Trusty v. State Ex Rel. Department of Public Safety

2016 OK 94, 381 P.3d 726, 2016 Okla. LEXIS 94, 2016 WL 5110451

• Court: Supreme Court of Oklahoma
• Decided: September 20, 2016
• Docket: Case 114,208
• Status: Published

Opinions

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-ear accident at approximately 4:00 a.m. near the intersection of Oklahoma and Reno in Oklahoma City. The Plaintiff-Appellee Kyle Trusty’s Qar 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 opinión, 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 consented¹ 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 Mt, 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 healing, 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 veni-puncture.

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, ¶ 13,601 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 chinking 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.” Price v. Reed, 1986 OK 43, ¶ 11, 725 P.2d 1254, 1260.

¶ 13 Under this administrative scheme, two statutory prerequisites are fundamental to DPS’ power to revoke a license: 1) a blood or breath test report or the driver’s refusal of such a test; and 2) the officer’s sworn report that he or she had reasonable grounds to believe the driver was driving under the influence. See 47 O.S. 2011 §§ 753 & 754(C); see also Chase v. State ex rel. Dep’t of Pub-Safety, 1990 OK 78, ¶ 4, 795 P.2d 1048, 1049.¹⁵ Only upon receipt of both statutory prerequisites does DPS have the power to “revoke or deny the driving privilege of the arrested person.”¹⁶

- ¶ 14 At the DPS administrative revocation hearing,¹⁷ DPS bears the burden of proving that “the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the. influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance as prohibited by law, and whether the person was placed under arrest.”¹⁸ If the revocation of .the driver’s license is based upon a breath or blood test result, DPS must also prove:

a. if timely requested by the person, the person was not denied a breath or blood test,

b. the specimen was obtained from the person within two (2) hours of the arrest of the person,

c. the person, if under twenty-one (21) years of age, was advised that driving privileges would be revoked or denied if the test result reflected’the presence of any measurable quantity of alcohol,

d. the person, if twenty-one (21) years of age or older, was advised that driving privileges would be revoked or denied if the test result reflected an alcohol concentration of eight-hundredths (0.08) or more, and

e. the test result in fact reflects the alcohol concentration.¹⁹

Because the test results are required to be done in compliance with the Board’s regulations and procedures, the scope of the hearing must also necessarily compliance be shown for test results to be admissible into evidence.²⁰ Compliance with the testing regulations is what renders the blood or breath test admissible, and the results of the test are what make prima facie evidence that the person was under the influence.²¹

¶ 16 The applicable statutory framework requires compliance with the rules adopted by the Board. DPS is the entity charged with proving compliance with the regulatory scheme. The Oklahoma Constitution, Article 6, vests the Legislature with the power to establish agencies and to designate agency functions.²² The Legislature delegates rule-making authority to facilitate administration of legislative policy and such delegation is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation.²³ Administrative agencies create rules which are binding similar to a statute and are only created within legislatively granted authority and approval. Such rules are necessary in order to make a statutory scheme fully operative.²⁴

¶ 16 Clearly, the Legislative and Board directive is that DPS show whomever withdrew blood for a blood alcohol test complied with the Board’s regulatory requirements in order for the test results to be admitted as proof of blood alcohol level of the driver. Here, this was not done. There was no testimony or other evidence regarding the proper procedures utilized to draw the blood. This Court will not reverse or disturb a finding of a lower court if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support its findings.²⁵ Consequently, we must affirm the trial court’s determination that DPS did not show that blood was drawn in accordance of the rules and regulations of the Board. DPS cannot prove it properly revoked Mr. Trusty’s driver’s license under the implied consent statutes.²⁶

CONCLUSION

¶ 17 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. 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, following statutory and regulatory mandated procedures. The revocation in this ease is based on a chemical test, not the refusal of the operator to submit to such a test. In this ease, where DPS relied on a blood test to substantiate the revocation, the trial court correctly found that DPS failed to prove that the blood test performed on Mr. Trusty was performed in accordance with the rules and regulations of the Board under 47 O.S. 2011 § 752(H) and OAC § 4020-1-8 (2014), making the blood test inadmissible. The Legislative and Board directive requires DPS show compliance with the regulatory requirements for drawing blood in order for the test results to be admitted as proof of blood alcohol level of the driver. Without an admissible blood test, DPS cannot prove the statutory requirements of § 754(F)(1), and there is no evidence DPS could present on remand to cure these evidentiary defects.

AFFIRMED

¶ 18 Reif, C.J., Combs, V.C.J., Watt, Colbert, Gurich, JJ., concur. ¶ 19 Kauger (by separate writing), Winchester, Edmondson, Taylor, JJ., concur in parj; and dissent in part.

1 . The implied consent test request utilized by the Oklahoma City Police department is included in the record as Exhibit No. 3, and it provides:

1. You have been arrested and you are requested to submit to a test or tests to determine the presence and/or concentration of intoxicants in your body.

2. The state’s test will be a [insert ONE word "breath" OR the word "blood”] test. If a blood test is performed, it will be done by . approved medical personnel.

3. Once you complete the state's test, you may have an additional test at your own expense, provided that a sufficient quantity of any specimen obtained shall be available to the state for testing.

4. You are not entitled to consult with an attorney prior to making your decision whether or not to submit to the state's tests.

5. You may refuse the state's test, but as a consequence your driver's license will be revoked or denied by the Department of Public Safety.

6. If you are age 21 years or older and the test result is 0.08 or more alcohol concentration, your driver's license will be revoked or denied by the Department of Public Safety. If you are under age 21 and the test result is 0.02 or more alcohol concentration, your drivér's license will be revoked or denied by the Department of Public Safely.

7. If your driver's license is revoked or denied by the Department of Public Safety, you may be required to have an ignition interlock installed.

8. Will you take the state's test?

Transcript of Proceedings, Ex. 3 (June 22, 2015).

2 . The regulation for the collection, transfer, and retention of specimens of blood is found in the Oklahoma Administrative Code, 40:20-1-3, and it provides in part:

(a) Withdrawal and collection of blood. Withdrawal and collection of specimens of blood obtained from living human subjects under the provisions of Title 47 and Title 3 and Title 63, Oklahoma Statutes shall be performed as set forth in this Section. The entire process shall be carried out with full regard for the health and safety of tire tested persons, and so as to maintain properly the identity, integrity, and composition of such blood specimens.

(1) Collection of blood specimens—general conditions.

(A) Blood shall be withdrawn in accordance with accepted mediqal practices, in an appropriate hospital or medical or clinical environment, and by persons authorized by Title 47, Section 752 of the Oklahoma Statutes, to withdraw blood.

(B) No blood shall be knowingly withdrawn from any person with hemophilia or from any person who is' taking anticoagulant medication(s) under'the direction of a licensed healing arts practitioner.

(2) Procedures and techniques, precautions.

(A) Blood shall be withdrawn by venipunc-ture, after appropriate preparation of the puncture site(s), and with necessary precautions to maintain asepsis and avoid contamination of the spécimens. Puncture site preparation and skin cleansing shall be performed without the use of alcohol or other volatile organic disinfectant.

(B) All blood specimens shall be collected directly in or immediately deposited into suitable clean, sterile, dry containers with inert closures, which contain adequate and appropriate anticoagulant(s) and preservative(s) in accordance with recognized procedural standards.

(C) All disposable materials, supplies, and paraphernalia shall not be reused for the withdrawal and collection or storage of blood specimens. All such materials, supplies, and paraphernalia other than required records or those required to be stored or retained or forwarded for evidentiary or other reasonable purposes shall be-safely disposed of as soon as practicable after use. All materials, supplies, and paraphernalia with which the tested subject will or may come into physical contact shall be stored, handled, and used in a properly safe and sanitary manner.

(D) Each tube or other vessel containing a blood specimen shall be placed into a sealed envelope or other suitable sealed container or enclosure, approved by the State Director of Tests for Alcohol and Drug Influence, and bearing or containing at least the following information:

(i) Full name of the subject from whom the blood specimen was obtained

(ii) Date, time, and location where the blood specimen was obtained

(iii) Name of the law enforcement agency (and unit thereof, if needed for further identification) responsible for obtaining and processing the blood specimen

(iv) Legible signature and title of the qualified person who withdrew the blood specimen....

Okla. Admin. Code § 40:20-1-3 (2014).

3 . Journal Entry at 3 (July 15, 2015).

4 . Title 47 O.S. 2011 § 751 provides in part:

A. 1. Any person who operates a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multifamily dwellings within this state shall be deemed to have given consent to a test or tests of such person’s blood or breath, for the purpose of determining the alcohol concentration as defined in Section 756 of this title, and such person's blood, saliva or urine for. determining the presence or concentration of any other intoxicating substance therein as defined in this section, if arrested for any offense arising out of acts alleged to have been committed while the person-was operating or in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, or if the person is involved in a traffic accident that resulted in the immediate death or serious injury of any person and is removed from the scene of the accident to a hospital or other health care facility outside the State of Oklahoma before a law enforcement officer can effect an arrest....

5 . Title 47 O.S. 2011 § 752 provides in part:

A. Only a licensed medical doctor, licensed osteopathic physician, licensed .chiropractic physician, registered nurse, licensed practical nurse, physician's assistant, certified by the ■State Board of Medical Licensure and Supervision, an employee of a hospital or other health care - facility authorized by the hospital or health care facility to withdraw blood, or other qualified person authorized by the Board of Tests for Alcohol and Drug Influence acting at the request-of a law enforcement officer may withdraw blood for purpose of having a determination made of its concentration of alcohol or the presence or concentration of other intoxicating substance. Only qualified persons authorized by the Board may collect breath, -saliva or urine, or’administer tests of breath under the provisions of this title... ’.

6 .. See 47 O.S. .Supp. 2015 § 759.

7 .Title 47 O.S. 2011 § 752 provides in part:

H. Tests of blood or breath for the purpose of determining the alcohol concentration thereof, and tests of blood, saliva or urine for the purpose of determining the presence or concentration of any other intoxicating substance therein, under the provisions of this title, whether administered by or at the direction of a law enforcement officer or administered independently, at the option of the tested person, on the excess specimen of such person’s blood, breath, saliva or urine, to be considered valid and admissible in evidence under the provisions of this title, shall have been administered or performed in accordance with the rules and regulations of the Board, or performed by a laboratory that is exempt from the Board rules pursuant to Section 759 of this title. ...

8 . Tapp v, Perciful, 2005 OK 49, ¶21, 120 P.3d 480, 483; Harkrider v. Posey, 2000 OK 94, ¶ 14, 24 P.3d 821, 828.

9 . White v, Okla. Dep't of Pub, Safety, 1980 OK 21, II6, 606 P.2d 1131, 1132.

10 . 47 O.S.2011 §§ 751-761.

11 . 47 O.S. 2011 § 754(C).

12 . 47 O.S. 2011 § 753.

13 . 47 O.S. 2011 § 761. However, DPS "shall not suspend such privilege pursuant to this subsection if said person’s driving privilege has been revoked based upon a test result or test refusal pursuant to Section 753 or Section 754 of this title arising from the same circumstances which resulted in the conviction." Id.

14 . 1967 Okla. Sess. 135.

15 . Upon a blood or breath test reflecting an alcohol concentration over the legal limit, or upon refusal of such, a driver's license stands revoked. The driver’s privilege is forfeited, the license is seized, and the driver is issued a receipt which acts as a temporary license for 30 days. 47 O.S. 2011 § 754(A)-(B).

16 . See 47 O.S. 2011 § 754(C). In 1990, in Chase v. State ex rel. Dep’t of Pub. Safety, 1990 OK 78, ¶ 4, 795 P.2d 1048, 1049, this Court, in an opinion by Justice Opala, specifically noted that "[t]wo statutory prerequisites" were required in order for DPS to properly revoke a driver’s license—“a written report that the driver’s breath test showed an alcohol concentration of a least 0.10” (now .08) and "the enforcement officer's sworn report 'that he had reasonable grounds to believe the arrested person had been driving or was ,in actual physical control of a motor vehicle upon the public roads .,. while under the influence of alcohol.' ’’ In that case, the Court found that the sworn officer's affidavit was absent from the record, and as such, there was a "patent deficiency in the statutorily required DPS material." Id, ¶5, 795 P,2d at 1050. Such absence made "the Department's revocation order vulnerable to invalidation, cm timely appeal, for failure to meet the minimum legislatively prescribed standards for the DPS paperwork on which its administrative action must be rested. ” Id.

17 . If a driver is unsatisfied with the administrative ruling after the hearing, he or she may appeal the administrative order to the district court. See 47 O.S. 2011 § 6-211. The District Court's review of a driver's license revocation is conducted de novo, " ‘with the "trial de novo” being a trial of the entire case anew, both on the law and on the facts.' ” Muratore v. State ex rel. Dep't of Pub. Safety, 2014 OK 3, ¶ 5, 320 P.3d 1024, 1029.

18 . 47 O.S. 2011 § 754(F).

¹⁹

20 . See also 47 O.S. 2011 § 752(H) ("Tests of blood or breath for the purpose of determining the alcohol concentration thereof, and tests of blood, saliva or urine for the purpose of determining the presence or concentration of any other intoxicating substance therein, under the provisions of this title, whether administered by or at the direction of a law enforcement officer or administered independently, at the option of the tested person, on the excess specimen of such person's blood, breath, saliva or urine, to be considered valid and admissible in evidence under the provisions of this title, shall have been administered or performed in accordance with the rules and regulations of the Board, or performed by a laboratory that is exempt from the Board rules pursuant to Section 759 of this title.”).

21 . 47 O.S. 2011 § 756.

22 . Title 75 O.S. Supp. 2013 § 250.2(A) provides: A. Article V of the Oklahoma Constitution vests in the Legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article VI of the Oklahoma Constitution charges the Executive Branch of Government with the responsibility to implement all measures enacted by the Legislature.

23 . Title 75 O.S. Supp. 2013 § 250.2 (B) provides:

B. In creating agencies and designating their functions and purposes, the Legislature may delegate rulemaking authority to executive branch agencies to facilitate administration of legislative policy. In so doing, however, the Legislature reserves to itself:

1. The right to retract any delegation of rule-making authority unless otherwise precluded by the Oklahoma Constitution;

2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rulemaking authority;

3. The right and responsibility to designate the method for rule promulgation, review and modification;

4. The right to approve or disapprove any adopted rule by joint resolution; and

5. The right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines such rule to be an imminent harm to the health, safety or welfare of the public or the state or if the Legislature determines that a rule is not consistent with legislative intent.

24 . See Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518, 523 ("Pursuant to the Administrative Procedures Act, 75 O.S. 2001 §§ 250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law.”).

25 . Smith v. State ex rel. Dep’t of Pub. Safety, 1984 OK 16, ¶7, 680 P.2d 365. A remand in today's case is an exercise in futility -as DPS cannot prove, without an admissible blood test, that it properly revoked Mr. Trusty’s driver's license under the implied consent statutes. Evidence of whether the officer had reasonable grounds to believe a person was driving under the influence cannot, alone, sustain the revocation under the implied consent procedure.

26 . Bryant v. Comm'r of the Dep't of Pub. Safety, 1996 OK 134, 937 P.2d 496, has not been followed in any case involving the implied consent statutes. As recently as February 8, 2016, this Court released for publication and accorded precedential value to an opinion from COCA in Shoptaw v. State ex rel. Dep't of Pub. Safety, 2016 OK CIV APP 32, 370 P.3d 1217. In that case, in an opinion by Judge Wiseman, COCA vacated the driver's license revocation based on an invalid supplemental officer's affidavit under § 754(C). In Muratore v. State ex rel. Dep't of Pub. Safety, 2014 OK 3, 320 P.3d 1024, this Court, with a 6-3 majority, vacated a driver's license revocation because DPS had not carried its burden of proving that a valid breathalyzer test had been performed on a properly maintained testing device under § 754(F)(1) and § 752(H). Notably, after this Court found the breath test invalid arid inadmissible, we affirmed the trial court's decision to set aside the revocation. See also Roulston.v. State ex rel, Dep't of Pub. Safety, 2014 OK CIV APP 46, 324 P.3d 1261; Tucker v. State ex rel, Dep’t of Pub. Safety, 2014 OK CIV APP 45, 326 P.3d 542; Andrews v. State ex rel. Dep't of Pub. Safety, 2014 OK CIV APP 19, 320 P.3d 27; Brockman v. State ex rel. Okla. Dep’t of Pub. Safety, 2013 OK CIV APP 48, 301 P.3d 896; State ex rel. Dep’t of Pub. Safety v. Kelley, 2007 OK CIV APP 99, 172 P.3d 231.

Additionally, 47 O.S. 2011 § 757, which does "not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence,” speaks directly to only one element of DPS’ case—whether the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance. But evidence of whether the officer had reasonable grounds to believe a person was driving' under the influence cannot, alone, sustain the revocation under the implied consent procedure.