White v. Oklahoma Dept. of Public Safety

• Decision Date: 12 February 1980
• Docket Number: No. 51612,51612
• Parties: Wilbur Ray WHITE, Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Oklahoma Supreme Court

Page 1131

606 P.2d 1131

1980 OK 21

Wilbur Ray WHITE, Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 51612.

Supreme Court of Oklahoma.

Feb. 12, 1980.

Appeal from judgment of the District Court of Oklahoma County, Oklahoma, Honorable Jack R. Parr, District Judge, which affirmed order of Department of Public Safety revoking driver's license of appellant for refusal to submit to chemical testing for alcohol pursuant to provisions of Implied Consent Law, 47 O.S.Supp.1975, § 751, et seq.

AFFIRMED.

Jay F. McCown, Oklahoma City, for appellant.

Charles Hill, Associate Counsel, Dept. of Public Safety, Oklahoma City, for appellee.

SIMMS, Justice:

Appeal from judgment of the District Court of Oklahoma County which affirmed an order of the Oklahoma Department of Public Safety revoking the driver's license of appellant pursuant to Oklahoma's Implied Consent Law, 47 O.S.Supp.1975, § 751, et seq.

Appellant was stopped while driving his car after an Oklahoma City Police Officer observed appellant traveling ten to fifteen miles per hour in a thirty mile per hour zone and weaving in the roadway although the automobile did not cross the center line of the highway. The officer observed the appellant's automobile being driven in this fashion for approximately a block and a half prior to stopping appellant.

The officer then approached the car, asked for appellant's driver's license, and informed appellant why the officer had stopped the car. The officer testified there was strong odor of alcohol on appellant's breath, his eyes were bloodshot, and his speech was slurred. Following these observations, the officer asked appellant to step back to the police car whereupon the officer observed appellant weaving while he walked. The officer testified he then formed the opinion that appellant was under the influence of alcohol, whereupon he placed appellant under arrest.

Upon being asked to submit to chemical testing for alcohol, appellant refused. Proceedings were then commenced to revoke appellant's driver's license.

Appellant's single proposition on appeal is that a valid arrest is essential to invoke the Implied Consent Law and that under the findings of the district court, no valid arrest occurred because of findings in the court's journal entry that no misdemeanor had been committed in the presence of the arresting officer at the time appellant's vehicle was stopped.

Oklahoma's appellate courts have consistently held that a valid arrest is essential to invoke provisions of the Implied Consent Law giving a police officer the right to request a driver of a motor vehicle to submit to a chemical test for blood alcohol. 47 O.S.Supp.1975, §§ 751, 754; Application of Baggett, Okl., 531 P.2d 1011 (1974); Application of Hendrix, Okl.App., 539 P.2d 1402 (1975); Marquardt v. Webb, Okl., 545 P.2d 769 (1976).

In deciding the question of the legality of the arrest under the facts as above described, we find the cases of Moore v. State, Okl.Cr., 306 P.2d 358 (1957); And Stewart v. State, Okl.Cr., 395 P.2d 346 (1964) dispositive. It was held in Moore, at p. 360, that "(s)peeding, Driving at an unusually slow rate, or from one side of the road to the other are certainly grounds for an officer to stop the motorist involved, whatever the reason for such...