Simic v. State ex rel. Dps

• Citation: 2006 OK CIV APP 8,129 P.3d 177
• Decision Date: 30 December 2005
• Docket Number: No. 102,386.,102,386.
• Parties: Jeffery S. SIMIC, 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

129 P.3d 177

2006 OK CIV APP 8

Jeffery S. SIMIC, Plaintiff/Appellant, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

No. 102,386.

Court of Civil Appeals of Oklahoma, Division No. 2.

December 30, 2005.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Appeal from the District Court of Payne County, Oklahoma; Honorable Donald L. Worthington, Trial Judge.

AFFIRMED.

Royce A. Hobbs, Stillwater, OK, for Plaintiff/Appellant.

Kevin L. McClure, Oklahoma Department of Public Safety, Oklahoma City, OK, for Defendant/Appellee.

Opinion by DOUG GABBARD II, Judge.

¶ 1 Plaintiff, Jeffery S. Simic, seeks review of the trial court's order sustaining a decision by the Department of Public Safety (DPS) revoking Simic's driver's license under Oklahoma's "implied consent" statutes, 47 O.S. 2001 & Supp.2005 §§ 751 through 754. The sole issue on appeal is whether Simic was subjected to a valid arrest by an Oklahoma State University (OSU) campus police officer. For the reasons set forth below, we find the arrest was valid, and affirm the trial court's decision.

FACTS

¶ 2 The parties have stipulated to the basic facts, as follows:

On August 18, 2004, at approximately 1:45 a.m., Officer Justin Hart, of the OSU Police Department in Stillwater, observed a pickup truck driven by Simic traveling north on Knoblock Street adjacent to the OSU campus. The truck ran a stop sign at the corner of Knoblock and Athletic streets and turned east onto Miller Street, traveling away from the campus. Hart followed and observed the truck make a wide turn northbound onto Duck Street — at a point about one block south of the campus — and strike the east curb. Hart continued following the truck, and activated his emergency lights in the vicinity of the area where Duck crosses Mathews Street and is again adjacent to OSU property. The pickup truck pulled into a gas station on the corner of Hall of Fame Avenue and Duck streets, immediately adjacent to the OSU campus.¹

¶ 3 After approaching the truck Hart detected an odor of alcoholic beverage on Simic's breath. Hart asked how much Simic had had to drink, and Simic responded, "Not much." Simic exited the pickup, and Hart noted that Simic needed to use the vehicle for support, and that he had bloodshot eyes and slurred speech. Simic also failed a field sobriety test. Based on Simic's driving behavior, appearance, and performance on the field sobriety test, Hart arrested him and took him to the Payne County Sheriff's office. There, Simic was given an "implied consent advisory" pursuant to 47 O.S. Supp. 2005 § 754. He refused to submit to a blood or breath test, resulting in DPS's automatic revocation of his license.

¶ 4 The parties also stipulated that in November 1991 OSU and the City of Stillwater entered into a "Police Services Agreement" (the Agreement), a copy of which was included in the record. The Agreement recognizes the jurisdiction of OSU campus police officers as extending to "all property, including streets, highways, roads, alleys, easements, and other public ways or public areas, owned, leased, or rented by" OSU, including public ways and areas "surrounded or primarily surrounded by" OSU, and "all property ... adjacent to [OSU-] owned, leased, or rented property and adjacent to property ... surrounded or primarily surrounded by [OSU-] owned, leased, or rented property." The Agreement further provides:

The OSU Police Department and its duly commissioned and certified officers are further authorized to exercise their power and authority as peace officers within the police jurisdiction of Stillwater in the following situations:

(a) When requested by any City Police Officer.

(b) When necessary to complete any enforcement activities which began on [OSU] property or property adjacent thereto.

. . .

¶ 5 Following a DPS hearing upholding the revocation, Simic sought review in district court, moving to quash the evidence based on the argument that the arrest was invalid because Hart was outside his jurisdiction. The trial court found that Hart was outside his jurisdiction; however, it upheld the validity of the arrest because Simic committed an "offense" in Hart's presence, thus entitling Hart to effect an arrest. The trial court therefore denied Simic's motion to quash and sustained DPS's six-month revocation of Simic's license.

¶ 6 Simic appeals. Simic asserts that, because Hart was outside his jurisdiction when he arrested Simic, the arrest was not valid and could not form a basis to revoke Simic's license. Simic does not challenge the fulfillment of all other conditions relevant to applying the implied consent statutes, 47 O.S. 2001 & Supp.2005 §§ 751 through 753.²

STANDARD OF REVIEW

¶ 7 When reviewing an order of an implied consent driver's license revocation, "the appellate courts may not reverse or disturb the findings below unless the lower court's determinations are found to be erroneous as a matter of law or lacking sufficient evidentiary foundation." Abdoo v. State ex rel. Dep't of Pub. Safety, 1990 OK CIV APP 2, ¶ 11, 788 P.2d 1389, 1393. Because this matter was submitted by the parties on stipulated facts, it presents for review a question of law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69. As such, "it is the duty of this court on appeal to apply the law to such facts as a court of first instance and direct judgment accordingly." Rist v. Westhoma Oil Co., 1963 OK 126, ¶ 7, 385 P.2d 791, 793. Questions of law are reviewed de novo, meaning they are subject to an appellate court's "plenary, independent, and nondeferential reexamination." Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, ¶ 7, 71 P.3d 5, 9.

ANALYSIS

¶ 8 A valid arrest is a prerequisite to the application of Oklahoma's implied consent law. Smith v. State ex rel. Dep't of Pub. Safety, 1984 OK 16, ¶ 3, 680 P.2d 365, 367 (valid arrest is necessary to invoke statutory provisions giving a police officer the right to request a driver submit to a chemical test for blood alcohol). The parties do not dispute that, generally, an officer's authority to effect a valid arrest does not extend beyond his or her jurisdiction. Staller v. State, 1996 OK CR 48, 932 P.2d 1136. They also agree that, with only a few exceptions, a law enforcement officer operating within his or her jurisdiction cannot effect a valid warrantless arrest for a misdemeanor unless the officer witnesses, first-hand, the alleged illegal act of the arrestee. Hill v. State, 1956 OK CR 65, 298 P.2d 1066; see also 22 O.S.2001 § 196.

¶ 9 It is true, as DPS argues, that Oklahoma appellate courts have held that if a police officer is outside his jurisdiction, and witnesses a public offense, the officer has the same authority as a private person to effect a "citizen's arrest" pursuant to 22 O.S.2001 § 202, under which a private person may effect an arrest for a "public offense committed or attempted" in the person's presence. See e.g., Nickell v. State, 1987 OK CR 260, 746 P.2d 1155 (Blackwell police officer observing "public offense" of theft outside his jurisdiction may make citizen's arrest); Molan v. State, 1980 OK CR 55, 614 P.2d 79 (city police officers' arrest of robbery suspects for crime committed outside the officers' jurisdiction was valid citizen's arrest where probable cause existed to make arrest); Moran v. State, 1951 OK CR, 95 Okla. Crim. 6, 237 P.2d 920 (municipal police officer who found accused outside city limits on public highway in drunken condition had right to make arrest); Mings v. State ex rel. Dep't of Pub. Safety, 1996 OK CIV APP 136, 930 P.2d 832 (city police officer had authority to make citizen's arrest of motorist based on misdemeanor driving offense that occurred outside his jurisdiction).

¶ 10 However, the Court of Criminal Appeals also has specifically held that a campus police officer may not make an arrest outside school property when he is "acting in [the] capacity" of a campus police officer. In Richardson v. State, 1973 OK CR 297, 511 P.2d 1127, the Court invalidated a campus police officer's off-campus arrest of an individual for driving under the influence. The Court held that the officer lacked jurisdiction while "acting in [the] capacity" of a campus police officer to make the arrest. Id. at ¶ 3, 511 P.2d at 1127. Similarly, in Courange v. State, 1973 OK CR 273, 510 P.2d 961, the Court invalidated an arrest by a campus police officer who stopped the defendant on an off-campus street "by means of flashing red lights, signaling said defendant to stop." Id. at ¶ 2, 510 P.2d at 961. The court held that "a campus police officer, acting in that capacity," did not have "the power and authority to make arrests on property not owned by the University." Id. at ¶ 3, 510 P.2d at 962.³

¶ 11 Applying the foregoing to the case at bar leads to the conclusion that the trial court erred to the extent it found that, even if Hart was outside his jurisdiction, he nonetheless made a valid "citizen's arrest" under 22 O.S.2001 § 202. It is undisputed that Hart stopped Simic by flashing his lights and acting in his capacity as a campus police officer. Thus, under the holdings of Richardson and Courange, Hart could not have effected a valid arrest of Simic — if Simic was indeed outside Hart's jurisdiction.

¶ 12 Our disagreement with the trial court's reasoning, however, does not require reversal of its decision if we agree with its ultimate conclusion. "It is well settled that a correct judgment will not be disturbed on review, even when the trial court applied an incorrect theory or reasoning in...