Martinez v. State
| Decision Date | 10 February 2014 |
| Docket Number | No. 111116.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.,111116. |
| Parties | Ralph R. MARTINEZ, Plaintiff/Appellant, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Oklahoma County, Oklahoma; Honorable James B. Croy, Trial Judge.
AFFIRMED.
John E. Hunsucker, A. DeAnn Taylor, Oklahoma City, Oklahoma, for Plaintiff/Appellant.
Douglas R. Young, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Defendant/Appellee.
¶ 1 Ralph R. Martinez appeals the decision of the district court upholding the revocation of Martinez's driver's license for intoxication while in actual physical control of a vehicle. On review, we affirm the decision of the district court.
¶ 2 On October 1, 2011, the Midwest City police received a citizen's report of a possible drunk driver. This report was transmitted over the police radio. The call was assigned to Officer Justin Stevenson. Another officer who had heard the call, Roland Branham, noticed a car sitting about five feet from the curb on a city street. Upon investigating, Officer Branham found Appellant Martinez apparently asleep in the vehicle. Branham woke Martinez, and asked him to exit the vehicle. Branham noted that Martinez attempted to exit the car while his seat belt was still fastened and that he had the car keys in his hand. Branham also noted a strong odor of alcohol in the vehicle. When Martinez exited the vehicle, Branham noted signs of intoxication. Officer Stevenson and another officer, Lieutenant Simonson, then arrived on the scene. Branham and Stevenson attempted to administer a sobriety test, but Martinez fell down while the test was being administered. Officer Branham then handcuffed Martinez and told him he was under arrest.
¶ 3 Officer Branham had already worked a 10–hour shift, and handed the matter to Stevenson. Stevenson checked to see that Martinez's vehicle was drivable, and observed signs of intoxication. He then placed Martinez in his patrol car, and told him he was under arrest. Stevenson transported Martinez to the Midwest City Jail, where Martinez agreed to submit to alcohol testing. The test showed that Martinez's blood alcohol was above the legal limit. Stevenson seized Martinez's license and made out the sworn report required by 47 O.S.2011 § 754. Martinez's license was revoked. Martinez requested an administrative hearing pursuant to 47 O.S.2011 § 754(D), at which the revocation of his license was upheld. Martinez then appealed the matter to the district court, which heard testimony from Officers Branham and Stevenson in a de novo proceeding on the merits.
¶ 4 The district court upheld the revocation of Martinez's license. Martinez now appeals that decision, arguing primarily that the initial revocation was void because of defects in the sworn report required by 47 O.S.2011 § 754, and because Stevenson lacked probable cause for his warrantless arrest of Martinez.
¶ 5 “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.” Hollis v. State ex rel. Dept. of Public Safety, 2006 OK CIV APP 25, ¶ 4, 131 P.3d 145, 146.
¶ 6 Martinez's first allegations of error argue that the officer's sworn report submitted pursuant to 47 O.S.2011 § 754(C) is facially defective unless made by the “arresting officer,” and that Officer Stevenson did not qualify as an arresting officer in this context. This argument presents a first impression question of law regarding the terms “arresting officer,” “officer,” and “a law enforcement officer” as they are used in 47 O.S.2011 § 754.
¶ 7 Section 754 uses the phrase “arresting officer” once, in subsection (A):
A. Any arrested person [who tests positive for an illegal alcohol level] ... shall immediately surrender his or her driver license, permit or other evidence of driving privilege to the arresting law enforcement officer. The officer shall seize any driver license, permit, or other evidence of driving privilege surrendered by or found on the arrested person during a search. (Emphasis added).
The statute uses the phrase “the officer” rather than “arresting officer” in the next paragraph:
B. If the evidence of driving privilege surrendered to or seized by the officer has not expired and otherwise appears valid, the officer shall issue to the arrested person a dated receipt for that driver license, permit, or other evidence of driving privilege on a form prescribed by the Department of Public Safety. This receipt shall be recognized as a driver license and shall authorize the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days. The receipt form shall contain and constitute a notice of revocation of driving privilege by the Department effective in thirty (30) days. The evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the officer and shall be submitted by mail or in person to the Department within seventy-two (72) hours of the issuance of the receipt. The failure of the officer to timely file this report shall not affect the authority of the Department to revoke the driving privilege of the arrested person. (Emphasis added).
¶ 8 The third paragraph of the statute uses another phrase—“sworn report from a law enforcement officer”:
C. Upon receipt of a written blood or breath test report reflecting that the arrested person, if under twenty-one (21) years of age, had any measurable quantity of alcohol in the person's blood or breath, or, if the arrested person is twenty-one (21) years of age or older, a blood or breath alcohol concentration of eight-hundredths (0.08) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by Section 6–205.1 of this title. Revocation or denial of the driving privilege of the arrested person shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer as provided in this section or by the Department as provided in Section 2–116 of this title. (Emphasis added).
¶ 9 The initial question before us is whether the “sworn report from a law enforcement officer” required by § 754(C) is a sworn report by the “arresting officer” mentioned in § 754(A), as opposed to simply an officer with personal knowledge of the events sworn to. In Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, 795 P.2d 1048. the Oklahoma Supreme Court confirmed that the “sworn report” of § 754(C) is a statutory requirement for a license revocation, stating:
DPS concedes that the sworn report of an enforcement officer, which § 754(3) expressly mandates, is absent from the DPS paperwork and from the record in this case. Although there is an exhibit before us entitled “Officer's Affidavit and Notice of Revocation,” the name of the person designated in this document as the affiant differs from that of the individual whose signature appears on it. This patent deficiency in the statutorily required DPS material does indeed make the Department's revocation order vulnerable to invalidation, on timely appeal, for failure to meet the minimum legislatively prescribed standards for the DPS paperwork on which its administrative action must be rested.
Id at ¶ 5, 795 P.2d at 1050 (footnotes omitted).
¶ 10 Chase does not characterize the required report as one by the “arresting officer” in the body of the Opinion Nor does § 754(C) directly state that the “sworn report from a law enforcement officer” must be from the arresting officer, but facially requires only a report from a law enforcement officer who had “reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law.”
¶ 11 However, in a footnote within the Chase opinion, Justice Opala used the phrase “arresting officer” when paraphrasing the language of subsection C. See Chase at n. 1, 795 P.2d at 1049, n. 1. This footnote is clearly dictum, as the issue in Chase was not whether the affiant was an “arresting officer” but whether there was a sworn statement at all.1 Further, after Chase was decided, the statutory text on which this dictum may rely was changed by the Legislature.2 Therefore, we find no precedential authority on this question
¶ 12 Finding no precedential authority, we turn first to the statutory language. Subsection A of the statute refers to the arresting officer seizing the license of the driver. This is the only reference to an arresting officer we find in this section Subsection B then refers to the officer attaching to the sworn report the evidence of driving privilege surrendered to or seized by the officer.
¶ 13 Martinez argues that “the officer” noted in subsection B is clearly the “arresting officer” from subsection A. Therefore, Martinez argues, the “sworn report” mentioned in subsection B is the report of the arresting officer, and the sworn report of subsection C that provides the basis for revocation must also be the report of the arresting officer.
¶ 14 Our review of the legislative history of § 754 leads us to a different conclusion. Prior to a 1999 amendment...
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