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

• Decision Date: 19 September 1989
• Docket Number: No. 69481,No. 3,69481,3
• Citation: 785 P.2d 332
• Parties: 1989 OK CIV APP 64 Willie James BURRIS, Appellant, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 332

785 P.2d 332

1989 OK CIV APP 64

Willie James BURRIS, Appellant, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 69481.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma,

Division No. 3.

Sept. 19, 1989.

Appeal from the District Court of Oklahoma County, Oklahoma; Clinton Dennis, Judge.

AFFIRMED.

Kent Eldridge, Oklahoma City, for appellant.

Blair Easley, Jr., Oklahoma City, for appellee.

MEMORANDUM OPINION

REYNOLDS, Judge:

Appellant contends the trial court erred in failing to reinstate his driver's license following its revocation by Appellee. The driver's license was revoked following Appellant's refusal of a blood test after he had passed a breath test.

Appellant contends that if a second test was permissible, he should have been re-advised of his rights under the implied consent statute, 47 O.S.Supp.1982 § 751. He further contends it was error not to restore his license since the State did not prove he was under the influence of intoxicants.

The implied consent to testing of the breath, blood, urine, or saliva for the presence of intoxicants as a condition on the right to operate a motor vehicle upon the public streets is given by motorists pursuant to 47 O.S.Supp.1982 § 751, which states, in pertinent part:

A. Any person who operates a motor vehicle upon the public roads, ... within this state shall be deemed to have given consent to a test or tests of such person's blood or breath, for the purpose of determining the alcohol concentration.... and such person's blood, saliva or urine for determining the presence and concentration of any other intoxicating substance ... if arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a motor vehicle upon the public roads ... while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance....

B. The law enforcement agency by which the arresting officer is employed may designate, ... whether blood or breath is to be tested for the alcohol concentration, and whether blood, saliva or urine is to be tested for the presence and concentration of any other intoxicating substance therein.... (Emphasis added.)

Similarly, 47 O.S.Supp.1985 § 753 states that licensing privileges shall be revoked when it is shown a driver or person in actual physical control of a vehicle "... refused to submit to the test or tests...." The same phrase, "... refused to submit to the test or tests ...," is used twice in 47 O.S.Supp.1986 § 754, which lists the issues which must be covered at a hearing after revocation of a license.

Statutes should be read so as to render every word and sentence operative rather than in a manner which would make a statutory provision nugatory. State ex rel. Thompson v. Ekberg, 613 P.2d 466, 467 (Okl.1980). It will not be presumed that the Legislature has done a vain and useless act in the way a statute is worded. In re Supreme Court Adjudication, etc., 597 P.2d 1208, 1210 (Okl.1979).

The statutes concerning implied consent to testing for intoxicants are part of a statutory framework, and their purpose must be kept in mind when interpreting the provisions of the statutes. The Oklahoma Supreme Court, commenting upon the license revocation procedures outlined in 47 O.S.Supp.1982 § 754, stated, in Price v. Reed, 725 P.2d 1254, 1260 (Okl.1986):

The state's interest here is to foster safety by temporarily removing from public throughfares those licensees who have exhibit dangerous or erratic behavior.

When read together, the statutes clearly contemplate that more than one test may be required. To construe the word "tests" to apply only to one State requested test and one driver requested test, as Appellant urges, would render portions of the statutory scheme nugatory and result in an absurdity. The State has a strong interest in preserving the safety of those travelling on public roadways. This interest is properly advanced by testing for the presence of intoxicants in drivers or operators arrested following a determination by a police officer that the person's behavior may constitute a hazard.

Ap...