STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 01 CPS 1517

|Kiffin Johnson |) | |

|Petitioner |)) | |

| |) | |

|vs. |))))|DECISION |

| | | |

|N. C. Department of Crime Control | | |

|and Public Safety | | |

|Respondent | | |

THIS MATTER came on to be heard before Administrative Law Judge Fred G. Morrison Jr. on 30 January 2002 and 19 February 2002 in Raleigh, North Carolina based on a Petition for Contested Case Hearing filed by Petitioner on 24 September 2001. Petitioner was present at the hearings and represented himself. The Respondent was present and represented by Donald K. Phillips, Assistant Attorney General.

ISSUE PRESENTED

Did the Commission properly deny the Petitioner’s claim for compensation based on the fact that the victim’s injuries were not the result of criminally injurious conduct as defined by N.C.G.S. § 15B-2(5)?

Based upon the testimony at the hearing and the whole record, the undersigned makes the following:

FINDINGS OF FACT

1. On 3 September 1999, at approximately 9:30 p.m., Kiffin Lee Johnson (Petitioner) was riding his motorcycle West near the intersection of Gannon Avenue and Arendell Avenue in Zebulon, North Carolina when a vehicle heading East, occupied by three males, turned in front of Petitioner and struck his motorcycle. Petitioner’s leg was crushed as a result of the collision.

2. Petitioner testified at the 30 January 2002 hearing.

3. Detective W. R. Smith, of the Zebulon Police Department was the first responding officer to the crash scene. Detective Smith investigated the wreck and was the charging officer in the criminal case. Detective Smith also testified at the 30 January 2002 hearing.

4. Jimmie John King testified at the 19 February 2002 hearing.

5. Donald Ray Dunn testified at the 19 February 2002 hearing.

6. Karl Virgil Abbe testified at the 19 February 2002 hearing.

7. Detective Smith has been a law enforcement officer for the past eighteen years.

8. Detective Smith stated that on 3 September 1999 he was on routine patrol in Zebulon when he received a call about a wreck in the intersection of Gannon and Arendell Avenues.

9. When Detective Smith arrived at the crash scene, he observed that an automobile (hereinafter Vehicle 1) and a motorcycle (hereinafter Vehicle 2) had been involved in a collision.

10. Detective Smith found that Clemente Tellez-Hernandez (hereinafter Driver 1) operated Vehicle 1 and that Petitioner operated Vehicle 2. There were two other occupants in Vehicle 1 and Driver 1 admitted to driving. Petitioner was the only occupant on his motorcycle (Vehicle 2).

11. Detective Smith observed no signs that Driver 1 was not the driver of Vehicle 1. There was no evidence or statements to the contrary. According to Detective Smith, all evidence pointed to Driver 1 being the operator of Vehicle 1.

12. Detective Smith found that Petitioner was the owner of Vehicle 2 and that someone else, other than Driver 1, owned Vehicle 1. Additionally, according to Detective Smith, Driver 1 and the owner of the Vehicle 1 had different addresses.

13. Petitioner had been traveling with his friend Jimmie John King, who was riding his motorcycle alongside Petitioner. Petitioner and King were coming from the Carolina Mudcats baseball game, which they had both attended.

14. Pursuant to his investigation of the collision, Detective Smith charged Driver 1 with N.C.G.S. § 20-154 Signals on Starting, Stopping or Turning(Failure to see before turning from a direct line that such movement could be made in safety (hereinafter unsafe movement violation) and N.C.G.S. § 20-7 Issuance and Renewal of Drivers Licenses—No Operators License (hereinafter NOL). Detective Smith did not charge Petitioner with any crime.

15. Detective Smith is familiar with the unsafe movement statute (N.C.G.S. § 20-154) and has charged it numerous times in his career. Contrary to Petitioner’s allegations, Detective Smith did not mistakenly charge unsafe movement and NOL instead of Driving While Impaired (hereinafter DWI). He said there was “no mix-up” in charges and Driver 1 received the appropriate charges of unsafe movement violation and NOL.

16. Detective Smith charged no one with Driving While Impaired (DWI) or any impaired driving offense as defined by N.C.G.S. § 20-4.01(24a). The offenses of N.C.G.S. § 20-154 and N.C.G.S. § 20-7 are not impaired driving offenses pursuant to N.C.G.S. § 20-4.01(24a).

17. Detective Smith is familiar with N.C.G.S.§ 20-166 (Duty to stop in event of accident or collision; furnishing information or assistance to injured person, etc.; persons assisting exempt from civil liability)(hereinafter hit and run). Detective Smith found no evidence of anyone violating N.C.G.S. § 20-166.

18. Petitioner was not a pedestrian, was not operating a vehicle powered or moved solely by human power, and was not operating a mobility impairment device as defined by 15B-2(5).

19. Detective Smith did not see any beer cans in Vehicle 1. Detective Smith also did not see any of the occupants in Vehicle 1 holding or possessing beer cans.

20. Detective Smith did not detect an odor of alcohol about the breath of Driver 1 or about his person, and after observing Driver 1, did not find him to be impaired.

21. After the collision, all of the occupants of Vehicle 1 walked to a nearby store. Detective Smith’s understanding was that the occupants of Vehicle 1 went to the store to call the police and report the wreck. Furthermore, Detective Smith did not have any trouble from the occupants of Vehicle 1. They were present at the scene and cooperated fully with his investigation.

22. Petitioner claimed, although provided no evidence to prove, that Driver 1 was impaired. Petitioner asserted that Driver 1 may have bought mouthwash at a nearby store to conceal potential alcohol on his breath. Detective Smith stated that based on his experience and training, even if a person buys and uses mouthwash, it does not mask impairment. Detective Smith’s experience is that impairment is demonstrated by many characteristics. Detective Smith found that Driver 1 displayed no characteristics of impairment or alcohol use. Detective Smith opined that if Driver 1 had rinsed his mouth or taken mouthwash, it would have been ineffectual. Alcohol emanates from the person as well as the breath and there are other characteristics that show impairment. Again, Detective Smith found no indications that Driver 1 had been drinking or was impaired.

23. While interviewing Petitioner and Petitioner’s friend, Jimmie John King, Detective Smith learned that while at the Mudcats game, Petitioner and King had consumed some beer.

24. Detective Smith did smell alcohol on Petitioner.

25. Petitioner was working at the Mudcats game earlier in the evening where he had a draft beer, took one sip, and then gave it away or threw it out.

26. Detective Smith observed no signs that Driver 1 was impaired. He did conclude that at least two other occupants in Vehicle 1 had been drinking. Detective Smith concluded that no one, including the two occupants of Vehicle 1, however, showed any indications of impairment.

27. Detective Smith did not smell alcohol on Driver 1. He gave Driver 1 psychophysical tests at the scene as well as observed him. Again, Detective Smith emphasized that based on his observations of Driver 1, he did not detect either use of alcohol or any signs of impairment. Thus, Detective Smith found no probable cause to charge anyone with DWI.

28. Petitioner asserted that at the wreck scene he told Detective Smith that Driver 1 had been drinking. Detective Smith does not remember Petitioner stating that. Smith noted that Petitioner was in a great deal of pain, had a severe injury to his leg, and was often unintelligible and unclear as a result.

29. While Petitioner did not know who was driving, he contends that he clearly saw the driver drink from a can with silver coloring, which he assumed was a Coors beer.

30. At the end of the hearing on 30 January 2002, Petitioner’s requested to bring several witnesses to a future hearing to establish that Driver 1 was impaired. He was allowed two weeks to find his witnesses and notify Respondent of availability for further proceedings.

31. Upon agreement of all parties, an additional hearing was conducted on 19 February 2002 to take testimony from three witnesses Petitioner had found.

32. First to testify for Petitioner at the 19 February 2002 hearing was Jimmie John King. King and Petitioner had been to the Carolina Mudcats game on 3 September 1999 and had helped take pictures of the stadium from a bucket truck. After the game, he and Petitioner were riding their Harley-Davidson motorcycles in Zebulon when they began to approach an intersection. King was in the right lane and Petitioner was in the left lane about one motorcycle length ahead. King and Petitioner had the green light and were gearing down their motorcycles. When King saw a car strike Petitioner, he (King) closed his eyes and “made it through” the intersection. After the collision, he went over to help Petitioner and noticed three males getting out of the vehicle that ran into Petitioner (Vehicle 1).

33. Petitioner said, “Watch him, that’s the driver.” King did keep an eye on the person Petitioner thought was the driver, but he did not personally see who was driving Vehicle 1 and did not see the man Petitioner told him to watch drink any alcohol or beer or anything. King saw an officer speak to the guy King was watching, but did not see the officer give him any “field sobriety tests”. King is not qualified to give sobriety tests, was not a law enforcement officer, and had no law enforcement training or experience.

34. Petitioner’s second witness was Donald Ray Dunn. Dunn, his wife and daughter, were in their pick-up truck at the intersection where the wreck occurred. Dunn saw Vehicle 1 run a red light and strike Petitioner. Dunn saw at least three males in the car that hit Petitioner. Petitioner was screaming, so Dunn went over to help him. Dunn never saw Driver 1 “turn up a can” of beer.

35. Dunn saw two of the occupants of Vehicle 1 take two brown grocery-type bags and disappear into the crowd of people who had gathered at the crash site. Dunn never saw them again that night, but the driver remained on the scene. In fact, the driver was walking around. When asked to describe the manner of Driver 1’s walking, Dunn replied that “he was walking normal to me.” Dunn also could not tell if Driver 1 had been drinking.

36. Petitioner’s final witness to testify at the 19 February 2002 hearing was Karl Virgil Abbe. Abbe was filling-up his Dodge Ram Charger pick-up truck at the Texaco station near the intersection where the wreck occurred. Abbe distinctly remembers seeing Vehicle 1 go by him and noticed the driver tip what appeared to be a Coors beer.

37. Abbe estimated that Vehicle 1 went by him at a speed of 25 to 30 miles per hour and was at least twenty feet away when it passed him. Abbe noticed Vehicle 1 traveling in the same direction in which his truck was pointing. This meant that Vehicle 1 was traveling away from him when he made his observation about Driver 1’s alcohol use. Abbe admitted that the occupants of Vehicle 1 had their backs to him when he observed them since they were heading away from him. Abbe is six feet tall and his pick-up truck is somewhere around six to six and one half feet tall.

38. Abbe was standing on the driver’s side of his truck filling it with gas when he noticed Vehicle 1 over the right front quarter panel of his truck. Abbe initially stated that he had a clear unobstructed view of Vehicle 1 and Driver 1. He related that he observed Vehicle 1 from the front of his truck. When asked again, however, Abbe admitted that he was standing at the rear portion near his gas tank and had to look through the cab of his truck to see Vehicle 1 go by. Abbe stated that he remembered that his windows to his truck were rolled up because he has air conditioning on his vehicle.

39. Abbe therefore admitted that, at a minimum, to observe Driver 1 drink the “beer” he had to look through two separate panes of glass and through his truck cab to see Vehicle 1, which was heading away from him some twenty feet away, traveling at 20 to 30 mph, and at 9:30 at night.

40. Abbe believes that he definitely saw Driver 1 tip a Coors-Lite beer. When asked to describe just what he observed about the “beer” from his vantage point, Abbe related that as Vehicle 1 passed he saw Driver 1’s hand wrapped around a standard can containing one or one and one half inch red letters and a picture of a waterfall. Abbe admitted that he never saw any liquid transfer from the “Coors-Lite” to Driver 1’s mouth.

41. According to Abbe, there were a “bunch” of cars going in the same direction as Vehicle 1, roughly fifteen. Abbe had “no clue” as to the description of other vehicles that had passed at or about the same time as Vehicle 1. Abbe also did not know how much gas he pumped that night, what he was wearing, or how much money he spent to fill his tank. Abbe stated that the police showed up at the collision scene about five to eight minutes after it had occurred.

42. Before the police arrived, Abbe noticed two males dump two brown paper bags in one of the gas station trashcans. Abbe went over to the trashcan and observed among the other refuse six to eight beer cans in the top of two paper bags. Abbe admitted that he did not know what the two men threw away, did not know for sure what was in the bags, and did not know whether or not the beer cans he observed in the trash were full or empty. Abbe also admitted that he had not checked the trashcan prior to seeing the two men throw the rubbish away and could not say for sure that the beer was not in the trash can before.

43. The closest Abbe got to Driver 1 after the wreck was three to four feet. The only alcohol he saw Driver 1 “drink” was the one Coors-Lite he saw in Driver 1’s hand as Driver 1 drove by the station. Abbe did not see Driver 1 or any of the passengers in Vehicle 1 drink anything after the wreck and never saw the passengers in Vehicle 1 drink anything.

44. Abbe knew Petitioner prior to the collision from attending a pig-pickin’ together in Wake County. Abbe admitted that he discussed this case with Petitioner about one week or so before the 19 February 2002 hearing date.

Based upon the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Petitioner bears the burden of showing that his injury was the result of criminally injurious conduct within the meaning of N.C.G.S. § 11B-2(5). Petitioner has failed to meet this burden by the greater weight of the evidence.

2. N.C. Gen. Stat. § 15B-2(5) provides that:

“[c]riminally injurious conduct” means conduct that by its nature poses a substantial threat of personal injury or death, and is punishable by fine or imprisonment or death, or would be so punishable but for the fact that the person engaging in the conduct lacked the capacity to commit the crime under the laws of this State. Criminally injurious conduct includes conduct that amounts to an offense involving impaired driving as defined in G.S. § 20-4.01(24a), and conduct that amounts to a violation of G.S. § 20-166 if the victim was a pedestrian or was operating a vehicle moved solely by human power or a mobility impairment device. For purposes of this Chapter, a mobility impairment device is a device that is designed for and intended to be used as a means of transportation for a person with a mobility impairment, is suitable for use both inside and outside a building, and whose maximum speed does not exceed 12 miles per hour when the device is being operated by a person with a mobility impairment. Criminally injurious conduct does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle when the conduct is punishable only as a violation of other provisions of Chapter 20 of the General Statutes. Criminally injurious conduct shall also include an act terrorism, as defined in 18 U.S.C. § 2331, that is committed outside of the United States against a citizen of this State. (emphasis added).

3. The Petitioner has failed to demonstrate by the greater weight of the evidence that the Commission exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, failed to act as required by law or rule, or otherwise substantially prejudiced his rights when it decided his case based on the information provided from law enforcement. Based on the information Detective Smith provided to the Commission, the Petitioner’s Claim for Compensation was properly denied based on N.C.G.S. § 15B-2(5).

4. Petitioner failed to show that his injuries were a result of either an impaired driving offense or a hit and run while he was a pedestrian or was operating a vehicle moved solely by human power or a mobility impairment device.

5. Petitioner was involved in a motor vehicle collision that resulted in his being seriously hurt. Petitioner’s injuries, however, were not the result of criminally injurious conduct as defined by N.C.G.S. § 15B-2(5). Thus, Petitioner is not subject to compensation from the North Carolina Crime Victims Compensation Commission. Therefore, the Commission properly followed the nondiscretionary provisions of N.C.G.S. § 15B-2(5) by denying Petitioner’s claim pursuant to this law and based on the factual information provided by Detective Smith.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

That the Commission’s decision to deny the Petitioner’s claim for crime victim’s compensation pursuant to N.C.G.S. § 15B-2(5) should be AFFIRMED.

ORDER

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, P. O. Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with N.C. Gen. Stat. § 150B-36.

NOTICE

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior Court of Wake County or in the superior court of the county where the person resides. The Petition for Judicial Review must be filed within (30) days after the person is served with a copy of the Final Decision. North Carolina General Statutes section 150B-46 describes the contents of the Petition and requires service of the Petition on all parties.

This the 14th day of March 2002.

________________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download