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Blanque v. State ex rel. Department of Public Safety
, No. 100,751 (Okl.Civ.App., Div.II, February 8, 2005) (Unpublished): WINNER!!! Mr. Blanque requested a DPS administrative hearing on his license revocation. Unfortunately (or perhaps fortunately) for him, the arresting officer in his case was on active military duty in Iraq, had no return date, and the hearing officer continued the hearing indefinitely. District court dismissed the revocation and ordered the hard license returned. Appeals court agreed, holding: 1) the district court had jurisdiction to set aside the revocation under 47:6-211(D), even though DPS made no final decision on the merits; 2) exhaustion of administrative remedies was unavailable in light of the indefinite postponement; and 3) the district court was correct in dismissing the revocation both because DPS violated its own rules (OAC 595:1-3-19) regarding continuances and denied Mr. Blanque due process. Stephen Fabian and Mike O'Brien (OKC) continue to torture DPS
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McLean v. State ex rel. DPS,
No. 101,132 (Okla. Civ. App., Div. IV, April 19, 2005) (Unpublished): DPS Winner!!! Stillwater, Oklahoma at 3:00 a.m. on a Sunday (read: Saturday night), heavy traffic of OSU students lined up at Whataburger to satisfy the munchies. McLean drives up, but notices the other 15 cars in front of her. Cops were there before she showed up, just monitoring the madness. McLean backs up slowly, not wanting to wait, but apparently didn't notice the other car that pulled in behind her. Still, she backs up very slowly, as does the car behind her, giving her room, and she pulls out of the lane and starts to exit the parking lot. Oh, yeah, while she's backing up, the cops yelled and waved their arms trying to warn McLean that she was going to back into the other car, but they did not get her attention. She is popped before she ever gets to leave the parking lot and blew a .15. DPS hearing held. License revoked. Trial de novo in District Court where only issue was whether the initial stop was valid and the only witnesses were the cops. Revocation set aside and affirmed! No valid basis to stop the driver as no traffic infraction occurred. Sharp lawyering here in developing the record below; as I don't think the appeals court would have reversed if the trial court would have upheld the revocation.
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Tripp v. State, ex rel. Department of Public Safety,
No. 101,803 (Okl.Civ., Div. III, June 1, 2005) (ordered released for publication): Set-aside Order reversed. Issue is the legality of the traffic stop when cop observed car leave a restaurant at 2:00 a.m. and not signal when changing lanes. State statutes require the signal for lane changes; but not necessarily for turns (only when traffic is affected). The Court held there was no conflict and that signal to change lanes is required under the statute.
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Hollis v. State ex rel. Department of Public Safety
2008 OK 31 (April 1, 2008): DUI; DPS Administrative Hearings: The District Court set aside the DL revocation on the basis that Hollis was incapable of providing a knowing and conscious refusal to the State's test because of extreme mental distress (his son, who had been in a coma for one year, had spoken the day before Hollis was arrested; but his wife called the day Hollis was arrested and told him that the boy's heart rate was high and that he needed to hurry home where his son was). The only evidence presented was testimony by the arresting officer and Hollis. The Supreme Court REVERSED, holding that a licensee cannot be allowed to use an emotional distress claim without supporting medical testimony when there is no obvious medical infirmity. Thus, Hollis failed to produce sufficient credible evidence that he was mentally incapable of giving a knowing and conscious refusal. NOTE: In a footnote (no. 8) the Court stated: "We do not decide here today that expert medical testimony must be presented in all cases in order to satisfy the licensee's burden. Indeed, whether such testimony is necessary is a matter to be determined by the facts of a particular case."
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Smith v. State, ex rel. Department of Public Safety,
No. 101, 651 (Okl.Civ., Div. III, June 1, 2005) (ordered released for publication): Another horrible decision reversing a District Court set-aside Order. Smith failed to signal when making a right turn. Cop stopped her, found valid license and current insurance, issued a warning and let her go. Then the inevitable request to search and purported consent from Smith. As noted above, a turn signal is not required by state statute if no traffic is affected and the testimony at trial was that no traffic was affected--the cop admitted it. The stop was effected apparently under a city of Edmond ordinance that did not require that traffic be affected. The Court held the city ordinance was invalid and pre-empted by state statute (obviously). BUT, at the time of the stop the ordinance was presumptively valid and since there was no precedent holding otherwise, the traffic stop was valid. Ugh. Apparently, the cops get a free shot at it. NOTE: This case is particularly bad because the cop testified that he followed Smith with the intention of looking for probable cause to stop her.
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Hammons v. State ex rel. DPS,
No. 102,144 (Okl.Civ., Div. I, July 8, 2005) (Unpublished): My favorite opinion of the week (other than my own!). DUI refusal case where cop testified that he stopped Hammons because the taillights of his vehicle were not illuminated (although the headlights worked). Hammons arrested for DUI and refused the test. No citation given for driving w/o taillights. When Hammons was released later that day, he took his car to a mechanic who prepared a report, admitted by the trial court, establishing that the taillights were working fine(!) The only issue was the validity of the traffic stop. The trial court, Hon. Robert E. Davis, apparently chose to disbelieve the cop and set aside the revocation order(!) You can almost hear the DPS lawyer whining in the appellate court, "but, but, but, the officer testified that the taillights were not working, honest." The appeals court responded thusly, "Department's argument appears to be based on a belief that the officer's testimony was entitled to presumptive veracity and that the burden was then cast on Hammons to prove that the lights were functioning at the time in question. No authority is cited to support such an approach." Indeed!
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Wolfe v. State ex rel. DPS,
No. 102,131 (Ok.Civ., Div. IV, September 6, 2005) (Released for Publication): Driver's license revocation case where Wolfe refused to take the test and his license was revoked. On appeal, Wolfe argued that the machines available for the breath test were not approved (Guth 2100 simulators); therefore, his refusal was not valid to trigger the revocation because the result of any test could not have been used as a basis to revoke his license. [The machines were Guth 2100s; but for some reason the opinion refers to them as "Garth 2100"] The Court held that the refusal itself triggers the revocation under the statute; not the actual test result.
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Charlson v. State ex rel. Department of Public Safety,
2005 OK 83 (November 15, 2005): This is the Guth case where the Oklahoma Supreme Court holds that the obvious scrivener's error in the Oklahoma Register may be corrected by the Court and thus the Guth simulator is now apparently authorized for use in breath tests even in cases where it was not officially adopted. The court does not discuss the effect of 75 O.S. 250.7 which would appear to be directly on point and control this issue, but hey, it's just a rule of law, right? Why be bothered with it? The court clearly issued a policy-driven opinion that sticks the citizen with the effects of the government screw-up rather than the government. NOTE: The good news is that I have learned from several very reliable sources that DPS will not re-visit cases already decided. This means that if you had a Guth case and won on that issue, your client is safe and DPS will not attempt to re-open the case. I guess that's some consolation.
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Hollis v. State ex rel. Department of Public Safety,
No. 102,072 (Okl.Civ., Div. I, November 14, 2005) (Released for Publication): The District Court directed a verdict in the favor of Hollis and set aside the revocation. The appellate court reverses in this case where the sole witness was the arresting officer who testified that he read to Hollis the implied consent form five times but Hollis never responded when asked if he would take the State's test. Hollis was conscious and had no readily apparent physical or mental disabilities other than the fact that he was crying most of the time. This case is very instructive because the appellate court held that when the State presents a prima facie case of refusal (even by silence) the burden shifts to the licensee to prove that he was not capable of refusing.
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Rebecca A. Hicks v. State, ex rel. Department of Public Safety,
No. 102,815 (Okl.App., Div. IV, March 14, 2006) (unpublished): Noteworthy case upholding a driver's license suspension. Hicks was arrested and taken to the station house for the breath test. She testified that she requested her reading glasses so she could actually read the implied consent form being read to her by the officers. The officers refused to provide her glasses or to allow her to read the form, so she refused to take the test. HELD: 47 O.S. 754 mandates only that a motorist be informed of the consequences of refusal; it does not grant a right to a motorist to read the form. Enterprising argument, but to no avail.
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Michael W. Boler v. State of Oklahoma ex rel. DPS,
No. 102,438 (Okl.Civ.App., Div. II, March 28, 2006) (not for publication): Bad driver's license case but instructive. The trial court set aside the revocation based on a refusal on the basis that the officer did not inform Boler that he could obtain a separate test of the Intoxilyzer with 60 days of the test date pursuant to 47 O.S. 754(F)(1)(d). This specific language was not included in the implied consent form read by the officer. The Court of Appeals held that section 754(F)(1)(d) did not apply because Boler refused the test, thus the revocation was based upon a refusal and not a breath or blood test. Novel argument but rejected by the Court.
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Maretha Kerezman v. State of Oklahoma, ex rel. Department of Public Safety,
No 102,978 (Okl.Civ., Div. IV, September 19, 2006 (not for publication): DUI: DPS Administrative Hearings: In this DPS case, Kerezman was stopped for driving erratically and, although she did not have any odor of alcohol on her breath, the officer determined that she was driving under the influence of something and arrested her. She refused to take a blood test. She claimed to not understand the consequences of a refusal because the officer would not provide clarification beyond the words on the form. The appellate court upheld the revocation in this case and forcefully made the point that an officer is not required to "clarify" anything beyond a plain explanation of the reason for the test, the yes or no decision whether to take the test, and the revocation of the DL for refusing to take the test.
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State of Oklahoma, ex rel., Department of Public Safety v. Shaun Eric Kelley,
No. 103,942 (Okl.Civ., Div. III, August 10, 2007) (Released for Publication): DUI; DPS Administrative Hearings: Kelley, apparently homeless and living in his car, went to a bar in Edmond, got intoxicated, and then went to sleep in the back of his car (where he lived). There was no evidence that he drove the car. He was arrested for APC and DPS revoked his license for 180 days. Judge Croy (Oklahoma County) set aside the revocation order and the Court of Appeals affirmed, holding that these facts present one of "those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily 'sleeping it off' in his vehicle." The Court canvassed the extant Oklahoma jurisprudence on this topic and the key difference in this case was that Kelley was sleeping in the back seat as opposed to behind the wheel, and also that there was no evidence that Kelley drove from the bar (he was arrested in the parking lot of the bar).
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Hensley v. State of Oklahoma ex rel. Department of Public Safety,
No. 105,606 (Okl.Civ.App., Div. II, July 8, 2008) (Not for Official Publication): DUI; DPS Administrative Hearings: Hensley was arrested for DUI and refused the test. The district court sustained the revocation, but modified the license so he could drive with the ignition interlock device. Hensley requested a new trial on the basis that the testimony from the officer was inconsistent and that his arrest was unlawful. The panel AFFIRMED in this short opinion, but I included it because it contains a concise statement of the standards governing motions for new trial in these cases.
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