Slay v. STATE EX REL. DEPT. OF PUB. SAFETY, No. 91562.

CourtSupreme Court of Oklahoma
Writing for the CourtLAVENDER, J.
Citation2000 OK 11,997 P.2d 160
Decision Date22 February 2000
Docket NumberNo. 91562.
PartiesGrady SLAY, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

997 P.2d 160
2000 OK 11

Grady SLAY, Plaintiff/Appellee,
v.
STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant

No. 91562.

Supreme Court of Oklahoma.

February 22, 2000.


Earl L. Reeves, Jr., Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for the appellant.

Michael Gardner of the Law Offices of Joe Farnan, Purcell, Oklahoma, for the appellee.

997 P.2d 161
LAVENDER, J

¶ 1 The Department of Public Safety [DPS or appellant] seeks review of a district court's judgment that reversed an earlier administrative revocation of Slay's [plaintiff or appellee] driver license.1 During the review proceedings DPS introduced the "Officer's Affidavit and Notice of Revocation/Disqualification" [Affidavit], took the arresting officer's testimony and then rested its case. Slay demurred to the evidence, asserting that although a faint facsimile of a notary public's seal is apparent upon the Affidavit, it should not be admitted into evidence because the jurisdiction in which it was executed could not be ascertained. The district court agreed and sustained plaintiff's demurrer. The court also found that probable cause did not exist to arrest Slay for driving while intoxicated.

I

FACTS AND PROCEDURAL HISTORY

¶ 2 Slay was arrested on May 4, 1996 for operating a motor vehicle while under the influence of alcohol. When he was asked to submit to a chemical test to assess his sobriety, Slay refused. After a July 24, 1996 administrative hearing appellee's driver license was revoked under the terms of Oklahoma Implied Consent Law.2 Slay sought de novo review of the revocation in the district court.

¶ 3 During the May 28, 1998 review proceeding the arresting officer testified: (1) that he observed a motor vehicle being driven three feet left of the center line of public street for a distance of approximately 100 feet; (2) that after the vehicle [a truck] was stopped, the officer observed a mug containing a liquid next to the driver which Slay (upon being asked) identified as bourbon; (3) that he [the officer] observed Slay had

997 P.2d 162
slurred speech and when asked to step out of his truck, he had trouble maintaining his balance; and (4) that driver had a noticeable smell of alcohol on his breath. The officer also testified that after he had formed an opinion that Slay was intoxicated, he asked him to undergo a chemical test for alcohol consumption. Slay refused and acknowledged his refusal in writing by signing section 2 of the Affidavit. The officer also testified that he advised Slay his refusal to take the test would result in the revocation of his license. The arresting officer further testified that he signed the Affidavit in the presence of a notary public. Lastly, he testified that another officer administered a field sobriety test to assess Slay's degree of intoxication. At the conclusion of the officer's testimony, DPS rested

¶ 4 Slay objected to admission of the officer's Affidavit, asserting that because the details which are normally embossed by the notary public's seal3 on the instrument were too faint to read, the identity of the person signing as the notary public was indeterminable. Driver further argued because the law requires the Affidavit be sworn, the seal's absence constituted a fatal jurisdictional flaw.4 The district court set aside the revocation of Slay's license, finding that DPS had failed to prove by adequate evidence (1) that the "jurisdictional documentation" needed for administrative revocation was properly completed and (2) that the arresting officer had probable cause to believe that Slay was driving under the influence of alcohol.

¶ 5 The Court of Civil Appeals [COCA] reversed the district court's decision and ordered the cause remanded with instructions that an order be entered reinstating the revocation of Slay's driver license. Appellee then sought certiorari which was granted.

I

THE DOCUMENTATION SUBMITTED TO THE COMMISSIONER OF PUBLIC SAFETY IS ADEQUATE TO ESTABLISH SLAY'S NON-CONSENT TO THE STATUTORILY MANDATED CHEMICAL TEST TO ASSESS SOBRIETY

¶ 6 Essential to Slay's quest for appellate relief is his assertion that DPS failed to meet its evidentiary burden in establishing his refusal to consent to the sobriety test requested of him. To prevail State must prove its case by a preponderance of the evidence in a driver-license revocation case.5

¶ 7 The terms of § 7536 predicate driver-license revocation upon the Commissioner of Public Safety's receipt of a "sworn report of a law enforcement officer." Slay challenges the legal efficacy of the Affidavit filed in this cause, arguing that the officer's report was "insufficient" because it was not properly notarized.7 Driver asserts that the Affidavit does not contain a notary public's seal nor does it reflect the jurisdiction in which the notarial act was performed.

¶ 8 Oklahoma's extant jurisprudence recognizes that an acknowledgment is prima facie evidence of a document's execution. There is imposed upon one who seeks to impeach a certificate of...

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2 practice notes
  • Estate of John Acuff, Sr. v O'linger, 99-00680
    • United States
    • Court of Appeals of Tennessee
    • April 11, 2001
    ...P. 887. House v. Gragg, 1934 OK 601,170 Okla. 550, 44 P.2d 832, 835 (Okla. 1934); see also Slay v. State, ex rel. Dep't of Public Safety, 2000 OK 11 (Okla. In refusing to set aside deeds and mortgages on allegations of forgery, the Appellate Division of the Supreme Court of New York held: A......
  • Clawson v. State ex rel. Dps, No. 104,732.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • August 17, 2007
    ...OK CIV APP 91, 79 P.3d 1124, 1128. ¶ 13 Finally, the Oklahoma Supreme Court's decision in Slay v. State, ex rel. Dept. of Public Safety, 2000 OK 11, 997 P.2d 160 requires reversal here. In that case, the notary's seal was too faint to read. The driver complained that the affidavit therefore......
2 cases
  • Estate of John Acuff, Sr. v O'linger, 99-00680
    • United States
    • Court of Appeals of Tennessee
    • April 11, 2001
    ...P. 887. House v. Gragg, 1934 OK 601,170 Okla. 550, 44 P.2d 832, 835 (Okla. 1934); see also Slay v. State, ex rel. Dep't of Public Safety, 2000 OK 11 (Okla. In refusing to set aside deeds and mortgages on allegations of forgery, the Appellate Division of the Supreme Court of New York held: A......
  • Clawson v. State ex rel. Dps, No. 104,732.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • August 17, 2007
    ...OK CIV APP 91, 79 P.3d 1124, 1128. ¶ 13 Finally, the Oklahoma Supreme Court's decision in Slay v. State, ex rel. Dept. of Public Safety, 2000 OK 11, 997 P.2d 160 requires reversal here. In that case, the notary's seal was too faint to read. The driver complained that the affidavit therefore......

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