WILSON v. DEPT. OF PUBLIC SAFETY

WILSON v. DEPT. OF PUBLIC SAFETY
2001 OK CIV APP 58
23 P.3d 306
72 OBJ 1570
Case Number: 95423
Decided: 03/30/2001
Mandate Issued: 05/03/2001
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

DAVID R. WILSON, Plaintiff/Appellee
v.
STATE OF OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant

APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA

HONORABLE NOAH EWING, JUDGE

REVERSED

Gary Barger, Pauls Valley, Oklahoma, for Plaintiff /Appellee
J. Robert Blakeburn, Department Of Public Safety, Oklahoma City, Oklahoma, for Defendant /Appellant.

BUETTNER, Judge

¶1 Upon trial de novo, the district court reversed the Department of Public Safety's (DPS) revocation of Wilson's drivers license. It specifically found that there was no evidence that Wilson was behind the wheel of the vehicle in which he was found seated before it became stuck in the mud; that Wilson's arrest for driving under the influence of alcohol was made despite no probable cause to arrest him for that charge; that DPS did not produce evidence of when Wilson consumed alcohol; and finally that the breath testing equipment was not given reference tests after replacing a tube. We find that the record does not support the trial court's order, and does support the order revoking Wilson's driver license. Consequently, we reverse.

¶2 The first time this case was appealed, the trial court had sustained Wilson's demurrer to DPS's evidence. In Wilson v. State of Oklahoma, ex rel. Department of Public Safety, 2000 OK CIV APP 28, 998 P.2d 1241, Division 4 held that the trial court erred in setting aside the revocation on the ground that the truck (1997 Chevy Suburban) was inoperable. It reversed and remanded the case for trial.

¶3 Authority for revocation of a driver's license is found at 47 O.S. Supp. 1999 §754 (C):

... if the arrested person is twenty-one (21) years of age or older, a blood or breath alcohol concentration of ten-hundredths (0.10) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by Section 6-205.1 [periods of revocation] of this title.

"Hearings [administrative revocation hearings] properly should address the issue of the officer's reasonable grounds to believe that a person was driving under the influence, not whether a person was, in fact, driving under the influence.... The same findings must be made by the district court pursuant to §754 as are made by the hearing examiner, even though the hearing before the district court is de novo." Smith v. State ex rel. Department of Public Safety, 1984 OK 16, [23 P.3d 308] 680 P.2d 365, 368. "This court will not reverse or disturb a finding of a lower court if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support its findings." Id.

¶4 The evidence consisted of the testimony of the two arresting officers and of Wilson, as well as the "Officer's Affidavit and Notice of Revocation," and the breathalyzer log and service report.

¶7 DPS also challenges the district court's finding that there was no probable cause to arrest Wilson for DUI because there was only evidence presented to support the actual physical control charge. For the purpose of driver's license revocation, the charges are equal in importance and allow a warrantless arrest when the officer has reasonable grounds to believe the person is driving under the influence of alcohol or in actual physical control of a vehicle. Wilson 1 has decided the issue that the officers made a valid probable cause arrest for actual physical control. It is not clear that the officers informed Wilson that he was being arrested for DUI, rather than APC, but assuming arguendo that was what happened, so long as there were reasonable grounds for the charge so that the warrantless arrest was valid, the officers are not capable of binding the prosecutor to a certain charge. Isom v. State, 1982 OK CR 78, 646 P.2d 1288, 1292.

¶8 The district court's third finding, that DPS failed to produce evidence showing when Plaintiff allegedly ingested alcohol, is irrelevant and meaningless. The evidence showed that Wilson was intoxicated at the time of his arrest, and at the time of his arrest, he was in actual physical control of an automobile that had been involved in an accident. There was also evidence from Wilson that he had not drunk any intoxicating beverages after getting stuck.

¶9 Finally, DPS contends that the finding by the district court that no reference tests were accomplished after the tube [23 P.3d 309] replacement was an improper sua sponte finding by the court, neither side having contested that issue. Even had the issue been raised, DPS claims that the procedure mandates reference tests only when the solution is changed, which had been performed. We agree with both of these contentions. The court's finding about the reference test without it having been placed at issue, deprived the parties of an opportunity to present evidence of the necessity (or lack of) for the reference test after the tube replacement. In any event, by taking judicial notice of The Rules of the Board of Tests for Alcohol and Drug Influence, OAC 40:30-1-2, we agree that the only reference testing required is when there is new solution placed in the machine.

¶11 GARRETT, J., concurs; HANSEN, C.J., concurs in result.

FOOTNOTES

1 The officers' testimony and the documents were introduced in the first trial. The evidence was incorporated into the second trial (after remand) in which Wilson also testified.

2 The log reveals that on September 27, 1998, the device was serviced and that the solution was changed with three reference tests run. On October 3, 1998, a sample hose was replaced.

3 A court may take judicial notice, whether requested or not, and may be taken at any stage of the proceeding. 12 O.S. 1991 §2202(C) and §2203(C).