CONTEST 30 DAY CVR

You need to contest the 30 day CVR under 20-16.5 (g) on AOC form: AOC-CVR-5, Rev. 8/07.  http://www.nccourts.org/Forms/Documents/199.pdf

You have ten days to file the petition, then the Court must hold the hearing within 5 days.  This should be scheduled with your Local 50B hearings Judge and it is NON-Criminal, and the DA has NO right to be heard.

Under G.S. 20-16.5 (b)(3): " The law enforcement officer and the chemical analyst comply with the procedures of G.S. 20‑16.2 and G.S. 20‑139.1 in requiring the person's submission to or procuring a chemical analysis" In you case they did not!  You must have two blows and a “reported” BAC on a test ticket. 

Under NCGS 16.2 the State must show a “valid” Chemical test which requires (inter alia) under NCGS 20-139.1 (b) (1) “It is performed in accordance with the rules of the Department of Health and Human Services.”  And also under NCGS 20-139.1 (b3): Sequential Breath Tests Required. –…“   In your case it was not in compliance with either. 

This is also the process (use of 16.5 and AOC-CVR-5) to use to object to the CVR to prevent the Disqualification of a CDL, pending a trial on the merits.

Caution:  You need to be specific in your “grounds” and most judges want your client there (even though it is Civil and you can appear for him/her) as the language in 16.5 (g) is poorly worded.  I have had Judges agree that I can appear for my client and others that use the language to try to kick the hearing if my client is not present.  I typically then make the Judge “properly notify" my client to be present since that language would be superfilous if not required.  But to be safe you should have you client present or ask the Judge ahead of time to waive him/her. 

 Here is 16.5 (g):        Hearing before Magistrate or Judge if Person Contests Validity of Revocation. – A person whose license is revoked under this section may request in writing a hearing to contest the validity of the revocation. The request may be made at the time of the person's initial appearance, or within 10 days of the effective date of the revocation to the clerk or a magistrate designated by the clerk, and may specifically request that the hearing be conducted by a district court judge. The Administrative Office of the Courts must develop a hearing request form for any person requesting a hearing. Unless a district court judge is requested, the hearing must be conducted within the county by a magistrate assigned by the chief district court judge to conduct such hearings. If the person requests that a district court judge hold the hearing, the hearing must be conducted within the district court district as defined in G.S. 7A‑133 by a district court judge assigned to conduct such hearings. The revocation remains in effect pending the hearing, but the hearing must be held within three working days following the request if the hearing is before a magistrate or within five working days if the hearing is before a district court judge. The request for the hearing must specify the grounds upon which the validity of the revocation is challenged and the hearing must be limited to the grounds specified in the request. A witness may submit his evidence by affidavit unless he is subpoenaed to appear. Any person who appears and testifies is subject to questioning by the judicial official conducting the hearing, and the judicial official may adjourn the hearing to seek additional evidence if he is not satisfied with the accuracy or completeness of evidence. The person contesting the validity of the revocation may, but is not required to, testify in his own behalfUnless contested by the person requesting the hearing, the judicial official may accept as true any matter stated in the revocation report. If any relevant condition under subsection (b) is contested, the judicial official must find by the greater weight of the evidence that the condition was met in order to sustain the revocation. At the conclusion of the hearing the judicial official must enter an order sustaining or rescinding the revocation. The judicial official's findings are without prejudice to the person contesting the revocation and to any other potential party as to any other proceedings, civil or criminal, that may involve facts bearing upon the conditions in subsection (b) considered by the judicial official. The decision of the judicial official is final and may not be appealed in the General Court of Justice. If the hearing is not held and completed within three working days of the written request for a hearing before a magistrate or within five working days of the written request for a hearing before a district court judge, the judicial official must enter an order rescinding the revocation, unless the person contesting the revocation contributed to the delay in completing the hearing. If the person requesting the hearing fails to appear at the hearing or any rescheduling thereof after having been properly notified, he forfeits his right to a hearing.