Nichols v. State ex rel. Dep't of Pub. Safety

• Decision Date: 07 March 2017
• Docket Number: No. 113,890,113,890
• Citation: 392 P.3d 692
• Parties: Nathan D. NICHOLS, JR., Plaintiff/Appellee, v. STATE of Oklahoma, EX. REL., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
• Court: Oklahoma Supreme Court

392 P.3d 692

Nathan D. NICHOLS, JR., Plaintiff/Appellee,

v.STATE of Oklahoma, EX. REL., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

No. 113,890

Supreme Court of Oklahoma.

FILED: MAR. 7, 2017

As Amended March 9, 2017

Matthew R. Tarvin, Claremore, Oklahoma, for Plaintiff/Appellee.

Mark E. Bright, Assistant General Counsel, DEPARTMENT OF PUBLIC SAFETY, Oklahoma City, Oklahoma, for Defendant/Appellant.

WATT, J.:

¶ 1 A delay of approximately sixteen (16) months occurred between the arrest of the plaintiff/appellee, Nathan D. Nichols, Jr. (Nichols/driver) for driving under the influence and the administrative hearing resulting in revocation of his driver's license. Certiorari was granted to address a single issue: whether the delay constituted a violation of the constitutional right to a speedy trial guaranteed by the Okla. Const. art. 2, § 6.¹

¶ 2 The driver lived under the cloud of a pending revocation proceeding for a period of sixteen (16) months. During twelve (12) months of this time period, the Department was in possession of evidence demonstrating that Nichols was driving under the influence at the time of his arrest. The arresting officer was available for virtually the entire twelve months to testify. Other than funding and personnel constraints, the Department presented no viable reason for the delay. Under these facts, we hold that the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, § 6, was violated and we order reinstatement of his driving privileges.

¶ 3 The continued recurrence of this issue within the Department makes it expedient to set standards on the issue of the speedy resolution of matters where revocation is sought. To avoid the constitutional challenge presented in Pierce and here, the Department should follow the time frame established by paragraphs 28-30, infra , which will ensure timely hearings.

FACTS AND PROCEDURAL HISTORY

¶ 4 The facts surrounding the arrest and resulting blood test results are undisputed. Nichols was arrested on May 8, 2013, by Oklahoma Highway State Trooper J. Borden, for suspicion of driving under the influence. The driver submitted to a blood test. On May 20^th, twelve days after his arrest, the driver requested an administrative hearing.

¶ 5 The Oklahoma State Bureau of Investigation (OSBI) released the results of the driver's blood test to the Department on September 6, 2013. The test demonstrated that Nichols was driving under the influence when arrested. The Department did not issue a notice of revocation to the driver until January 18, 2014, some four (4) months after receiving the OSBI's report. The revocation order was scheduled to take effect on February 17, 2014. On two occasions, January 18^th and February 17^th, the driver again filed requests for an administrative hearing.

¶ 6 On September 16, 2014, the Department held Nichols' administrative hearing on revocation of his license. This proceeding took place approximately eight (8) months after the Department issued its notice of revocation and following multiple hearing requests made by driver. On October 14, 2014, the driver received a copy of the administrative order sustaining the revocation of his driver's license.

¶ 7 The driver filed a timely appeal to the district court which heard the matter on December 16, 2014. Nichols did not dispute his arrest or the procedures or results of the tests and investigation. The driver did argue that his constitutional right to a speedy resolution of the cause, as guaranteed by the Okla. Const. art. 2, § 6, was denied. The trial court noted that the Department could have conducted a hearing at any time between September 11, 2013 and September 16, 2014. Relying primarily upon this Court's opinion in Pierce, supra.² , the trial court sustained Nichols' appeal, reinstated his driving privileges, and exonerated his bond. On appeal, the Court of Civil Appeals reversed.

¶ 8 Nichols' petition for certiorari was filed on August 18, 2016. After requests for various extensions were filed by both parties, the answer thereto was filed on September 27, 2016 and the record received on January 3, 2017. On January 10, 2017, the cause was assigned to these chambers.

STANDARD OF REVIEW AND ANALYSIS

¶ 9 Pierce is determinative of the following two issues pertinent to this appeal: (1) standard of review, and (2) the factors used to determine whether the State has met its burden to provide a speedy trial. Just as there is no dispute as to the facts surrounding Nichols' arrest, neither party disputes the applicability of the legal principles established by Pierce. Rather, the disagreement arises as to whether these facts establish a violation of the driver's constitutional right to a speedy trial.

¶ 10 It is clear under Pierce , constitutional issues are reviewed de novo , requiring an independent, non-deferential re-examination of the Department's legal rulings. Pierce also established the controlling principles to use in determining whether the State has violated a driver's constitutional right to a speedy trial in a license revocation cause. In such proceedings, this Court considers: 1) the length of the delay; 2) the reason for the delay; 3) the party's assertion of the right; and 4) the prejudice to the party occasioned by the delay.³ Finally, the opinion instructs that personnel and budgetary restraints are insufficient to excuse the government's constitutional duty to provide a timely right to be heard.

RIGHT TO SPEEDY TRIAL

¶ 11 The record demonstrates there was a sixteen (16) month delay between the driver's initial request for a hearing and the date of the administrative proceeding. Within four months of Nichols' request for a hearing, the OSBI had provided the Department with Nichols' lab test results from the night of his arrest. This evidence verified the driver was under the influence at the time he was detained. Without any sound explanation, the State delayed Nichols' administrative hearing for another twelve (12) months after receiving this evidence. Under these facts, this prolonged wait violated Nichols' right to a speedy trial as guaranteed by the Okla. Const. art. 2, § 6.

¶ 12 The State has no sound basis for its delay. Nichols made his first request for a hearing on May 20, 2013. Nevertheless, the Department contends that the date for calculating the speedy trial issue should extend either from January 18, 2014 or February 17, 2014, when the second and third requests for a revocation hearing were made. The Department urges a speedy trial was provided to driver pointing to the length of time between the notice it provided and the hearing date. Nichols insists that the correct date from which to calculate his due process argument concerning his right to a speedy trial should extend from his first request for a hearing. We agree with the driver's contention. The State cannot artificially control the date from which the right to a speedy hearing will be calculated by delaying the issuance of a notice of revocation as it did with this driver.

¶ 13 In support of its argument, the State looks to Title 47, § 754, subsection D.⁴ The statute provides that when notified of the suspension of driving privileges, the "Department shall grant the person an opportunity to be heard if the request is received by the Department within fifteen (15) days after the notice." On appeal, relying on this statute, the State characterizes the driver's May, 2013, first request as "premature." It then argues, this untimely request can be disregarded and required no action or response by the State. The Department could simply treat this May, 2013 event as never having occurred and irrelevant for the purpose of calculating the time frame for a speedy trial.

¶ 14 In support of this position, the Department points to the transcript testimony as proof that throughout these proceedings, it has continually held to the position that Nichols' initial request was "premature" under § 754(D). However, the cited transcript does not verify this contention. Rather, the material appears to be an offer of proof and admission by the State's attorney that May 20, 2013, is the proper date to be utilized in determining whether the State met its duty to provide timely notice and hearing to Nichols.

¶ 15 The Department cites to lines sixteen (16) and (17) on page 8 of the transcript. We find instructive lines eleven (11) through twenty-two (22) on the same page. They provide in pertinent part:

"... THE COURT: ... With that, DPS have any further evidence of any kind?

MR. BRIGHT: Your Honor, the only evidence that I would offer would be an offer of proof concerning the administrative hearing and the request that was made. We did receive a request from the Plaintiff in this matter on May 20, 2013, and the administrative hearing was held on September 16, 2014.

THE COURT: September what date?

MR. BRIGHT: September 16, 2014.

THE COURT: The request was on May 20, 2013?

MR. BRIGHT: Yes."

¶ 16 The above quotation makes it clear that, at the time of trial, the Department considered the May 20, 2013 request sufficient to put it on notice of the driver's desire for a hearing. It is also apparent that the Department's "premature notice" argument was not a theory advanced at the trial court; rather it was raised for the first time on appeal.

¶ 17 At trial, the State made the assertion that the date of the driver's notice was May 20, 2013. The statement is made as part of an "offer of proof." It has long been recognized that an attorney's statements during judicial proceedings may be considered admissions of fact.⁵ Furthermore, generally, issues raised for the first time on appeal are not subject to review.⁶

¶ 18 Even taking judicial notice of the statute,⁷ we find the statutory notice provision does not weigh against the driver in this cause. The arresting officer testified that he was available to appear at a hearing for almost the entire time period between Nichols' arrest and the actual hearing date. Thus, there was no...