Clarkson v. State ex rel. Dept. of Public Safety

• Decision Date: 08 March 1994
• Docket Number: No. 82812,No. 3,82812,3
• Citation: 872 P.2d 411,1994 OK CIV APP 39
• Parties: 1994 OK CIV APP 39 Binkley E. CLARKSON, Appellant, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Appellees. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 411

872 P.2d 411

1994 OK CIV APP 39

Binkley E. CLARKSON, Appellant, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Appellees.

No. 82812.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

March 8, 1994.

Appeal from the District Court of Oklahoma County, Russell Hall, Judge.

AFFIRMED.

M.E. Ferrell, Jr., Oklahoma City, for appellant.

Douglas R. Young, Oklahoma City, for appellees.

OPINION

GARRETT, Vice Chief Judge:

While driving in her personal car, an off-duty police officer noticed an automobile being driven erratically. Appellant, Binkley E. Clarkson, was the driver. The off-duty officer had no communication equipment in her personal car, other than a police radio. The off-duty officer used the police radio to call the dispatcher and request an officer in a marked police car to intercept Appellant's car. A uniformed officer in a marked police car overheard the off-duty officer's communication and proceeded to the indicated location.

With the off-duty officer still following, Appellant's car pulled into a residential driveway. Appellant got out of the car, but left it running. The car moved and hit a garage door at the end of the driveway, and rolled backwards into the street. At that point, the uniformed officer arrived and observed Appellant. He noticed Appellant's staggered gait, slurred speech and blood shot eyes. He also noticed the odor of alcoholic beverage on Appellant. The uniformed officer approached the off-duty officer and discussed her observations of Appellant's driving. These observations included: driving his car left of center; changing lanes without signaling; driving over a striped median on the highway to make a last minute exit; straddling lane lines; making a wide right turn; and, bumping three curbs. Appellant was then placed in the back of the police car and driven to the police station. At the police station, the arresting officer asked Appellant to take a breathalyzer test. Appellant first stated he wanted to speak to an attorney, then he refused the test.

Appellant's drivers' license was subsequently revoked in accordance with 47 O.S.1991 § 753. He requested a hearing before the State of Oklahoma ex rel. Department of Public Safety (DPS) to contest the revocation of his driving privileges. DPS upheld the revocation. Appellant appealed to the District Court. After a trial de novo, the District Court upheld the revocation. This appeal followed.

For reversal Appellant contends he was taken into custody under an illegal arrest and therefore DPS acquired no jurisdiction to revoke his drivers license. Specifically, Appellant asserts that since the arresting officer did not directly view any misdemeanor, he was unable to make an arrest in accordance with 22 O.S.1991 § 196. However, 47 O.S.1991 § 16-114 provides:

A police officer may, without a warrant, arrest a person for any moving traffic violation of which the arresting officer or another police officer in communication with the arresting officer has sensory or electronic perception including perception by radio, radar and reliable speed-measuring devices.

Section 16-114 requires the fellow officer to have (1) sensory perception, or (2) electronic perception, of a moving violation; and, the electronic perception specifically includes "radio, radar and reliable speed-measuring devices", but is not limited to the listed devices. "Sensory" perception obviously is different from "electronic" perception.

Here, the off-duty officer had sensory perception of Appellant's erratic driving. She observed ...