Clark v. State ex rel. Dps

• Decision Date: 09 January 2007
• Docket Number: No. 101,831.,101,831.
• Citation: 153 P.3d 77,2007 OK CIV APP 12
• Parties: Bradley W. CLARK, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

153 P.3d 77

2007 OK CIV APP 12

Bradley W. CLARK, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

No. 101,831.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

January 9, 2007.

Appeal from the District Court of McClain County, Oklahoma; Honorable Noah H. Ewing, Trial Judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Michael Gardner, Law Offices of Joe Farnan, Purcell, OK, for Appellee.

J. Kevin Behrens, April Deann Taylor, Department of Public Safety, Oklahoma City, OK, for Appellant.

Opinion on Rehearing by JOHN F. REIF, Judge.

¶ 1 This appeal concerns the constitutionality of a highway checkpoint with the purpose of verifying drivers' licenses and insurance. On March 23, 2003, Bradley Clark was stopped at a roadblock-type checkpoint and subsequently arrested for driving under the influence of an intoxicating beverage. Upon the findings made at Mr. Clark's implied consent hearing, the Department of Public Service (DPS) revoked his license. A trial de novo was held in the District Court of McClain County where the trial court set aside the revocation of Mr. Clark's license. DPS appeals that order.

¶ 2 At some time prior to Mr. Clark's arrest, State Trooper John Clay Anderson had become aware that several people near the area of Purcell were driving without valid drivers' licenses. In response to this information, Trooper Anderson decided to set up a roadblock-type checkpoint for the purpose of verifying drivers' licenses and insurance. Before doing so, he obtained permission from his supervisor and enlisted the help of Purcell Police Officer Joseph Burnett. The checkpoint was set up at the intersection of State Highway 74 and U.S. 77, which Trooper Anderson considered to be the safest location because it was well lit. The record indicates that every vehicle was stopped and each driver was asked to produce a valid license and insurance verification. The checkpoint was active between the hours of 2:00 a.m. and 3:00 a.m., during which time the officers kept their emergency lights on, and each vehicle was released within two to three minutes if the driver's license and insurance were proper.

¶ 3 At approximately 2:20 a.m., Mr. Clark, who was 20 years old at the time, was stopped at the checkpoint. When Officer Burnett approached Mr. Clark's vehicle, the officer observed him to have bloodshot eyes, thick, slurred speech, and an odor of an intoxicating beverage from his breath and person. The officer could also see a can of beer spilling onto the passenger floorboard. Mr. Clark admitted to having consumed six beers, and when asked to get out of his vehicle, he walked from side to side and would sway forward and back while standing. Also, Mr. Clark was not able to produce a valid driver's license. Officer Burnett arrested Mr. Clark, informed him of Oklahoma's implied consent information, and administered a breath test, which resulted in a blood-alcohol level of 0.15 at 3:00 a.m. Pursuant to the arrest, DPS revoked Mr. Clark's driver's license.

¶ 4 At trial, over hearsay objection by Mr. Clark, the court allowed DPS to introduce into the record the "Log of Tests and Maintenance Record" for the breathalyzer used by Officer Burnett in administering the blood-alcohol test. Officer Burnett testified that he used the information contained in the log to verify that the breathalyzer machine had been properly maintained before administering the test. The log contained the name and permit number of the officer responsible for the maintenance of the breathalyzer, and it indicated the latest date when maintenance had been performed was February 25, 2003.

¶ 5 Once DPS presented its case, Mr. Clark demurred to the evidence, arguing that the revocation of his license should be set aside on two grounds. The first ground alleged the checkpoint was unconstitutional and the arrest or any evidence arising out of it was therefore invalid. The second ground alleged DPS failed to prove compliance with the Rules of the Board of Tests for Alcohol and Drug Influence, and therefore the results of the test administered to Mr. Clark were invalid. After hearing the evidence presented at trial, the trial court ruled for Mr. Clark on several grounds "set out in argument of . . . counsel — both as a matter of law and evidentiary discrepancies," and set aside the revocation of his driver's license.

¶ 6 On appeal, the crux of DPS's argument against setting aside the revocation of Mr. Clark's license is that the checkpoint was not unconstitutional, thus the arrest was valid, and the revocation of Mr. Clark's driver's license should therefore stand. In response, Mr. Clark contends that there are three grounds to consider the checkpoint in this case unconstitutional, under any of which his license should not be revoked. First, he argues the checkpoint was set up for an improper purpose under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Second, he argues the checkpoint fails all three tiers of the reasonableness test established in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), due to DPS's failure to demonstrate an adequate public interest and for lack of effectiveness in promoting that interest. Third, Mr. Clark contends that the checkpoint was invalid without the introduction of departmental guidelines. He further maintains that, even if the checkpoint was not unconstitutional, his license should not be revoked due to the failure of DPS to prove that the maintenance of the breathalyzer machine used to administer the blood-alcohol test was performed by a person possessing a valid permit under the Rules of the Board of Tests for Alcohol and Drug Influence. For the reasons that follow, we are unpersuaded by Mr. Clark's propositions and find merit to the propositions of DPS.

I.

¶ 7 As to the constitutionality of the checkpoint, Mr. Clark's first argument relies heavily on City of Indianapolis, under which he argues that the checkpoint cannot be constitutional when employed for an improper purpose. City of Indianapolis involved a police department's use of vehicle checkpoints for the primary purpose of interdicting illegal narcotics. The issue before the Court was whether the checkpoints violated the Fourth Amendment's guarantee against unreasonable seizures. Id. at 34, 121 S.Ct. at 450. The Court held that, because the primary purpose of the Indianapolis narcotics checkpoint program was "indistinguishable from the general interest in crime control," the checkpoints violated the Fourth Amendment. Id. at 48, 121 S.Ct. at 458.

¶ 8 In its reasoning, the Court noted that it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary wrongdoing, and each program that had been approved was "designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety." Id. at 41, 121 S.Ct. at 454.

¶ 9 In City of Indianapolis, the Court struck down the checkpoints because the program's primary purpose was to interdict illegal narcotics, which involved a general interest in crime control. In the present case, however, we are not dealing with a drug interdiction program, but with a checkpoint set up for the primary purpose of verifying that motorists possess valid licenses and registration — a purpose that can be accurately categorized as ensuring roadway safety. Accordingly, we find that DPS presented competent evidence that proved the officers set up a checkpoint whose primary purpose is distinct from the general interest in crime control. Thus, we find the checkpoint in this case was for a legitimate purpose under City of Indianapolis and does not violate the Fourth Amendment.

¶ 10 Second, Mr. Clark contends that the checkpoint in this case fails the well-established test for determining the reasonableness of a warrantless seizure articulated by the Court in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). In Brown, the Court's central concern was assuring that an individual's reasonable expectation of privacy is not subject to arbitrary invasion by law enforcement officers. 443 U.S. at 51, 99 S.Ct. at 2640. In striking a balance between the public interest and the individual's reasonable expectation of privacy, the Brown case provides that courts must weigh "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 50-51, 99 S.Ct. at 2640 (citation omitted).

¶ 11 In Michigan v. Sitz, 496 U.S. 444, 110 S.Ct. 2481 (1990), the Court applied the Brown test in upholding the constitutionality of a sobriety checkpoint program conducted by the Michigan State Police. In Sitz, the sole issue was whether the initial stop of each motorist and the associated questioning and observation by checkpoint officers violated the Fourth Amendment. 496 U.S. at 450-51, 110 S.Ct. at 2485. In striking a balance between the competing interests, the Court held that the Michigan sobriety checkpoint program was consistent with the Fourth Amendment. Id. at 455, 110 S.Ct. at 2488.

¶ 12 In that decision, the director of the Michigan State Police appointed a sobriety checkpoint advisory committee to create guidelines setting forth procedures governing checkpoint operations, site selection, and publicity. Under the guidelines, all vehicles passing through the checkpoint would be stopped and their drivers briefly examined for signs of intoxication. If the checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the flow of traffic where an officer would check the motorist's driver's license and car registration and, if warranted, the officer would conduct further sobriety tests. If...