Lemus v. State ex rel. Dep't of Pub. Safety
| Decision Date | 19 September 2014 |
| Docket Number | 112,008., Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. |
| Citation | 352 P.3d 46,2015 OK CIV APP 54 |
| Parties | JOSE V. LEMUS, 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 |
Jessica L. Schumacher, Stephen G. Fabian, Jr., Michael O'Brien, Oklahoma City, OK, for Plaintiff/Appellee.
Mark E. Bright, Assistant General Counsel, Department of Public Safety, Oklahoma City, OK, for Defendant/Appellant.
¶ 1 Defendant/Appellant, the State of Oklahoma ex rel. Department of Public Safety (DPS), appeals from the trial court's judgment overturning the drivers license revocation of Plaintiff/Appellee, Jose V. Lemus. At issue is whether a DUI arrestee must be given the Implied Consent Advisory, 47 O.S.2011 § 754(F)(2), in any language other than English before his or her refusal to take a blood-alcohol test may serve as the basis for a drivers license revocation. We answer this question in the negative. Consequently, we reverse the trial court's judgment.
¶ 2 On April 16, 2012, at 1:04 a.m., Del City Police Officer Kenneth Rogers arrested Lemus for suspicion of driving under the influence of an intoxicating substance. Lemus, an El Salvadoran immigrant who had been living in the United States for eleven (11) years, first obtained a drivers license in Florida. He later obtained an Oklahoma drivers license by simply filling out, with the aid of an interpreter, a change of address form. Lemus is fluent in Spanish, but speaks limited English.
¶ 3 Because Officer Rogers was having a difficult time communicating with Lemus, he contacted fellow Del City Officer Liz Whittington for assistance. Officer Whittington, who has limited Spanish speaking ability, arrived at the scene and attempted but failed to read the Implied Consent Advisory to Lemus in Spanish. She then tried unsuccessfully to contact a Spanish speaking officer from both the Oklahoma City and Midwest City police departments. Officer Whittington then read the advisory to Lemus in English. Lemus later conceded he understood the officers asked him to take a test, he agreed to take the test, and he was supposed to blow into the machine.
¶ 4 Lemus was administered the breath test three times. The first test showed Lemus' blood-alcohol level was 0.10. The machine did not produce a reading for either the second or third tests. According to Officer Whittington, Lemus obstructed the testing by placing his tongue over the breath tube. Equating Lemus' actions as a refusal to take the test, Whittington filled out and served Lemus with an Affidavit and Notice of Revocation/Disqualification.
¶ 5 At the conclusion of an administrative hearing held on October 9, 2012, DPS issued an order revoking Lemus' driving privileges for one hundred eighty (180) days. See 47 O.S.2011 § 753 (). Lemus then appealed the decision to the district court, which conducted a trial de novo. Following trial and briefing, the trial court issued a lengthy order reversing the revocation. Although the trial court found Lemus “deliberately fail[ed] to perform the breath-alcohol test by not blowing directly into the mouthpiece,” the court concluded equal protection jurisprudence demanded Lemus be given the Implied Consent Advisory in his native Spanish. From said ruling, DPS appeals.
¶ 6 This case presents a question of law. “Questions of law are reviewed by a de novo standard.” Bank of the Wichitas v. Ledford, 2006 OK 73, 20, 151 P.3d 103. “When reexamining a trial court's legal rulings, an appellate court exercises plenary, independent and non-deferential authority.” Villines v. Szczepanski, 2005 OK 63, 8, 122 P.3d 466.
¶ 7 In Hollis v. State ex rel. Dept. of Pub. Safety, 2008 OK 31, 183 P.3d 996, the Supreme Court reiterated:
In order to revoke a license based on refusal to submit to a breath or blood test [pursuant to 47 O.S. § 753 ], 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.
Id. at 9. Section 754(F)(2) states in relevant part that where a drivers license has been revoked or denied “based upon the refusal of the person to submit to a breath or blood test,” the scope of the DPS hearing shall include whether:
In setting aside Lemus' revocation, the trial court focused on the word “informed” in subsection 754(F)(2)(b) and concluded: “Since Oklahoma issued a driver's license to [Lemus], despite [his] inability to understand English, then Oklahoma must assure such person that notices required by law must be given in the language [Lemus] understands.”
¶ 8 We begin our analysis, as did the trial court, by recognizing that Article XXX, § 1 of the Oklahoma Constitution mandates “all official actions of the state shall be conducted in the English language, except as required by federal law.”1 Clearly, the officers in this case were taking official state action when they arrested Lemus and attempted to test his blood-alcohol level. The question before us, therefore, is whether federal law requires Oklahoma's Implied Consent Advisory be given in any language other than English. For the reasons set forth below, we hold it does not.
¶ 9 Oklahoma, like every other state in the Union, has an implied consent law. “Under this scheme, when a driver turns his vehicle onto a public road, the driver has automatically consented to being tested for intoxicants by blood or breath.” Cheryl F. Hiemstra, Keeping DUI Implied Consent Laws Implied, 48 Willamette L. Rev. 521, 522 (2012). Oklahoma's implied consent law is set forth at 47 O.S.2011 § 751 et seq. Specifically, § 751(A)(1) states in relevant part:
Any person who operates a motor vehicle upon the public roads ... within this state shall be deemed to have given consent to a test or tests of such person's blood or breath, for the purpose of determining the alcohol concentration as defined in Section 756 of this title, and such person's blood, saliva or urine for determining the presence or concentration of any other intoxicating substance ..., if arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a motor vehicle upon the public roads ... while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance....
¶ 10 In Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), the United States Supreme Court held a state statutory scheme similar to Oklahoma's implied consent law did not, on its face, violate due process. The Court later reiterated that revoking the drivers license of a DUI arrestee who refuses to take a blood-alcohol test “is unquestionably legitimate, assuming appropriate procedural protections.” South Dakota v. Neville, 459 U.S. 553, 560, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983). The Oklahoma Supreme Court has specifically determined Oklahoma's Implied Consent Law does not violate the due process provisions of the United States Constitution. Robertson v. State ex rel. Lester, 1972 OK 126, 7–12, 501 P.2d 1099. Although the United States Supreme Court has not addressed whether due process requires that an arrested driver be advised of the consequences of refusing to consent to blood-alcohol testing (nor whether equal protection requires the arrestee comprehend any such advisory), the Neville Court held it was not “fundamentally unfair for [a state] to use the refusal to take the test as evidence of guilt, even though [the driver] was not specifically warned that his refusal could be used against him at trial.” Neville, 459 U.S. at 565, 103 S.Ct. at 923 (addressing self-incrimination concerns).
¶ 11 Like Oklahoma, most states have enacted statutes “requiring law enforcement officers advise suspects of their ‘rights and consequences' regarding the blood or breathalyzer test” and provide for various consequences for refusing to take the test. Hiemstra, 48 Willamette L. Rev. at 524–5. As previously set forth, Oklahoma's Implied Consent Advisory mandates a DUI arrestee be “informed” that his or her driving privileges will be revoked if he or she refuses to take a blood-alcohol test. The exact statutory language of each of the other states' “rights and consequences” advisement provisions vary. Id. at 525. Such a procedure safeguards against potential “violent confrontations” where police officers “administer a blood-alcohol test against the suspect's will.”Neville, 459 U.S. at 559, 103 S.Ct. at 920. Title 47 O.S.2011 § 753 contains Oklahoma's prohibition against forced blood-alcohol testing of a conscious DUI arrestee absent special circumstances.2
¶ 12 According to Hiemstra, there have emerged three approaches to determining whether DUI arrestees have a legally enforceable claim to comprehend the “rights and consequences” advisement:
The first ... requires suspects to fully comprehend the advisement. The second ... requires law enforcement to reasonably accommodate suspects' comprehension. The third ... requires law enforcement to recite the advisement, but the suspect need not comprehend.
Hiemstra, 48 Willamette L. Rev. at 525. Hiemstra concludes, and for the...
To continue reading
Request your trial