, and these findings are therefore binding on appeal. Campbell, 188 N.C. App. 701, 656 S.E.2d 721, 724. These findings establish that Petitioner did not provide a valid breath sample to the Intoxilyzer instrument; on several attempts Petitioner stopped blowing after one second and did not provide a continuous sample of breath as instructed; and Petitioner was provided numerous opportunities to provide a valid sample.
Petitioner challenges Finding of Fact No. 23 that Trooper McCray did not observe any physical or medical conditions which would have precluded Petitioner from providing a valid sample of breath. Petitioner contends that the evidence was undisputed that Petitioner was suffering from injuries sustained in her car accident. Petitioner also challenges Finding of Fact No. 24 that Petitioner did not complain of a neck injury until she was at the Intoxilyzer room. Petitioner contends that the State's own evidence indicates that Petitioner complained of neck injury at the scene of the accident.
The essence of Petitioner's objection to Findings of Fact Nos. 23 and 24 is the contention that the trial court did not adequately appreciate Petitioner's injuries. Petitioner does not object to that part of Finding of Fact No. 24 in which the trial court recognized that Petitioner complained that her neck hurt, and that existing neck pains were worsened by the accident. Insofar as this finding is supported by competent evidence, Petitioner can not complain that the trial court did not appreciate her injuries. Captain McCray testified at the hearing that Petitioner appeared to be in good health. This is competent evidence to support Finding of Fact No. 23.
The evidence was contradictory with regard to when Petitioner first complained of the neck injury. Captain McCray testified at one point that Petitioner started complaining of her neck injury "[a]fter the fourth time [Petitioner attempted to blow] and thereafter;" but later he testified that he had not performed field sobriety tests earlier at the scene of the accident because Petitioner complained of her neck injury. As noted above, competent evidence does not mean uncontradicted evidence. Although the testimony was not entirely consistent, there was competent evidence to support Finding of Fact No. 24.
Petitioner also challenges Finding of Fact No. 25 that Trooper McCray would not have requested Petitioner to submit to a test of her breath had she been physically unable to do so. This Finding of Fact is supported by the following excerpt from the transcript:
Q: If a person is not physically able to provide a sample of — sample on an intoxilyzer instrument, are you going to mark them as a willful refusal?
[Captain McCray]: No, sir.
Q: Did you believe the Petitioner in this case was physically able to provide a sample?
[Captain McCray]: Yes, sir.
Finding of Fact No. 25 is supported by competent evidence.
Petitioner also challenges Finding of Fact No. 26 that Trooper McCray believed Petitioner was physically able to provide a sample of breath. Insofar as Petitioner objects to the admissibility of Captain McCray's belief, this issue was not preserved for appeal. Insofar as Petitioner objects to the Finding of Fact itself, this Finding of Fact is fully supported by the portion of the transcript excerpted above.
Finally, Petitioner challenges Finding of Fact No. 27 that Petitioner did not follow the instructions of Trooper McCray in providing a sample of her breath for chemical analysis. Petitioner concedes that she "ultimately did not provide a valid sample of her breath." Petitioner objects, however, "[t]o the extent that Finding of Fact No. 27 implies that the Petitioner was willfully not following the instructions of Trooper McCray. . . ." This argument is more appropriately directed at the trial court's Conclusions of Law, and is dealt with as such.
Petitioner's argument that the trial court erred in not making additional Findings of Fact is without merit. "It is immaterial that the evidence may support a finding not made by the superior court. Our review is limited to whether competent evidence supports the findings that were made." Ferguson v. Kittens, 129 N.C. App. 131, 135, 497 S.E.2d 722, 724, disc, review denied and appeal dismissed, 348 N.C. 496, 510 S.E.2d 383 (1998). See also Tolbert v. Hiatt, 95 N.C. App. 380, 385, 382 S.E.2d 453, 456 (1989) ("[T]he trial court need not recite every evidentiary fact presented at the hearing, but must only make specific findings on the ultimate facts established by the evidence that are determinative of the questions raised in the action and essential to support its conclusions.").
Petitioner's real objection concerns the trial court's Conclusion of Law that she willfully refused to submit to a test of her breath. Petitioner contends that "[e]ven if left undisturbed, the trial court's Findings of Fact Nos. 19 through 27 fail to adequately support the Conclusion of Law. . . ." Petitioner asserts that before the trial court could conclude that there was a willful refusal, it was required to find "a positive intention to disobey" the charging officer and "a voluntary decision to evade the test." Joyner, 279 N.C. at 233, 182 S.E.2d at 558. We note that the State's burden of proof in this civil action was to establish Petitioner's willful refusal by a preponderance of the evidence. Powers v. Tatum, ___ N.C. App. ___, ___, 676 S.E.2d 89, 93, disc, review denied, 363 N.C. 583, 681 S.E.2d 784 (2009).
The facts of this case are similar to those in Tedder v. Hodges, 119 N.C. App. 169, 457 S.E.2d 881 (1995). The Petitioner in that case was arrested for DWI and taken to a breathalyzer room where he agreed to submit to a chemical analysis. The chemical analyst observed the mandatory waiting period and then requested that Petitioner blow into the machine. "[P]etitioner blew into the machine five or six times, but he never blew long enough for a sufficient sample." Id. at 172, 457 S.E.2d at 883. The officer wrote Petitioner up as a refusal, and Petitioner's license was revoked pursuant to N.C. Gen. Stat. § 20-16.2. "Petitioner subsequently was treated at Forsyth Memorial Hospital for an injury to his nose and for chest congestion." Id.
Petitioner in Tedder petitioned the superior court for a hearing regarding the revocation of his driver's licence. Petitioner testified that "he could not blow into the machine long enough to provide an adequate sample because he had a history of bronchitis and had been in a fight earlier on the day he tried to blow into the machine." Id. The officer testified that "she could not tell if petitioner physically could not blow into the machine or if he was intentionally not blowing." Id. at 175, 457 S.E.2d at 885. On review, this Court held that the evidence showed petitioner's failure to follow the instructions of the breathalyzer operator. "Failure to follow the instructions of the breathalyzer operator is an adequate basis for the trial court to conclude that petitioner willfully refused to submit to a chemical analysis." Id. (citing Bell v. Powell, 41 N.C. App. 131, 135, 254 S.E.2d 191, 194 (1979)).
Petitioner in Tedder argued further that the trial court erred in its refusal to enter judgment on his behalf because the State failed to establish a willful refusal. Petitioner maintained that he attempted to provide an adequate breath sample but could not because of his bronchitis and an injured nose. Id.
While this evidence could have led the trial court to determine that Petitioner did not willfully refuse to blow into the breathalyzer machine, we conclude that there was still competent evidence to support the trial court's conclusion that petitioner willfully refused. When the trial judge is the trier of fact, "he has the duty to pass upon the credibility of the witnesses who testify. He decides what weight shall be given to the testimony and the reasonable inferences to be drawn there from. The appellate court cannot substitute itself for the trial judge in this task."
Id. at 176,
457 S.E.2d at 885 (quoting
General Specialities Co. v. Nello L. Teer Co., 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979)).
In the present case, Petitioner does not dispute Finding of Fact No. 20:
20. With the request to provide a valid sample of breath, the Petitioner placed the mouthpiece into her mouth and blew into the Intoxilyzer instrument for one second and stopped blowing. The Petitioner did not provide a continuous sample of breath as instructed by Trooper McCray.
Thus, Petitioner failed to follow the officer's instructions, and — nothing else appearing — the officer was justified in writing up Petitioner as a refusal. Bell v. Powell, 41 N.C. App. 131, 135, 254 S.E.2d 191, 194 (1979). Petitioner contends, however, that the trial court's Conclusion of Law is contrary to the uncontradicted evidence' indicating that she did not willfully refuse to submit to the test.
While there may be uncontradicted evidence that Petitioner was involved in a severe accident, and that she complained of a neck injury both at the scene and in the breathalyzer room, there is also evidence that Petitioner was not unable to comply with the officer's instructions. She provided a sample of her breath to Trooper Ellerbe when he asked her to submit to a PBT at the scene of the accident. Captain McCray did not observe any coughing, wheezing, or shortness of breath on the part of Petitioner. Finally, Captain McCray testified that he believed Petitioner was physically able to provide a valid sample to the Intoxilyzer.
While Petitioner's injuries were perhaps more recent than those of petitioner in Tedder, the issues raised by petitioners in both cases are the same. In both cases, petitioners agreed to submit to a test of their breath and failed to maintain sufficient pressure to provide a valid sample. In both cases, petitioners claimed that physical injuries not apparent to the chemical analyst made cooperation impossible. The argument in Tedder was perhaps more compelling since there is no evidence that the petitioner in that case had already provided one valid breath sample. See Tedder, 119 N.C. App. at 171, 457 S.E.2d at 883 (noting only that petitioner performed poorly on several roadside sobriety tests).
On the basis of Tedder, we hold that the trial judge in this case, who was in a better position to determine the credibility of the witnesses, did not err in concluding as a matter of law that Petitioner willfully refused to submit to a test of her breath. "[T]he trial court's conclusion of law regarding petitioner's willful refusal is supported by adequate findings and by competent evidence in the record." Tedder, 119 N.C. App. at 177, 457 S.E.2d at 886.
Affirmed.
Judge JACKSON concurs.
Judge HUNTER, Jr. dissents in a separate opinion.