Davie v. State ex rel. Dept. of Public Safety, 84663

• Decision Date: 16 May 1995
• Docket Number: No. 84663,No. 3,84663,3
• Citation: 1995 OK CIV APP 80,898 P.2d 180
• Parties: 1995 OK CIV APP 80 Kenneth P. DAVIE, III, Appellant, v. The 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 180

898 P.2d 180

1995 OK CIV APP 80

Kenneth P. DAVIE, III, Appellant, v. The STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 84663.

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

Court of Appeals of Oklahoma Division No. 3.

May 16, 1995.

Appeal from the District Court of Tulsa County; Russell P. Hass, Judge.

AFFIRMED.

Darlene Crutchfield, Tulsa, for appellant.

Cara Epps Clifton, Oklahoma City, for appellee.

OPINION

HUNTER, Judge:

Appellant, Kenneth P. Davie, III, seeks review of the trial court's order which sustained the implied consent revocation of Appellant's driver's license under 47 O.S.1991, § 751 et seq. On appeal, Appellant maintains Appellee, Department of Public Safety (DPS), failed to establish reasonable grounds for his arrest and that the arresting officer's testing procedures violated rules of the Board of Tests.

In reviewing the sufficiency of the evidence presented to the district court, we must first examine the evidentiary elements required to sustain the trial court's ruling. Smith v. State ex rel. Department of Public Safety, 680 P.2d 365 (Okla.1984). This Court will not reverse the trial court's findings if there is any competent evidence or any reasonable inference to be drawn therefrom, which tends to support its findings. Richards v. State ex rel. Department of Public Safety, 872 P.2d 957 (Okla.App.1994).

Preliminarily, we note Appellee's objection to materials attached to Appellant's brief which Appellee contends were not presented to the trial court. These materials are an affidavit and a portion of the district court transcript. The district court transcript was designated and included in the appellate record. We find nothing objectionable by Appellant's inclusion of a portion of same in his brief. As to the "affidavit", Appellant does not identify this document or the affiant and has not shown that such document was presented to the trial court. Appellee contends it is a "probable cause affidavit" and was not submitted to the trial court. Our review of the trial transcript shows Appellee submitted two "officer's affidavits" to the trial court but Appellee subsequently "withdrew" these from the record. There is nothing before us to indicate the trial court considered the affidavit attached to Appellant's brief and it therefore will not be considered by this Court in the disposition of this appeal. Hart v. McVay, 832 P.2d 822, 825 (Okla.1992).

Regarding his arrest, Appellant argues the arresting officer had no probable cause to stop his vehicle and also that he was placed under arrest before the officer observed symptoms of intoxication. The evidence shows Appellant was stopped by the officer for speeding. After the Appellant pulled over to the side of the road, the officer walked up to the vehicle and asked Appellant if he had a driver's license. Appellant replied he did not have one on him. The officer then asked Appellant to step out of the car while the officer ran a check on his license. While talking to Appellant, the officer smelled an odor of intoxicating beverages on Appellant, and noticed that Appellant had red, watery eyes and poor motor control. The officer had Appellant perform two field sobriety tests, which Appellant could not properly perform. Next, the officer had Appellant breathe into a breath tester (a PBT) and it indicated Appellant had a blood alcohol level of .08. After these tests, the officer placed Appellant under arrest, put him in the patrol car and read him his Implied Consent rights. After arresting Appellant, the officer asked Appellant to take a breath test. Appellant stated he wanted a blood test. The officer told him he would have to take a breath test first and Appellant replied "I'll deny the breath test". Appellant refused another opportunity to take the breath test in booking.

A valid arrest is essential to invoke provisions of the Implied Consent Law which gives a police officer the right to request a driver of a motor vehicle to submit to a chemical test for blood alcohol. White v. Oklahoma Department of Public Safety, 606 P.2d 1131, 1132 (Okla.1980). A police officer may stop a moving vehicle not only when he directly observes a violation of the law, but also when specific articulable facts indicate probable cause to believe a violation of the law is present. Smith v. State ex rel. Department of Public Safety, 680 P.2d 365, 367 (Okla.1984); 22 O.S.1991, § 196. The evidence shows that the arresting officer initially stopped Appellant for a traffic violation which he directly witnessed. In such cases, an officer has the duty and right to stop and investigate. Appellant's contention the initial stop of Appellant was unlawful is without merit.

Appellant contends he was "arrested" when he was placed in the police unit while the officer was checking his license and that it was only after his "arrest" that the officer observed signs of his intoxication. The only evidence in the record shows Appellant was asked to "step out" of his car while the officer was checking his license and that Appellant was not placed into the police car until after Appellant failed the field sobriety tests. After Appellant failed the field tests, the officer testified he "placed him in custody" and put him in the police car.

The officer stopped Appellant's vehicle after directly observing a violation of the law. After properly stopping the vehicle, he observed signs which indicated Appellant was intoxicated, which is the commission of a separate offense....