In re the Appeal of the Revocation of the Driver's License of Dungan

1984 OK 21, 681 P.2d 750, 1984 Okla. LEXIS 118
CourtSupreme Court of Oklahoma
DecidedMay 1, 1984
DocketNo. 61214
StatusPublished
Cited by26 cases

This text of 1984 OK 21 (In re the Appeal of the Revocation of the Driver's License of Dungan) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal of the Revocation of the Driver's License of Dungan, 1984 OK 21, 681 P.2d 750, 1984 Okla. LEXIS 118 (Okla. 1984).

Opinion

ALMA WILSON, Justice.

The appellant, Betty L. Dungan, appeals the decision of the District Court of Canadian County sustaining the revocation of her driver’s license by the Department of Public Safety.

Three issues are presented for review:

(1) Whether the failure of the Department of Public Safety to provide a recording of the revocation hearing was violative of appellant’s statutory and constitutional rights?
(2) Whether there was evidence at trial of a valid arrest?
(3) Whether the chemical testing of appellant’s breath was timely accomplished?

The facts are that around midnight June 11, 1983, Yukon police officer, Randy Co-well, stopped to question a group of people standing in the street on West Main in Yukon. One of the men in the group told Cowell there had been an accident north of town in which a gas line had been hit. When the officer asked who had been driving, the man, whom Cowell recognized as an off-duty policeman of the City of Piedmont, pointed to the appellant, who was standing in the group. She told Cowell that her car went off the road when it hit a puddle of water.

Officer Cowell testified that he detected an odor of alcohol about her and observed that she seemed unsteady on her feet. He asked her if someone could drive her to the police station where he would meet her after he had investigated the broken gas line. He testified that he did not then place the appellant under arrest. At approximately 1:30 a.m., while waiting for the gas company and wrecker to arrive at the scene of the accident, Officer Cowell called the police station and told Officer Kemerley to place the appellant under arrest and to give her a breathalyzer test. Before giving her the test, Kemerley read the appellant the following rights which included the statement:

“You have been arrested for driving, or being in actual physical control of a motor vehicle while under the influence of intoxicants. You are requested to submit to a test, for the purpose of determining the presence of concentration of intoxicants in your body.... You may refuse the State’s test, but as a consequence your driver’s license shall be revoked for six months by the Department of Public Safety....”

The breathalyzer test was administered at 1:47 a.m. and indicated an alcohol content of .13.

Under the authority of 47 O.S. § 754(3),1 the appellant’s driver’s license was revoked for 90 days for having a blood alcohol concentration of 0.10 or above. The appel[752]*752lant requested and was granted an administrative hearing. Title 47 O.S.Supp.1982, § 754(5), provides that the hearing shall be recorded and its scope shall cover the issues of whether the officer had reasonable grounds to believe the person had been driving while under the influence of alcohol and whether the person was placed under arrest. If the revocation is based upon a breath or blood test result, the scope of the hearing shall also cover the issues of whether: (1) the testing procedures used were in accordance with the existent rules of the Board of Tests for Alcohol and Drug Influence; (2) the person was advised that his privilege to drive would be revoked or denied if the test result reflected an alcohol concentration of ten-hundredths (0.10) or more; (3) the test result in fact reflects such alcohol concentration; and (4) the breath or blood specimen was obtained from the person within two (2) hours of his arrest.

From the hearing examiner’s sus-tention of the revocation order the appellant appealed to the District Court of Canadian County pursuant to 47 O.S.1981, § 6-211. Appeals from implied consent revocation orders are heard de novo in the district court, with the “trial de novo” being a trial of the entire case anew, both on the law and on the facts. Matter of Braddy, 611 P.2d 235 (Okl.1980). The District Court sustained the revocation of appellant’s driver’s license.

In her first assignment of error, the appellant urges she was prejudiced by the unavailability of the administrative hearing transcript in that she was precluded from impeaching the Department’s witnesses by use of prior inconsistent statements.

The Department of Public Safety asserts that the administrative hearing was recorded as required by Section 754 of Title 47 but that due to a technical failure the recording was faulty and not available. In Matter of Braddy, supra, this Court held that the inability of the Department of Public Safety to furnish a transcript of the tape-recorded hearing did not per se require dismissal of the revocation proceeding, absent a showing of prejudice. The appellant argues she was actually prejudiced because at the hearing Officer Cowell allegedly testified he did not tell Officer Kemerley to place her under arrest, but rather only told him to give her the breathalyzer test. At the trial in District Court, Cowell testified he told Officer Kemerley to place her under arrest, to read her the implied consent card, and to administer the test if she agreed. The appellant was allowed to cross-examine both Officers Co-well and Kemerley on this detail, and with the witness rule having been invoked, their statements were in accord. Additionally, the trial court itself examined Kemerley on this point, with the same result. Of significant import is the fact that when read her rights the appellant was told, “You have been arrested....”

Upon careful examination of the record, district court transcript, and briefs, we find that substantial rights of the appellant were not prejudiced by reason of the Department’s inability to furnish a transcript of the hearing.

Second, the appellant claims there was no evidence showing that a valid arrest had been made. She urges that she was never placed under custodial arrest because she voluntarily went to the police station to wait for Officer Cowell at his direction. She further refutes that the reading of the implied consent chemical test card accomplished a valid arrest.

A valid arrest is necessary under the Implied Consent Law, 47 O.S.Supp. 1982, § 751, et seq., before a police officer may request a driver of a motor vehicle to submit to a chemical test for blood alcohol. 47 O.S.Supp.1982, §§ 751, 754; White v. Oklahoma Dept. of Public Safety, 606 P.2d 1131 (Okl.1980); Marquardt v. Webb, 545 P.2d 769 (Okl.1976); Application of Baggett, 531 P.2d 1011 (Okl.1974).

Prior to the amendment of 22 O.S.1971, § 196, a peace officer’s authority to make warrantless misdemeanor arrests for driving under the influence was limited to offenses committed or attempted in his pres[753]*753ence. See, Puckett v. State, 363 P.2d 953 (Okl.Cr.1961); Farnsworth v. State, 343 P.2d 744 (Okl.Cr.1959); Hoskins v. State, 286 P.2d 293 (Okl.Cr.1955). Amendments in 1975 and 1977 expanded an officer’s authority for warrantless arrests to include instances where at the scene of an accident he has reasonable cause to believe that the party was driving a motor vehicle involved in the accident and was under the influence of intoxicants. See, Okl.Sess.Laws 1975, c.

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1984 OK 21, 681 P.2d 750, 1984 Okla. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-of-the-revocation-of-the-drivers-license-of-dungan-okla-1984.