RALEIGH — Charges against Mount Airy resident Myra Combs of driving while impaired were dismissed after a judge ruled that the traffic stop in which she was arrested violated her constitutional rights. Even so, the Division of Motor Vehicles suspended her driver’s license, an action that in February was ruled as proper by the state’s second highest court.

The court’s decision rested on its interpretation that the “exclusionary rule” — which disallows evidence presented in a criminal case if police obtain it illegally — may not apply in civil actions such as revoking a driver’s license.

On Jan. 6, 2013, the Mount Airy Police Department received a call from a motorist describing a blue Ford Explorer that was weaving across the lanes of U.S. Highway 52 North. Officer David Grubbs went to intercept the vehicle. Spotting a matching Explorer, Grubbs and another officer followed the vehicle for some distance. They did not observe the driver of the Explorer being reckless. At most, the vehicle may have made a “slight cross of the center” line of a side street that had no painted center line. Grubbs continued to follow the vehicle until it pulled into a driveway. Only then did Grubbs initiate a traffic stop.

The driver was Combs. Her eyes were bloodshot, she smelled of alcohol, and she failed several field sobriety tests. Grubbs asked Combs to take a breath test on the spot but she refused. Grubbs then arrested her and took her to the police department building, where she again refused to take a breath test. Combs was charged with driving while impaired.

At trial, a district court judge determined that Grubbs lacked probable cause to pull Combs over, violating her Fourth Amendment rights against unreasonable search and seizure. He ordered all evidence obtained from the stop excluded. The state then dismissed the DWI case.

Administrative action

That did not end the matter. DMV notified Combs it was revoking her driving license based on her failure to submit to a breath test. Combs requested a hearing, arguing that the department couldn’t pull her license as the result of actions taking place during an unconstitutional traffic stop. A DMV hearing officer did not accept this line of reasoning, and on appeal a Superior Court judge ordered DMV to reinstate Combs’ license, citing the exclusionary rule. DMV then brought the matter before the N.C. Court of Appeals.

“DMV argues that the trial court erred in reversing the final agency decision because the agency record plainly contains sufficient evidence to support the findings of fact,” wrote Judge Dietz for the appeals court. “We agree.” The court upheld the one-year suspension of Combs’ license.

In an administrative action such as this, a Superior Court judge acts like an appellate court, determining whether there is sufficient evidence to support the factual determinations made by the agency and whether the conclusions of law reached are supported by those facts. In this case, Superior Court Judge Todd Burke simply held that there was “insufficient evidence in the record to support the Findings of Fact.”

The appeals court construed this to mean that because all evidence had been excluded from the traffic stop, Grubbs thus lacked cause to believe that Combs had refused a breath test.

“This argument is precluded by our case law,” wrote Dietz in reinstating Combs’ driving ban.

“This court has held that whether an officer had ‘reasonable and articulable suspicion for the initial stop is not an issue to be reviewed’ in a license revocation hearing.

“Thus, the exclusionary rule, which the district court applied in Combs’ criminal case, is inapplicable here. Indeed, this court repeatedly has rejected attempts to invoke the exclusionary rule in a license revocation proceeding.”

The Court of Appeals first held in the 1997 case of Quick v. N.C. Division of Motor Vehicles that “[w]hen determining whether revocation of petitioner’s license was proper, we are not concerned with the admissibility or suppression of evidence. The question of the legality of his arrest [is] simply not relevant to any issue presented in the hearing to determine whether [the respondent’s] license was properly revoked.”

Dietz noted that the issue has divided courts in other states. The highest courts in Connecticut, Kansas, Maine, Missouri, North Dakota, and Pennsylvania have held that the exclusionary rule should not apply in such circumstances while the top courts in Minnesota, Oregon, and Vermont reached the opposite conclusion.

“Our Supreme Court has not yet addressed this issue but, as explained above, this court has. Because one panel of this court cannot overturn another, if the application of the exclusionary rule to these civil proceedings warrants further consideration, it must be done in our Supreme Court,” he wrote.

The case is Combs v Robertson (14-709).

Michael Lowrey is an associate editor of Carolina Journal.