Clawson v. State ex rel. Dps, No. 104,732.

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: Kenneth L. Buettner
• Citation: 168 P.3d 258,2007 OK CIV APP 89
• Decision Date: 17 August 2007
• Docket Number: No. 104,732.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
• Parties: Troy Timothy CLAWSON, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

168 P.3d 258 2007 OK CIV APP 89 Troy Timothy CLAWSON, Plaintiff/Appellee,
v.
STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. No. 104,732. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. Court of Civil Appeals of Oklahoma, Division No. 1. August 17, 2007.

[168 P.3d 259]

Appeal from the District Court of Cleveland County, Oklahoma; Honorable Tom A. Lucas,¹ Judge.

REVERSED

Blake Virgin, Dave Stockwell, Norman, OK, for Plaintiff/Appellee.

A. DeAnn Taylor, Oklahoma Department of Public Safety, Oklahoma City, OK, for Defendant/Appellant.

KENNETH L. BUETTNER, Judge.

¶ 1 Defendant/Appellant State of Oklahoma, ex rel. Department of Public Safety, (DPS) appeals from a Judgment setting aside DPS's revocation of Plaintiff/Appellee Troy Timothy Clawson's driver's license. The District Court's decision is erroneous as a matter of law and based on insufficient evidence. Clawson stipulated to the grounds for arrest and the validity of the test. Clawson failed to present a clear and cogent rebuttal of the arresting officer's sworn statement. DPS presented uncontroverted evidence of the statutory grounds for revocation. We reverse.

¶ 2 Clawson was arrested and cited for driving under the influence of alcohol. DPS issued a revocation of his driver's license pursuant to 47 O.S.Supp.2006 § 6-205. Pursuant to 47 O.S.Supp.2005 § 755 and § 6-211, Clawson appealed the revocation by filing his Petition in the District Court February 5, 2007. He asserted DPS wrongfully revoked his driver's license based on insufficient and wrongfully obtained evidence. Clawson posted a bond to stay the revocation and sought reinstatement of his driver's license.

¶ 3 At the District Court hearing, Clawson stipulated the officer had reasonable suspicion to stop him as well as probable cause for the arrest. Clawson also stipulated to the validity of the alcohol test. Clawson challenged the arresting officer's affidavit, admitted as DPS Exhibit 1, based on two scrivener's errors. Clawson did not challenge the portions of the affidavit which are computer-printed. The unchallenged parts of the affidavit show that the arrest occurred at 11:40 p.m. September 29, 2006 in Norman. The affidavit describes Clawson's driving and demeanor to support the officer's reasonable belief Clawson was driving under the influence of alcohol. Section 6 of the affidavit shows the pre-test deprivation period began

168 P.3d 260

at midnight and ended at 12:16 a.m. Clawson's blood alcohol level was .20g/210L at 12:17 a.m. and .19g/210L at 12:20 a.m. The legal limit is .08g/210L. The arresting officer signed the test results. The affidavit gave notice that the subject's driver's license was revoked if the test result was greater than .08g/210L.

¶ 4 The scrivener's errors are in Sections 4 and 5 of the affidavit. Section 4 provides a space for writing the date notice of revocation was served. The officer wrote "6/30/06" and signed his name and badge number. The error there was apparently a 6 instead of 9 for the month. The trial court found this error was irrelevant because Clawson timely sought an administrative hearing and clearly received the notice.

¶ 5 Section 5 is a space for notarization of the affidavit. The section is properly filled in except for the date is written as "29" September instead of "30" and there appears to be a "1" written under the "2" in "29." The notary testified that she started her shift at 11:00 p.m. on September 29, 2006, and must have not realized it was after midnight, and therefore September 30, when she notarized the affidavit. She testified the officer was standing in front of her when he signed the form on September 30, 2006. The arresting officer testified that the affidavit is printed by the blood alcohol testing, device and therefore it was impossible for it to have been printed or signed before September 30. He also testified he was standing in front of the notary when he signed the affidavit on September 30, 2006.

¶ 6 The trial court announced that DPS could not impeach its evidence with its own testimony. The court found that the affidavit was the best evidence and that DPS was bound by it. The trial court found the affidavit and notice of revocation was defective and set aside the revocation. DPS appeals the trial court's decision to set aside the revocation based on the incorrect date in the notary portion of the affidavit.

¶ 7 On appeal from orders of implied consent revocations, an appellate court will not reverse the district court's findings unless they are erroneous as a...