Muratore v. State

• Decision Date: 28 January 2014
• Docket Number: No. 111,586.,111,586.
• Citation: 320 P.3d 1024
• Parties: Mark M. MURATORE, Plaintiff–Appellee, v. STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant–Appellant.
• Court: Oklahoma Supreme Court

320 P.3d 1024

Mark M. MURATORE, Plaintiff–Appellee,

v.STATE of Oklahoma, ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant–Appellant.

No. 111,586.

Supreme Court of Oklahoma.

Jan. 28, 2014.

On Certiorari to the Court of Civil Appeals, Division I, On Appeal from the District Court of Oklahoma County, State of Oklahoma, Honorable James B. Croy.

¶ 0 Mark Muratore, after being arrested for driving under the influence, submitted to a breathalyzer test. The breathalyzer test was administered using the Intoxilyzer 8000, and the test result reflected an alcohol concentration of .11. The Department of Public Safety revoked Mr. Muratore's driver's license for one year, and he appealed the revocation to the District Court of Oklahoma County on issues of the admissibility of the breathalyzer test. The trial court vacated the revocation of Mr. Muratore's driver's license, finding that the Board of Tests had no rules in place governing maintenance procedures for the Intoxilyzer 8000 and that the manufacturer's certificate of calibration for this particular Intoxilyzer 8000 and the supplier's certificate of analysis for the gas canister used as a reference method for the Intoxilyzer 8000 were inadmissible hearsay. The Court of Civil Appeals reversed. We granted certiorari and find that the trial court did not abuse its discretion in refusing to admit the manufacturer's certificate of calibration and the supplier's certificate of analysis. We also find that the Department of Public Safety did not meet its threshold burden of proving all the facts necessary to sustain the revocation of Mr. Muratore's license, and the record supports the trial court's decision to vacate the revocation of Mr. Muratore's driver's license.

COCA OPINION VACATED; TRIAL COURT'S ORDER VACATING THE REVOCATION OF PLAINTIFF–APPELLEE'S DRIVER'S LICENSE AFFIRMED.

Stephen G. Fabian, Jr., Oklahoma City, Oklahoma, Attorney for Plaintiff–Appellee.

Joanne Horn, Assistant General Counsel, Department of Public Safety, Oklahoma City, Oklahoma, Attorney for Defendant–Appellant.

GURICH, J.

Facts and Procedural History

¶ 1 On April 21, 2012, at approximately 11:30 p.m., Plaintiff–Appellee Mark Muratore was arrested by Officer Tim Harwell of the Edmond Police Department for operation of a motor vehicle while under the influence of an intoxicating substance. The arresting officer read him the Oklahoma Implied Consent advisory and transported Muratore to the booking area of the Edmond city jail where he voluntarily submitted to a breathalyzer test. The breathalyzer test was administered using the Intoxilyzer 8000, a device approved by the Board of Tests for Alcohol and Drug Influence. At 11:51 p.m. the officer began the fifteen-minute deprivation period.¹ Once the fifteen-minute deprivation period was over, the officer took the first breath sample at 12:08 a.m. on April 22, 2012, with a test result of .11g/210L. ² The second sample was taken at 12:11 a.m. with a test result of .11g/210L.³ Using the Officers' Affidavit and Notice of Revocation/Disqualification form provided by the Department of Public Safety, the officer prepared and served the Affidavit revoking Mr. Muratore's driver's license. On April 23, 2012, Mr. Muratore requested an administrative hearing with DPS concerning the revocation of his driver's license. An administrative hearing was held on November 7, 2012, and the hearing officer sustained the revocation. Mr. Muratore appealed to the District Court of Oklahoma County.

¶ 2 At trial, the parties stipulated to the following facts: 1) the officer had reasonable grounds to stop Mr. Muratore; 2) Mr. Muratore was operating a motor vehicle on the roadways of Oklahoma; 3) the officer arrested Mr. Muratore; 4) the officer read the implied consent advisory to Mr. Muratore; and 5) Mr. Muratore agreed to take the breathalyzer test. The only witness, Officer Harwell, testified that although he was trained by the Board of Tests to operate the Intoxilyzer 8000 and his permit for administering the test was current at the time of the arrest, the affidavit he signed contained several errors, including the date of arrest,⁴ the date the affidavit was served, and the date the officer signed the affidavit.⁵

¶ 3 The trial court admitted a number of exhibits at trial,⁶ including the arresting officer's affidavit, but refused to admit the manufacturer's Certificate of Calibration for the Intoxilyzer 8000, serial number 80–003810, dated March 26, 2009, and the ILMO Specialty Gases Certificate of Analysis for the gas canister, lot number 03112080AI, dated February 10, 2012. The trial court found both documents were hearsay and did not fall under the public records exception to the hearsay doctrine found in 12 O.S.2011 § 2803(8) because they were not created by the Board of Tests. After hearing argument from both sides, the trial court also found the Board of Tests had no rules in place governing maintenance procedures for the Intoxilyzer 8000. The trial court reversed the revocation of Mr. Muratore's driver's license.

¶ 4 DPS appealed, and COCA reversed, disagreeing with the trial court's interpretation of the facts:

We here note that, in support of his argument to affirm, Muratore argues the breathalyzer was obviously malfunctioning, and the trial court so properly determined, given the discrepancy between the date of arrest entered by the officer (“4/22/2012”) and the “date of test” entered automatically by the breath testing device (“04/21/2012”). However, from our examination of the Officer's Affidavit and Notice of Revocation, and considering the admitted date of the arrest on April 21, and the beginning of the deprivation period just before midnight on April 21, it seems more likely the device recorded the correct time (11:53 p.m.) when the deprivation period began on April 21, 2012, as the correct starting “date of test” (“04/21/2012”), and some fourteen minutes later, at “00:07” (12:07 a.m.) on April 22, 2012, recorded the result of the first of three “air blank” reference tests before recording the analysis of Muratore's first breath sample at “00:08” (12:08 a.m.) on April 22, 2012.

Mark Muratore v. State, ex rel. Dep't of Pub. Safety, Case No. 111,586, at 16 n. 1 (May 10, 2013) (published) (emphasis added). Mr. Muratore petitioned this Court for certiorari review, and we granted certiorari on November 25, 2013.

Standard of Review

¶ 5 The District Court's review of a driver's license revocation is conducted de novo, “with the ‘trial de novo’ being a trial of the entire case anew, both on the law and on the facts.” Appeal of Dungan, 1984 OK 21, ¶ 7, 681 P.2d 750, 752;see also47 O.S.2011 § 6–211(I). To revoke a driver's license based upon a breath test result and a sworn report from a law enforcement officer, DPS bears the burden in the district court of proving by a preponderance of the evidence “all facts necessary to sustain the revocation, including the operation/actual physical control of a motor vehicle while intoxicated, a valid arrest, proper advice of rights and consequences, as well as consent to and performance of a valid test on a properly maintained testing device.” Derrick v. State ex rel. Dep't of Pub. Safety, 2007 OK CIV APP 56, ¶ 11, 164 P.3d 250, 253 (citing 47 O.S. 754(F)(1); 47 O.S. 6–211; Smith v. State, ex rel. Dep't of Pub. Safety, 1984 OK 16, ¶¶ 6–8, 680 P.2d 365, 368;Westerman v. State, 1974 OK CR 151, ¶ 11, 525 P.2d 1359, 1361).

¶ 6 “Revocation appeal proceedings in the district court are exempt from the provisions of the Oklahoma Pleading and Discovery codes, but they are not exempt from the Oklahoma Evidence Code.” Hedrick v. The Comm'r of the Dep't of Pub. Safety, 2013 OK 98, 315 P.3d 989. The trial court's determination to admit or not admit evidence under one of the hearsay exceptions will not be disturbed absent an abuse of discretion. Kerr v. Clary, 2001 OK 90, ¶ 15, 37 P.3d 841, 844. In reviewing the revocation of a driver's license on appeal, this Court will not reverse the trial court's judgment “if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support [the trial court's] findings.” Smith, 1984 OK 16, ¶ 7, 680 P.2d 365, 368.see also Hollis v. State ex rel. Dep't of Pub. Safety, 2008 OK 31, n. 4, 183 P.3d 996, 999 n. 4 (“Unless the lower court's rulings are found to be erroneous as a matter of law, or unsupported by evidentiary foundation, the appellate courts will not disturb the findings made.”) (emphasis added).

Analysis

The Trial Court Did Not Abuse Its Discretion in Refusing to Admit the Manufacturer's Certificate of Calibration and the Supplier's Certificate of Analysis

¶ 7 At trial, DPS attempted to offer into evidence a Certificate of Calibration for the Intoxilyzer 8000, serial number 80–003810, from the manufacturer of the device, CMI, Inc. The certificate claims to certify that the calibration of the device was tested on March 26, 2009, and found to be in compliance with the National Safety Administration Standard for Devices to Measure Breath Alcohol. DPS also attempted to offer into evidence a Certificate of Analysis from ILMO Specialty Gases, a supplier of the gas canisters used as a reference method for the Intoxilyzer 8000. The certificate claims to certify that on February 10, 2012, the gas canister, lot number 03112080AI, contained a ratio of ethanol and nitrogen appropriate for use with breath alcohol testing instruments. Counsel for Mr. Muratore timely objected to the admission of both certificates as hearsay.⁷

¶ 8 It is undisputed that both certificates are hearsay because they were offered to prove the truth of the matter asserted-that both devices were in proper working order.⁸ But DPS argued both certificates were admissible under 12 O.S.2011 § 2803(8), the public records hearsay exception, which excludes from the hearsay rule:

[A] record of a public office or agency setting forth its regularly conducted and regularly recorded activities or matters observed...