Hollis v. State ex rel. Public Safety, 103,625.

• Decision Date: 01 April 2008
• Docket Number: No. 103,625.,103,625.
• Citation: 2008 OK 31,183 P.3d 996
• Parties: Ricki Royce HOLLIS, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
• Court: Oklahoma Supreme Court

183 P.3d 996

2008 OK 31

Ricki Royce HOLLIS, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

No. 103,625.

Supreme Court of Oklahoma.

April 1, 2008.

On Appeal from the District Court in Canadian County, Oklahoma; The Honorable Robert E. Davis, District Judge.

¶ 0 Ricki Royce Hollis, arrested for driving under the influence of alcohol, appealed the decision of the Department of Public Safety ("DPS") to revoke his driver's license for 180 days after he refused to submit to chemical testing. Hollis argued he was incapable of refusing to submit to the test. The trial court set aside the revocation by directed verdict and reinstated Hollis' license. DPS appealed and the Court of Civil Appeals, Division One, reversed and remanded, finding the trial court improperly placed the burden of proof on DPS to prove the driver lacked capacity to refuse. After remand, the trial court again set aside the revocation, finding Hollis was mentally incapable of giving a knowing refusal to consent. DPS appealed and we retained the matter.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Doug Friesen, Oklahoma City, OK, for Appellee.

A. DeAnn Taylor, Oklahoma City, OK, for Appellant.

WINCHESTER, C.J.

¶ 1 The central issue in this appeal is whether the trial court's decision to set aside the revocation of Hollis' driver's license, based on a finding that Hollis was mentally incapable of giving a knowing and conscious refusal to submit to a blood/breath alcohol test, is supported by sufficient evidence. We hold the trial court erred as a matter of law in finding Hollis presented sufficient evidence to prove his incapacity to give a knowing refusal to test.

FACTUAL BACKGROUND

¶ 2 On the evening of September 29, 2004, Trooper Willie Timmons, while traveling north on the Kilpatrick Turnpike, observed Ricki Royce Hollis traveling southbound at a high rate of speed passing several other vehicles. Trooper Timmons followed Hollis for several miles and noticed that he was weaving in and out of his lane and hit the fog line several times. After pulling him over, the trooper noticed that Hollis' eyes were watery and glassy and his speech was slow and slurred. He asked Hollis if he had been drinking, and Hollis admitted to having consumed four drinks.¹ At a later point, Hollis also told the Trooper that he had taken medication. Trooper Timmons administered a standard field sobriety test, which indicated impairment, and he arrested Hollis for driving under the influence of alcohol.

¶ 3 Trooper Timmons read the requisite implied consent test in its entirety to Hollis five times between the time he arrested him and placed him in the police car and the time he processed him and placed him in a jail cell. At no time did Hollis ever respond to either the test request or Trooper Timmons' questioning as to whether Hollis understood the test. Hollis did not have any apparent physical or mental disabilities and remained conscious throughout the arrest and booking process, although at times he sobbed uncontrollably. Trooper Timmons informed Hollis that if he failed to consent to the blood test, his driving privileges would be revoked.

PROCEDURAL HISTORY

¶ 4 As a result of his failure to consent to a test to determine his alcohol concentration, Hollis' driver's license was revoked for 180 days. 47 O.S.2004, § 753. That revocation was upheld at the hearing provided by 47 O.S.2004, § 754. Hollis then filed an appeal in the district court of Canadian County, Oklahoma. Hollis argued that, at the time of his arrest, he was mentally incapable of giving a knowing and conscious refusal to the requested test.

¶ 5 Only one witness, Trooper Timmons, testified. At the close of the evidence of the Department of Public Safety ("DPS"), Hollis moved for a directed verdict to set aside the revocation, which the trial court sustained on the grounds that DPS did not prove Hollis gave a knowing and conscious refusal. DPS appealed, and the Court of Civil Appeals ("COCA"), Division One, reversed and remanded the matter back to the trial court. Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP 25, 131 P.3d 145 (Hollis I). COCA held that "the district court's ruling was erroneous as a matter of law because it improperly placed the burden of proof on DPS to prove Hollis was incapable of refusing to submit to the chemical test." Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP at ¶ 4, 131 P.3d at 146.

¶ 6 At the trial after remand, Hollis provided the sole testimony on his behalf. Hollis did not present any medical evidence regarding his mental state. Hollis testified that his son had been in an accident on August 31, 2003, and that he had been in and out of a coma for one year. On the day before Hollis' arrest, his son had spoken for the first time since his accident. On the date of his arrest, September 29, 2004, Hollis was visiting the office of friends where he consumed three glasses of vodka and orange juice. While on his way home, Hollis stated his wife called to tell him that his son's heart rate was high and that he needed to hurry home. At this point, Hollis began to drive between 90 and 95 miles per hour. Hollis remembered some details about the arrest but testified that he did not remember being read the implied consent advisory or being asked to take a blood or breath test. Trooper Timmons previously testified that Hollis had made some statement about having to get home because "his son had finally woken from a coma or had finally spoken, and that his wife was at home with his son alone and that he had to get home to help his son." Trooper Timmons further stated that Hollis "seemed pretty happy that his son was responding."

¶ 7 The trial court again ruled for Hollis and set aside the revocation of his license. The trial court reasoned that due to the "horrible, horrible personal tragedy going on in the life of" Hollis, he was mentally impaired and "lacked the capacity to understand" the implications of refusing the implied consent. The court found that "the overwhelming guilt, the overwhelming urgency of that moment in time impaired Mr. Hollis to a degree that he was incapable of understanding he was even being given his right."² DPS appealed the ruling and this Court retained the matter.

DISCUSSION

¶ 8 Oklahoma's implied consent statute provides that drivers in Oklahoma "shall be deemed to have given consent to a test or tests of such person's blood or breath" if they are arrested for any offense while "operating or in actual physical control of a motor vehicle . . . while under the influence of alcohol or other intoxicating substance. . . ." 47 O.S. 2004, § 751 (A). The civil penalty for violating the implied consent statute is the surrender of the violator's driver's license. 47 O.S. 2004, § 754(A). There are two exceptions for the failure to take the requested tests: (1) if the person is unconscious or (2) if the person is otherwise incapable of refusing to submit to the test. 47 O.S.2004, § 751(D).³

¶ 9 In order to revoke a license based on refusal to submit to a breath or blood test, DPS must prove, by a preponderance of the evidence: (1) that the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads while under the influence of alcohol and/or other intoxicating substance; (2) the person was placed under arrest; (3) the person refused to submit to the chemical test; and (4) the person was informed that driving privileges would be revoked or denied if the person refused to submit to the test. See 47 O.S 2004 § 753; Smith v. State ex. rel., Dept. of Public Safety, 1984 OK 16, 680 P.2d 365, 368. The refusal does not have to be express; anything less than an unqualified consent by the licensee to the requested test constitutes a refusal. See Robertson v. State of Oklahoma, ex rel. Dep't. of Public Safety, 1972 OK 126, ¶ 22, 501 P.2d 1099, 1104; Hollis v. Dept. of Public Safety, 2006 OK CIV APP at ¶ 8, 131 P.3d at 147. In Hollis I, COCA found that a motorist's silence can be construed as a refusal to test, reasoning that to allow "a licensee to simply stand mute and refuse to answer would effectively nullify the implied consent law." Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP at ¶ 8, 131 P.3d at 147. We agree.

¶ 10 In Hollis I, COCA found that DPS met its burden of proof in revoking Hollis' license. Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP at ¶ 9, 131 P.3d at 147. COCA rejected Hollis' argument that DPS must further prove that he had the capacity to consent to the test as part of its prima facie case. "If licensees who are fully conscious, with no obvious physical or mental impairments, as was the case with Hollis, believe they were incapable of refusing to submit to the tests, the burden of proof is theirs." Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP at ¶ 11, 131 P.3d at 148. After remand, the trial court found that Hollis met his burden of proof that, because of his emotional distress, he did not have the mental capacity to refuse a blood alcohol test. As Hollis was clearly conscious throughout the arrest and booking process, we must determine if sufficient evidence was presented to show that he was otherwise incapable of refusing to submit to the test.⁴ 47 O.S. 2004 § 751(D).

¶ 11 No Oklahoma case has addressed whether emotional distress can be a basis for incapacity to refuse a chemical test under the implied consent statute. In fact, only a handful of other jurisdictions have addressed the issue, with varying results.⁵ Generally, courts are reluctant to excuse drivers who refuse chemical testing on the grounds of mental incapacity when those drivers have the capacity to imbibe or ingest a chemical substance and choose to drive a car.⁶ Regardless, all courts that have permitted a licensee to plead...