Phillips v. State ex rel. Dept. of Public Safety, 79146

• Decision Date: 28 April 1992
• Docket Number: No. 79146,No. 1,79146,1
• Citation: 831 P.2d 3,1992 OK CIV APP 51
• Parties: 1992 OK CIV APP 51 Gary L. PHILLIPS, Appellee, v. The STATE of Oklahoma, ex rel. DEPARTMENT of PUBLIC SAFETY, Appellant. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 3

831 P.2d 3

1992 OK CIV APP 51

Gary L. PHILLIPS, Appellee, v. The STATE of Oklahoma, ex rel. DEPARTMENT of PUBLIC SAFETY, Appellant.

No. 79146.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.

Court of Appeals of Oklahoma Division No. 1.

April 28, 1992.

Appeal from the District Court of Comanche County; Peter Clinton Moore, Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

Cara Epps Clifton, Oklahoma City, for appellant.

Joe W. Hamlin, Lawton, for appellee.

MEMORANDUM OPINION

GARRETT, Presiding Judge.

Appellee Gary L. Phillips (Phillips) was arrested on May 26, 1991, for driving under the influence (DUI). At the time of the arrest, he refused to take a breath test. He was given an "Officer's Affidavit and Notice of Revocation", informing him his driver's license would be revoked under Oklahoma's Implied Consent Law. He requested a hearing before the Appellant, Department of Public Safety (DPS), and on July 24, 1991, DPS set aside the proposed revocation of his license which was based on the Implied Consent Law.

Phillips subsequently pled guilty and was convicted of DUI. On November 23, 1991, DPS revoked his license under 47 O.S.Supp.1990 § 6-205(A)(2). Phillips appealed this revocation to the district court of Comanche County, purportedly "for the Court to determine the propriety of said Order of Revocation." The court set aside this revocation. The court found that the revocation under the implied consent law constituted a "prior revocation". Thus, the court held, 47 O.S.Supp.1990 § 6-205(A)(2) precluded an additional revocation based upon the criminal conviction. DPS appeals.

In this appeal, DPS raises the following propositions of error:

(1) The district court did not have jurisdiction to consider the propriety of Phillips' revocation; and,

(2) The court improperly concluded that there was a previous revocation for purposes of 47 O.S.Supp.1990 § 6-205(a)(2).

The statute on mandatory revocation pertinent to this appeal is 47 O.S.Supp.1990 § 6-205(A)(2):

A. The Department of Public Safety shall forthwith revoke the driver's license or driving privilege of any person upon receiving a record of conviction in any court of any of the following offenses when such conviction has become final:

. . . . .

2. Driving or being in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance or the combined influence of alcohol and any other intoxicating substance provided however, the Department shall not additionally revoke such license pursuant to this subsection if the person's driving privilege has been revoked because of a test result or test refusal pursuant to an implied consent law arising from the same circumstances which resulted in the conviction; ....

The implied consent law relating to revocation of drivers' licenses is found at 47 O.S.Supp.1990 §§ 753, 754. Section 754 requires the arresting officer to seize the driver's license and give the driver a receipt which is recognized as a license to drive for a period of not longer than thirty (30) days. The receipt form "shall contain and constitute a notice of revocation of driving privilege by the Department of Public Safety effective in thirty (30) days." 47 O.S.Supp.1990 § 754(B). (Emphasis added).

In the instant case, Phillips timely appealed the "revocation" received under the implied consent law, and he never lost his driving privileges. The "revocation", under the implied consent law, never occurred. We hold that the notice of revocation under § 754 is not a revocation, for purposes of § 6-205(A)(2), until the revocation becomes effective. The timely filing of an appeal delays the effectiveness of the revocation until the hearing is held and a decision is made. See the definition of "revocation", found at 47 O.S.1981 § 1-155:

The termination by formal action of the Department of a person's driver's license or privilege to operate a motor vehicle on the public highways, which termination shall not be subject to renewal or restoration except that an application for a new license may be...