Tobey v. State ex rel. Dept. of Public Safety,

Tobey v. State ex rel. Dept. of Public Safety,
1996 OK CIV APP 88
926 P.2d 803
67 OBJ 3581
Case Number: 87487
Decided: 07/12/1996

Jerry Lee TOBEY, Appellant,
v.
STATE of Oklahoma, ex ref., DEPARTMENT OF PUBLIC SAFETY, Appellee.

Affirmed.

Appeal from the District Court of Logan County, Oklahoma; Honorable Donald L. Worthington, Judge.

AFFIRMED.

Stephen G. Fabian, Jr., Fabian & Associates, Edmond, for Appellant.
Earl L. Reeves, Jr., Oklahoma Department of Public Safety, Oklahoma City, for Appellee.

MEMORANDUM OPINION

ADAMS, Vice Chief Judge

¶1 In one proceeding, Appellant Tobey asked the trial court to modify three orders issued by the Oklahoma Department of Public Safety (DPS) revoking his driver's license arising out of three different incidents.' At the hearing, Tobey presented evidence that he owns and operates a manufacturing business in Oklahoma City that employs approximately thirty-five people working in three shifts. Because Tobey lives in Crescent, Oklahoma, and the manufacturing operation is a "oneman show," he requested the revocations be modified to allow him to drive (1) to and ii from work seven days a week, (2) during the course of his employment in making sales calls as far away as Dallas, Texas, and (3) during the late night and early morning hours to go to the plant in the event of emergencies. The trial court granted a modification but limited it to allowing Tobey to drive between his home and work between 6:00 a.m. and 9:30 p.m., seven days a week.

¶2 In this appeal, Tobey argues the trial court was required to grant him permission to drive during "the course of his employment" because the uncontroverted evidence demonstrated that he had no other adequate means of transportation and that he needed to drive in order to make sales calls for the company, citing Cooper v. State of Oklahoma ex ref. Department of Public Safety, 917 P.2d 466 (Okla.1996). We find nothing in Cooper which requires reversal of the trial court's decision on the evidence presented.

¶3 The Cooper Court affirmed a trial court decision modifying a revocation to allow a pipefitter who had not worked in over a year to drive to job sites assigned by his local union. Rejecting a DPS argument that Cooper had to demonstrate present employment in order to request a modification, the Court concluded the trial judge did not abuse his discretion.

¶4 The statute under which the trial court has the authority to grant a modification, 47 O.S.Supp.1995 § 755(A), provides that the trial court "may modify the revocation ... in cases of extreme and unusual hardship when it is determined by the court that the person whose license or permit to drive has been revoked ... has no other adequate means of transportation." (Emphasis added). The Legislature has plainly committed the decision to grant modifications to the discretion of the trial court. Nothing in § 755 suggests a person whose driving privileges have been revoked is entitled to a modification upon making the appropriate showing.

¶5 Although Tobey claimed he could not arrange for one of his employees to drive in order for him to continue his activities, the trial court apparently found that contention unworthy of belief. Considering the evidence that Tobey owned and operated the business, it was not unreasonable for the trial court to conclude that, properly motivated, Tobey could arrange for alternate transportation during periods and for purposes not covered by the modification granted by the trial court. The trial court did not abuse its discretion in limiting the modification. The trial court's order is affirmed

¶6 AFFIRMED.

¶7 CARL B. JONES, P.J., and GARRETT, J., concur.