Appeal of Tucker
| Decision Date | 06 July 1973 |
| Citation | 538 P.2d 626,1975 OK CIV APP 40 |
| Parties | Appeal of Arlis William TUCKER of the Order Sustaining the Order of Revocation Dated |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Stephen G. Fabian, Jr., Associate Counsel, Dept. of Public Safety, Oklahoma City, for appellant Dept. of Public Safety.
Luttrell, Pendarvis & Rawlinson, Norman, for appellee Arlis William Tucker.
On June 23, 1973, appellee was arrested and charged with driving while under the influence of alcohol. The arresting officer requested that appellee submit to either a blood or breath test to determine the amount of appellee's blood alcohol content. Appellee refused to submit to either test. The Department of Public Safety (appellant) subsequently gave notice to appellee that his driver's license was to be revoked for a period of six months for refusing to submit to a blood alcohol test. Appellee requested a hearing before the Oklahoma Commissioner of Public Safety pursuant to 47 O.S.1971 § 754. 1 Pending the outcome of this hearing the revocation of appellee's license was stayed. The hearing resulted in a finding by the Commissioner of Public Safety that the original revocation order should be sustained. Appellee then appealed to the District Court of Cleveland County, Oklahoma, under 47 O.S.1971 § 755. 2 The cause was then tried De novo to the court which set aside the revocation order and reinstated appellee's license upon finding 'the officer did not have reasonable grounds to believe that the applicant (appellee) had been driving or was in actual physical control of a motor vehicle upon the public highway while under the influence of alcohol or intoxicating liquor.'
The Department of Public Safety is now appealing and urges as its sole proposition of error:
'The Court erred in finding that what the trooper observed was not sufficient to show that the appellee was driving a motor vehicle while under the influence of alcohol.'
In the district court, appellant argued and the journal entry reflected that the issue contested was whether the officer had reasonable grounds to believe appellee was under the influence. However, the issue to be tried was not whether the officer had reasonable grounds to believe that appellee was so driving, but should have been whether the evidence was sufficient to show appellee Was in fact driving while under the influence of alcohol. Section 754 limits the scope of the hearing to three issues: (a) whether the person had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of alcohol or intoxicating liquor; (b) whether the person was placed under arrest; and (c) whether he refused to submit to the test or tests. 3 Parts (b) and (c) are undisputed in the present case. Subsequent to the trial in the present case, the Oklahoma Supreme Court handed down Application of Baggett, Okl., 531 P.2d 1011 (1974) wherein the court rejected the argument that 'the reasonable belief of the officer' is the criterion for determining whether the license revocation should be rescinded or sustained. The court went on to point out that one of the issues to be tried (under § 754) shall be 'whether the person had been driving . . . while under the influence'
Where a trial court reaches the right result but for the wrong reason, that judgment will be affirmed. McDaniel v. McCauley, Okl., 371 P.2d 486 (1963). Inherent in the trial court's finding that the officer did not have reasonable grounds to believe appellee was driving while under the influence is a finding that the evidence was insufficient to prove appellee was in fact so driving. We will therefore affirm the judgment if the evidence is insufficient to show appellee was in fact driving under the influence.
To examine the evidence and decide the issue of whether appellee Was in fact driving a vehicle while under the influence requires an intimate look at the facts of the present case.
On June 23, 1973, appellee was driving his brother's car on Interstate Highway 35 from Purcell through Norman at about 9:20 p.m. Appellee noticed that the Oklahoma Highway Patrol had his brother's truck stopped off an I-35 exit near Norman. Appellee took the next exit and came back to the vicinity of where his brother's truck was stopped. Appellee parked on a service roadway adjacent to I-35 and walked 40 to 70 feet across a grassy median to where the patrolmen were parked. There were two patrol cars present and appellee's brother was in the lead car with a trooper. Appellee approached Officer West, the patrolman from the back-up patrol car and was told appellee's brother had been arrested. Appellee and Officer West talked for approximately 3 to 5 minutes about appellee driving his brother's truck on home to relieve the officers of the problem of having to deal with it. Officer West then went to the lead patrol car, talked with the other trooper, and both officers returned back to where appellee was waiting. The other officer inquired if appellee had had anything to drink recently. Appellee answered that he had just eaten a barbecue dinner in Purcell where he consumed three 12-ounce cans of beer. The lead officer then understated 'I don't believe you should have stopped.' Officer West then placed appellee under arrest for drunk driving and took him to jail. Appellee was read his Miranda rights and was informed of the substance of the Oklahoma implied consent license revocation provisions. Indignant that his original act of cooperation had turned sour, appellee refused to submit to a chemical test for blood alcohol content, whereupon he was placed in jail. At the jail Officer West was unable to make a camera function that was normally used to film DWI case suspects. Appellee says he performed the 'walk the line' test three times and passed each satisfactorily. Officer West also filled out a report at the jail, presumably noting the circumstances. 4
During the revocation hearing before the trial court, only appellee and Officer West testified. Officer West was asked:
'Okay, now, would you tell the Court exactly why or what you observed about Mr. Tucker that led you to believe that he was under the influence of alcohol.'
To which Officer West replied:
Appellee testified he had broken both his ankles about 'a year and a half ago' and had so advised Officer West while at the jail. He testified that he did not stumble when he walked from his car across the uneven grassy median to Officer...
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