Hollis v. State ex rel. Dps

• Decision Date: 14 November 2005
• Docket Number: No. 102,072. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,102,072. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
• Citation: 131 P.3d 145,2006 OK CIV APP 25
• Parties: Ricki Royce HOLLIS, Plaintiff/Appellee, v. STATE of Oklahoma ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 145

131 P.3d 145

2006 OK CIV APP 25

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

No. 102,072. 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.

November 14, 2005.

Certiorari Denied February 21, 2006.

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

REVERSED AND REMANDED.

Doug Friesen, The Law Offices of Doug Friesen, P.C., Oklahoma City, OK, for Plaintiff/Appellee.

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

Opinion by BAY MITCHELL, Judge.

¶ 1 Ricki Royce Hollis was arrested on September 29, 2004 for driving under the influence of alcohol, and the State of Oklahoma, ex rel. Department of Public Safety (DPS) revoked his license for 180 days for refusing to submit to chemical testing. The district court, however, set aside the revocation by directed verdict and reinstated Hollis' license. DPS appeals from that directed verdict.

¶ 2 The arresting officer, Trooper Timmons, was the only person to testify for DPS. Timmons testified that he read the entire informed consent form to Hollis five times from the time he arrested Hollis and placed him in the police car to the time Hollis was processed and placed in the jail cell. Hollis, however, never replied when asked whether he would take the test. Hollis was conscious and did not have any apparent physical or mental disabilities, other than the fact that he was crying most of the time.

¶ 3 After DPS rested, Hollis moved for a directed verdict (which he designated a motion for dismissal) on the ground that he was incapable of refusing to submit to the test, because he never understood the informed consent. The district court granted the directed verdict and reinstated Hollis' license.¹ The court emphasized that DPS failed to show Hollis had a "conscious awareness and understanding for that refusal of taking the test." (emphasis added). The court also noted its concern that Trooper Timmons had to read the informed consent five times. Now, on appeal, DPS contends it proved Hollis refused to submit to the chemical test. DPS also contends the trial court erred in placing the burden on DPS to prove Hollis had a conscious awareness and understanding of the implied consent. Instead, DPS argues Hollis had the burden to prove he was incapable of consenting.

¶ 4 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 matter of law or lack sufficient evidentiary foundation. Abdoo v. State of Oklahoma, ex rel. Dept. of Public Safety, 1990 OK CIV APP 2, ¶ 11, 788 P.2d 1389, 1393. We review a trial court's grant of a directed verdict de novo. Cline v. DaimlerChrysler Co., Corp., 2005 OK CIV APP 31, ¶ 9, 114 P.3d 468, 473. A motion for directed verdict presents the question of whether there is any evidence to support a judgment for the non-moving party. Id. In ruling on a directed verdict, the trial court must consider as true all the evidence and all the reasonable inferences therefrom in favor of the party opposing the motion and disregard any conflicting evidence. Id. The motion should be denied when there is a controverted question of fact as to which reasonable minds could differ, but should be granted if the non-moving party failed to establish a prima facie case. Id. We find 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. Further, the trial court improperly granted a directed verdict where DPS established its prima facie case for revoking Hollis' license.

¶ 5 The implied consent statute provides that by driving a motor vehicle on a public highway, the operator is deemed to consent to taking a blood or chemical test to determine the alcoholic content of his or her blood. 47 O.S. Supp.2004 § 751(A). The civil penalty for violating the implied consent statute is in 47 O.S. Supp.2004 § 754(A), which provides that any arrested person "who has refused to submit to a breath or blood test" must surrender his or her driver's license to the arresting officer. However, § 751(D) provides two exceptions:

Any person who is unconscious or otherwise incapable of refusing to submit to a test of such person's blood or breath to determine the alcohol concentration thereof,. . . shall be deemed not to have withdrawn the consent provided by subsection A of this section, and such test may be administered as provided herein. (emphasis added).

The primary factual issue in this case was whether Hollis was incapable of refusing to submit to the chemical test. If so, he would be deemed to have impliedly consented to be tested and his license would not be subject to revocation. To determine this factual issue, we must determine whether DPS presented sufficient evidence to establish its prima facie case and avoid a directed verdict.

¶ 6 To prove revocation is proper based on a licensee's refusal to submit to a breath or blood test, the State must prove the following four elements by a preponderance of the evidence:

1) 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 . . . or other public place of this state while under the influence of alcohol . . . or the combined influence of alcohol and any other intoxicating substance as prohibited by law 2) the person was placed under arrest;

3) the person refused to submit to the test or tests; and

4) the person was informed that driving privileges would be revoked or denied if the person refused to submit to the test or tests.

47 O.S. Supp.2004 § 754(F) (emphasis added); Burris v. State of Oklahoma, ex rel. Dept. of Public Safety, 1989 OK CIV APP 64, ¶ 11, 785 P.2d 332, 335 (stating burden of proof in license revocation proceedings is preponderance of the evidence).

¶ 7 Trooper Timmons initiated the traffic stop because Hollis was traveling at a high rate of speed and weaving in and out of his lane. He noticed Hollis' eyes were watery and glassy and his speech was slow and slurred. Hollis admitted to having four drinks and taking medication, and he failed the field sobriety tests. Trooper Timmons then placed Hollis under arrest and read him the Implied Consent form a total of five times while he was in the car and at the jail.² Hollis never responded in any way to the requests to take the test. This testimony satisfies elements one, two and four. The only contested element is whether Hollis refused to submit to the chemical test.

¶ 8 We agree with DPS that under Oklahoma law, Hollis' silence can be a refusal to submit to the chemical test. The Oklahoma Supreme Court has held that the implied consent statute "does not sanction a qualified or conditional refusal. The statute requires a licensee to make a choice . . . ." Robertson v. State of Oklahoma, ex rel. Department of Public Safety, 1972 OK 126, ¶ 22, 501 P.2d 1099, 1104 (emphasis added). The Court noted the statute "calls for a simple yes or no to the request for submission. . . . [B]ecause of the remedial intent of the statute anything less than an unqualified consent by the licensee to the requested test constitutes a refusal to do so." Id., ¶ 23, 501 P.2d at 1104. (emphasis added). Allowing the licensee to negotiate or make qualified decisions would impair the effectiveness of the implied consent law because of the rapidity with which alcohol is metabolized by the body. Id., 501 P.2d at 1104. Similarly here, allowing a licensee to simply stand mute and refuse to answer would effectively nullify the implied consent law.

¶ 9 Case law supports the conclusion that a nonverbal rejection is a refusal to submit. In Application of Kunneman, 1972 OK CIV APP 4, 501 P.2d 910, 911 (released by the Oklahoma Supreme Court for official publication), the court found the licensee had refused to submit to the...