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Capstick v. State ex rel Department Of Public Safety7/27/2000
Licensee Harvey Capstick appeals the district court order that sustained the administrative revocation of his driver's license by the Department of Public Safety. Mr. Capstick's license was revoked on the ground that he refused the breath test requested by the Bristow police officer who arrested him for DUI. Mr. Capstick admits that he refused the test when it was offered by the Creek County deputy sheriff who was called to operate the breathalyzer. Mr. Capstick has nonetheless contended both in the district court and here on appeal that he effectively recanted his refusal under Baldwin v. State ex rel. Dept. of Public Safety, 1993 OK 31, 15, 849 P.2d 400, 406.
In Baldwin, the supreme court of Oklahoma held that "a motorist has not refused the test mandated by the Implied Consent Law if the assent is timely and given unequivocally [after a previous refusal]." Id. The supreme court further adopted the five-element test for timeliness provided by the Supreme Court of Kansas in Standish v. Department of Revenue, 683 P.2d 1276, 1280 (1984). Under this test, to be effective, the subsequent consent must be made:
within a very short and reasonable time after the first prior refusal; when a test administered upon the subsequent consent would still be accurate; when testing equipment is still readily available; when honoring the request will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.
The Department of Public Safety maintains that Mr. Capstick failed to meet three of the five requirements established by the Baldwin case for an effective withdrawal of his refusal. The Department of Public Safety first argues that Mr. Capstick did not withdraw his refusal within a reasonable time under the circumstances. The Department points out that the deputy sheriff who was asked to administer the test went off-duty and had gone home by the time Mr. Capstick withdrew his refusal. The Department of Public Safety also cites the deputy's off-duty status as indicating that his return to "overtime duty" would involve the type of inconvenience and expense that makes withdrawal of refusal ineffective. Lastly, the Department of Public Safety stresses that Mr. Capstick's own testimony indicates he was not in the custody and under the observation of the arresting officer the whole time since his arrest. There was no dispute that the arresting officer was the only Bristow police officer on duty and that he left Mr. Capstick in the custody of his dispatcher to answer a call between the refusal and the withdrawal of refusal.
The essence of Mr. Capstick's position here on appeal is that there was substantial compliance with the Baldwin factors. The gist of his position is that (1) the period of time between his initial refusal and the withdrawal of his refusal was not objectively an unreasonable period of time; (2) the deputy sheriff's return to "overtime" duty would not have involved "substantial" inconvenience or expense; and (3) his booking into jail within view of a dispatcher was sufficient observation. Mr. Capstick has basically invited this court to reweigh the evidence and substitute his view of the evidence for that of the trial court. We decline to do so for two reasons.
First, " n appeal from orders of implied consent revocations, appellate courts may not reverse or disturb the findings below, unless the lower court's determinations are found to be erroneous as a matter of law or lacking sufficient evidentiary basis." Faulkner v. State ex rel. Dept. of Public Safety, 1996 OK CIV APP 66, 4, 92
Page 1 2 Oklahoma DUI Attorneys
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