Westerman v. State, M--74--116

• Decision Date: 13 August 1974
• Docket Number: No. M--74--116,M--74--116
• Citation: 525 P.2d 1359,1974 OK CR 151
• Parties: Donald John WESTERMAN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1359

525 P.2d 1359

Donald John WESTERMAN, Appellant, v. The STATE of Oklahoma, Appellee.

No. M--74--116.

Court of Criminal Appeals of Oklahoma.

Aug. 13, 1974.

Rehearing Denied Sept. 18, 1974.

Jess Horn, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Amalija J. Hodgins, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Donald John Westerman, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. His punishment was fixed at imprisonment in the Oklahoma County jail for ninety (90) days and a fine of Two Hundred and Fifty ($250.00) dollars. From said judgment and sentence a timely appeal has been perfected to this Court.

As this cause requires reversal for a new trial, we do not deem it necessary to recite the facts.

Defendant's first proposition of error urges that the trial court committed prejudicial and reversible error in refusing to sustain his Motion to Suppress the results of a breathalyzer test after the State failed to show that the test was performed under methods approved by the Board of Chemical Tests for Alcoholic Influence. We agree with defendant's contention.

Title 47 O.S.1971, § 759 which established the Board of Chemical Tests for Alcoholic Influence provides in pertinent part:

'Chemical analysis of the person's blood or breath to be considered valid under the provisions of this act shall have been performed according to methods approved by the Board of Chemical Tests for Alcoholic Influence and by an individual possessing a valid permit issued by the Board for this purpose.'

In Synnott v. State, Okl.Cr., 515 P.2d 1154 (1973), this Court held that the power delegated by 47 O.S.1971, § 759, was primarily administrative and was a proper matter for delegation for the Legislature.

On April 23, 1973, the Board adopted the rules and regulations pursuant to 47 O.S.1971 § 759 which superseded and replaced rules adopted by the Board in August, 1969. The new rules were divided into two sections, one pertaining to procedures for analysis, the other setting forth maintenance requirements for breathalyzer machines.

At trial, Officer Doug Hill, a licensed breathalyzer operator with the Midwest City Police Department who had given the test to the defendant on August 19, 1973, testified to the procedure he followed in administering the test, stating that after testing the defendant's breath he ran a control test using a known value solution supplied by the Department of Public Safety. A review of Officer Hill's testimony indicates a basic compliance with operating standards as set forth in the Board's Rules and Regulations.

However, the defendant's contention is based not only on compliance with one section of the rules and regulations, but on the compliance with the regulations in toto. It is in this respect that the State failed to sustain its burden of proof.

The only indication from the record concerning whether all the rules were complied with comes from testimony given by Officer Hill, and on the basis of this testimony alone there is insufficient proof to show that the standards were met. On cross-examination, Officer Hill testified that he had followed rules on administering the test, however, he...