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

• Decision Date: 20 September 2016
• Docket Number: Case No. 114,208
• Citation: 2016 OK 94,381 P.3d 726
• Parties: Kyle Trusty, Plaintiff–Appellee, v. State of Oklahoma, ex rel., Department of Public Safety, Defendant–Appellant.
• Court: Oklahoma Supreme Court

381 P.3d 726

2016 OK 94

Kyle Trusty, Plaintiff–Appellee,

v.State of Oklahoma, ex rel., Department of Public Safety, Defendant–Appellant.

Case No. 114,208

Supreme Court of Oklahoma.

FILED SEPTEMBER 20, 2016

Joanne Horn , Assistant General Counsel, Department of Public Safety, Oklahoma City, Oklahoma, Attorney for Defendant–Appellant

Charles L. Sifers , Oklahoma City, Oklahoma, Attorney for Plaintiff–Appellee

PER CURIAM

¶ 1 We retained this cause to address whether the Department of Public Safety must prove compliance with regulatory requirements for the collection of blood for a blood alcohol content test to be used against a driver in a driver's license revocation proceeding. We hold that DPS bears the burden of showing compliance with regulatory requirements for drawing blood under the implied consent statutory scheme in order to use the test results against a driver.

FACTS

¶ 2 On February 1, 2014, Oklahoma City Police Sergeant Eric Helt responded to a call for a welfare check involving a single-car accident at approximately 4:00 a.m. near the intersection of Oklahoma and Reno in Oklahoma City. The Plaintiff–Appellee Kyle Trusty's car had crashed into playground equipment. A nearby witness to the accident, a medical doctor, observed him slumped over the steering wheel and observed that he was not moving and that smoke was coming from the front of the car. She and others at the scene were able to open the door and help him out of the car. He was disoriented and passed out in an area of grass. In the doctor's opinion, he was intoxicated. When he arrived, Sergeant Helt found Mr. Trusty lying in the grass. Sergeant Helt observed Mr. Trusty's unresponsive condition and smelled alcohol on his person. He also observed a still cool, opened, can of beer in the passenger floor board of Mr. Trusty's car. Due to his condition, Mr. Trusty was transported to the emergency room by EMSA.

¶ 3 While in the emergency room, Mr. Trusty became more responsive, although his speech was slurred at first and his breath smelled like alcohol. Sergeant Helt placed Mr. Trusty under arrest for driving under the influence. Sergeant Helt read him the implied consent test and Mr. Trusty consented ¹ to a blood test for blood alcohol content. Sergeant Helt informed Mr. Trusty that if his blood alcohol level were .08 or more, his driver's license would be revoked. According to Sergeant Helt, Mr. Trusty's condition prevented him from leaving the hospital to do a breath analysis.

¶ 4 Sergeant Helt used a sealed blood testing kit, number 133285, provided by the Oklahoma City Police Department. He broke the seal on the kit and provided it to a nurse at the hospital. Sergeant Helt observed the blood draw and the person who signed the affidavit was Tam Nguyen Tran, the nurse who drew the blood. After the blood was drawn, three vials were placed back into the kit, at which time Sergeant Helt sealed the kit and placed it in the refrigerated drop in the OCPD property room. The kit was delivered by the property officer to the OCPD toxicology lab in a sealed condition and the blood was tested. The test results showed an average of .206 blood alcohol content.

¶ 5 DPS held a hearing on March 30, 2015, and and revoked Mr. Trusty's driving privileges for a period of one year. Mr. Trusty appealed the order revoking his driver's license to the Oklahoma County District Court on May 4, 2015. The trial court held a hearing on June 22, 2015. At the June 22, 2015 hearing, several witnesses were called including: Sergeant Helt; Dr. Jamie Laughy, the witness who pulled Mr. Trusty out of his car; Edward Grimes, another patrolman who investigated the accident; Matthew Scott, the forensic chemist who tested the blood at the OCPD lab; and Kevin Behrens, the Director of the Board of Tests for Alcohol and Drug Influence. The nurse, Tam Nguyen Tran, who drew the blood, was not called as a witness to verify that the tests were done in compliance with the mandated regulations for drawing blood.²

¶ 6 On July 15, 2015, the trial court filed an order in which it determined that no evidence was presented by DPS showing compliance with the regulatory requirements attendant to the withdrawal of blood for the implied consent test. The court found:

The nurse performing the blood draw in this case did not testify. Only Sergeant Helt testified, stating that he was present while the blood was being drawn. However, he did not offer any basis for the Court to find that he possessed the necessary medical training to testify to the following facts:

1. That the blood was drawn in accordance with accepted medical practices.

2. That Trusty did not suffer from hemophilia

.

3. That Trusty was not taking anticoagulant medications.

4. That the blood was withdrawn by venipuncture.

5. That the puncture site had been properly prepared.

6. That necessary precautions to maintain asepsis and avoid contamination of the specimens.

7. That the puncture site preparation was performed without the use of alcohol or other volatile organic disinfectant.³

Accordingly, the court vacated the driver's license revocation and exonerated the bond.

¶ 7 DPS appealed on August 14, 2015, arguing that the trial court abused its discretion in setting aside Mr. Trusty's driver's license revocation because its dismissal was based only on the fact that the nurse did not testify as to compliance with regulatory requirements for the withdrawal of blood. The cause was retained by the Court on October 19, 2015.

DPS BEARS THE BURDEN OF SHOWING COMPLIANCE WITH REGULATORY REQUIREMENTS FOR DRAWING BLOOD IN ORDER TO USE THE TEST RESULTS AGAINST A DRIVER

¶ 8 Any person who operates a motor vehicle in Oklahoma is deemed to have consented to blood or breath tests in the event they are arrested for driving under the influence or while intoxicated with alcohol or drugs—otherwise known as implied consent.⁴ When a law enforcement officer has determined that the blood alcohol content of an individual is to be tested, the test shall only be performed by certain medical personnel as provided by

47 O.S. 2011 § 752

, which includes registered nurses.⁵

¶ 9 The Board of Tests for Alcohol and Drug Influence was created to prescribe uniform standards and conditions for and to approve satisfactory methods, procedures, techniques, devices, equipment, and records for tests and analysis performed under the implied consent laws.⁶ To be admissible in evidence, tests administered under the implied consent laws must have been administered or performed in accordance with the rules and regulations of the Board.⁷ DPS argues that substantial compliance with the rules and regulations for drawing blood is necessary, but no direct testimony from the person who actually drew the blood is ever required. Rather, all that is required is that DPS show by a preponderance of the evidence that Mr. Trusty was driving drunk. Mr. Trusty argues that compliance with the rules and regulations for drawing blood in this type of case may not be presumed or circumstantially shown, but must be directly shown by DPS in order to use the test results to establish its case.

¶ 10 The regulation of motor vehicles on the highway is a legitimate exercise of the police powers of the state, pursuant to which the state may make all reasonable laws, rules, and regulations for the safety and protection of the public.⁸ Pursuant to a valid arrest, a police officer has the right to request that a driver of a motor vehicle submit to a chemical or breath test for blood alcohol.⁹ The statutory framework for such tests to determine whether one is driving while intoxicated is known as the implied consent law.¹⁰ Under the implied consent statutes, DPS only has the power to revoke a driver's license in three instances:

1) upon receipt of a blood or breath test and a sworn report from a law enforcement officer averring that he or she had reasonable grounds to believe the driver was driving under the influence;¹¹

2) upon receipt of a sworn report from law enforcement averring that the person refused to submit to the test and that the officer had reasonable grounds to believe the driver was driving under the influence;¹² or

3) upon receipt of “any person's record of conviction of driving while impaired.”¹³

¶ 11 “The quintessence of the consent law is that by driving a motor vehicle on the public highway, the operator consents to the taking of a chemical test to determine the alcoholic content of his blood .” Robertson v. State ex rel. Lester, 1972 OK 126, ¶ 13,501 P.2d 1099, 1102

(emphasis added). Since 1967, the Legislature has allowed for the imposition of both a criminal and a civil sanction based on a chemical test reflecting evidence of the alcohol concentration in the blood or breath.¹⁴ We said in Robertson:

‘* * * Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drunk only a little and could not be intoxicated. They protect the person who has not been drinking to excess but has an accident and has the odor of alcohol on his breath. They save a person from drunken driving charge when his conduct creates the appearance of intoxication but who actually is suffering from other causes over which he had no control.’

Robertson, 1972 OK 126, ¶ 11, 501 P.2d at 1102

(internal citations omitted).

¶ 12 In an administrative driver's license revocation proceeding the focus is “on the due process standards that are built into the regulatory scheme” under the implied consent statutes. Id.

“The Oklahoma Implied Consent Law conforms to the constitutional due process requirement by providing notice and opportunity for hearing, providing for administrative hearing subject to judicial review and applying to all licensed motorists in an identical manner.” Robertson, 1972 OK 126, ¶ 10, 501 P.2d at 1102. A person's “claim to a driver's license is indeed a protectable property interest that may not be terminated without due process guaranteed by the Fourteenth Amendment....