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

• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: Larry Joplin, Judge
• Citation: Sample v. State ex rel. Dep't of Pub. Safety, 382 P.3d 505, 2016 OK CIV APP 62 (Okla. Civ. App. 2016)
• Decision Date: 29 January 2016
• Docket Number: Case No. 113,871
• Parties: Eric Sample, Plaintiff/appellee, v. State of Oklahoma, ex rel. Department of Public Safety, Defendant/appellant.

382 P.3d 505

2016 OK CIV APP 62

Eric Sample, Plaintiff/appellee,

v.State of Oklahoma, ex rel. Department of Public Safety, Defendant/appellant.

Case No. 113,871

Court of Civil Appeals of Oklahoma, Division No. 3.

Decided: January 29, 2016

Mandate Issued: October 20, 2016

Brian K. Morton, Oklahoma City, Oklahoma, for Appellee,

Whitney Herzog Scimeca, Assistant General Counsel, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Appellant,

Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General's Office, Litigation Section, Oklahoma City, Oklahoma, for Amicus Curiae Oklahoma Board of Tests for Alcohol and Drug Influence.

Larry Joplin, Judge:

¶ 1 Defendant/Appellant State of Oklahoma, ex rel. Department of Public Safety (DPS), seeks review of an order of the trial court setting aside the revocation of the driver's license of Plaintiff/Appellee Eric Sample (Plaintiff) as based on an inadmissible breath test sample obtained with a gas cannister and mouthpiece improperly approved for use by a resolution of the Amicus Curiae Oklahoma Board of Tests for Alcohol and Drug Influence (BoT), and holding BoT could only grant such approval pursuant to administrative rules adopted in conformity with the Oklahoma Administrative Procedures Act, 75 O.S. 250, et seq. In this appeal, DPS asserts: (1) in the trial court, it adequately proved the breath test administered to Plaintiff was conducted in compliance with BoT rules; (2) the trial court ignored validly enacted administrative rules of the BoT authorizing the BoT to approve by resolution the use of particular devices and equipment for breath testing; (3) in this implied consent proceeding under 47 O.S. 751 –762 and 47 O.S. 6–211, the trial court lacked jurisdiction to determine the validity of BoT rules and resolutions; (4) the validity of the BoT rules could only be challenged in a declaratory judgment action timely commenced within two years of the adoption of the challenged rule under 75 O.S. 308 ; and (5) BoT should have been joined as a party in the proceedings below and BoT afforded the opportunity to defend its actions. The Amicus Curiae BoT likewise asserts in its brief (1) the trial court lacked jurisdiction to set aside BoT's rules, resolutions and actions in this implied consent proceeding under 47 O.S. 751 –762 and 47 O.S. 6–211, (2) DPS proved in the trial court the administration of a valid breath test and an accurate test result pursuant to BoT rules, and (3) contrary to the trial court's conclusion, BoT validly approved by resolution the gas cannister used in the present case, and properly delegated authority to its Director to approve the mouthpiece used in the present case.

¶ 2 An Edmond Police Officer arrested Plaintiff on the charge of operation of a motor vehicle while under the influence of alcohol. Plaintiff consented to breath testing, which revealed blood/alcohol concentration of .28 gm/l, and the arresting officer served Plaintiff with a notice of the revocation of his driver's license. Upon administrative review, the order of revocation was sustained.

¶ 3 Plaintiff then petitioned for review in the trial court. Plaintiff argued DPS had failed to prove the proper administration of the breath test (1) using a sample containing the proper ratio of ethanol and nitrogen, and (2) the collection of Plaintiff's two breath samples using a new mouthpiece for each collection, both as required by BoT regulations, and necessary to sustain the revocation of his driver's license. DPS asserted it had sustained its burden of proving the administration of a valid breath test using a gas sample approved for use by resolution of the BoT, and using a single new and unused mouthpiece to collect Plaintiff's breath specimens as permitted by action of the BoT Director.

¶ 4 On consideration of the evidence and testimony, the trial court set aside the revocation of Plaintiff's driver's license. The trial court held that the BoT could not, by resolution, approve the use of any particular gas sample, that the Director of BoT could not, by administrative action, approve the use of any particular mouthpiece, and that such approvals could only be accomplished by adoption of rules pursuant to the Administrative Procedures Act:

There is no authority for the director approving some of the equipment by action and the Board of Tests approving some of the equipment by resolution. The Court notes that the Board approved some of the equipment by rule. [T]he practice of an agency further delegating its rule-making authority to another individual ... is prohibited. The director of the Board of Tests had no statutory or regulatory authority to approve equipment utilized in the breath tests administered using the I–8000 Intoxilyzer.

Therefore, because the Board of Tests did not have the ability to create substantive administrative policy by means of ad hoc board resolutions, the designation of ILMO as an approved pressured gas cylinder supplier is ineffective. The Court notes that if such a resolution were deemed to be effective as an agency rule-making procedure, this issue would be decided in favor of the Department. The action taken by the director of the Board of Tests approving mouthpieces is not supported by statute whatsoever, and that action must fail.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the appeal herein by and hereby is SUSTAINED and that the revocation of the driving privileges of Eric Michael Sample by the Department of Public Safety is set aside and held for naught.

¶ 5 “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.’ ” Muratore v. State ex rel. Dept. of Public Safety , 2014 OK 3, ¶ 5, 320 P.3d 1024, 1029. (Citations omitted.) “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.’ ” Id .

“ ‘On appeal, we review the district court's order in an implied consent revocation to determine whether it lacks sufficient evidentiary foundation or is erroneous as a matter of law.’ ” Andrews v. State ex rel. Dept. of Public Safety , 2014 OK CIV APP 19, ¶ 12, 320 P.3d 27, 29. (Citations omitted.) The appellate courts have consistently recognized that, inasmuch as DPS must prove the performance of a valid test on a properly maintained testing device, BoT's compliance with its own rules and regulations governing the approval, operation and maintenance of devices used for breath testing is a matter of proper inquiry in an implied consent hearing. See, Muratore , 2014 OK 3, ¶ 20, 320 P.3d at 1033–1034¹ ; Charlson v. State ex rel. Dept. of Public Safety , 2005 OK 83, ¶ 7, 125 P.3d 672, 674–675² ; Ward v. State ex rel. Dept. of Public Safety , 2004 OK CIV APP 68, ¶ 7,98 P.3d 362, 364³ ; McCown v. State ex rel. Department of Public Safety , 2003 OK CIV APP 66, ¶ 10, 74 P.3d 623, 626⁴ ; Manning v. State ex rel. Dept. of Public Safety , 2003 OK CIV APP 57, ¶ 10, 71 P.3d 527, 529.⁵

¶ 6 More particularly, the Court of Appeals held in Manning that the BoT rules and regulations do not permit the approval of devices or procedures by resolution, but rather require the adoption of rules pursuant to the APA. 2003 OK CIV APP 57, ¶ 12, 71 P.3d at 529.⁶ While the Court of Appeals in Manning suggested the BoT “rules are certainly...