Hendrix, Application of

• Decision Date: 20 August 1975
• Docket Number: No. 2,No. 46760,46760,2
• Citation: 539 P.2d 1402
• Parties: Application of Cuington Sam HENDRIX for the Restoration of his Driver's License
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1402

539 P.2d 1402

Application of Cuington Sam HENDRIX for the Restoration of

his Driver's License.

No. 46760.

Court of Appeals of Oklahoma, Division No. 2.

Aug. 20, 1975 Released for Publication by Order of Court of Appeals Sept. 11, 1975.

Lewis E. Darrell, Oklahoma City, for appellant.

Stephen G. Fabian, Jr., Associate Counsel, Dept. of Public Safety, Oklahoma City, for appellee.

BRIGHTMIRE, Judge.

Appellant's refusal of a chemical test to determine the alcoholic content of his blood after being arrested without a warrant in his sister's front yard 'for public drunk' resulted in a revocation of his driver's license by both the Department of Public Safety and the District Court of Oklahoma County. He prosecutes this appeal contending that the request for a blood test was ineffective because his arrest was unlawful.

On March 6, 1973, shortly after four o'clock in the afternoon on an Oklahoma City street, one Mr. Hedge reported to the police the description of a man and a car which had run into him a short time before and then left the scene. Appellant, a 75-year-old man, was the one later accused of this. When the police officer arrived at the scene, only the driver of the car which was struck was still there. He told Officer Andrews he advised appellant not to leave the scene, but that appellant mumbled a street location before driving away and appeared to have been intoxicated. The officer was given the street location, a description of appellant, his car, and its license tag number.

Upon arriving in the area mentioned about 30 minutes later, the officer saw, parked in a residential driveway, a car that fit the description of the hit-and-run vehicle. In front of the car, according to the officer, was a man lying on the driveway. The officer said that as he approached, the man stood up. He fit the description of the hit-and-run driver and emitted 'a strong odor of alcohol.' Moreover, according to the policeman, the suspect's 'eyes were bloodshot, watery. And he attempted to speak and when he did so, it was slurred and mumbled to the point where I couldn't understand it. . . . He tried to walk and used the car for support. . . . I placed (appellant) under arrest for public drunk.'

Shortly after the arrest, a witness to the accident arrived at the residence and identified appellant as the hit-and-run driver. The officer then said he was also arresting appellant for driving an automobile while under the influence of alcohol and leaving the scene of an accident. Later at police headquarters, when asked, the accused refused to submit to a chemical test, either breath or blood, to determine the alcoholic content of his blood.

Appellant's driving privilege was thereupon revoked by the Oklahoma Commissioner of Public Safety for a period of six months under the provisions of 47 O.S.1971 § 753. A hearing before the commissioner upon the revocation order requested by appellant resulted in the order being upheld.

After a de novo hearing in district court, as provided by 47 O.S.1971 § 755, the trial court found that appellant 'was arrested upon reasonable grounds to believe that he was driving under the influence of alcohol and that he subsequently refused to submit to a chemical test and therefore the six month revocation ordered by the Department of Public Safety should be affirmed.'

In his appeal, appellant argues under three separate propositions, in effect, that his refusal to submit to a chemical test was inoperative because 'his arrest was unlawful and therefore the request that he take a chemical test was unlawful.'

The Implied Consent Law giving a police officer the right to request a driver of a motor vehicle to submit to a chemical test of his blood is incorporated in 47 O.S.1971 § 751 which reads as follows:

'Any person who operates a motor vehicle upon the public highways or streets of this state shall be deemed to have given consent subject to the provisions of this act to a chemical test or tests of his blood or breath, at the election of the person proposed to be tested, for the purpose of determining the alcoholic content of his blood. The test or tests shall be administered at the direction of a law enforcement officer After having arrested a person and having reasonable grounds to believe the person driving or in actual physical control of a motor vehicle upon the public highways Was under the influence of alcohol or intoxicating liquor.' (emphasis ours)

This language, it can be seen, requires that prior to a request to submit to the chemical test there must be (1) an arrest of one operating or in control of a motor vehicle on a 'public' highway or street, and (2) the arresting officer must have reasonable grounds to believe such person is under the influence of alcohol. ¹ This brings us to two threshold questions: (1) is a valid arrest essential to invoke the provisions of § 751 and (2) of so, was the arrest involved here lawful?

The first question seems to have been answered in Application of Baggett, Okl., 531 P.2d 1011 (1974) by citing cases stressing the importance of a lawful arrest as a condition precedent to a chemical test. In fact this language, found in a North Dakota case, was among that quoted with approval in Baggett: 'All that the law now requires as condition precedent to a chemical test is that there be a valid arrest.'

This being so we turn to the matter of whether appellant was lawfully arrested.

Admittedly the police officer had no warrant for the arrest of appellant. It is not contended a felony had been committed nor was appellant even suspected of having committed one. Under these circumstances the officer could legally arrest appellant only for 'a public offense, committed or attempted in his presence.' 22 O.S.1971 § 196; Coffey v. State, 38 Okl.Cr. 91, 258 P. 923 (1927). ²

As though he was aware of relevant law, the arresting officer testified that while driving east on 4th Street he saw a white over blue Pontiac--fitting the description of the one given him a short time before--sitting in a residential driveway. He further explained that '(l)ying on the driveway, directly in front of this vehicle, there appeared to be a man lying there. I stopped my vehicle and got out and went To check the welfare of the person that appeared either asleep or possibly hurt. As I approached him--the description closely fit that given me by Mr. Hedge in relation to the driver. I noticed the vehicle in the driveway had the same tag number as that given to me by Mr. Hedge. As I approached the man on the pavement, he began to stand up. There was a strong odor of alcohol . . .. His eyes were bloodshot, watery. And he attempted to speak and when he did so, it was slurred and mumbled to the point where I couldn't understand it. And I asked him what he'd been drinking. He tried to walk and used the car for support. I asked him what his name was and he gave me the name of Cuington Sam Hendrix And I placed Mr. Hendrix under arrest for public drunk. And at this point I was approached by a witness of the accident, Mr. Franklin, the Security Guard for Oklahoma University. He had been a witness and he told me . . . that this was definitely the man that he had seen driving the hit and run vehicle . . . (so) upon receiving this information, (Mr. Hendrix) was also placed under arrest...