Childs v. State7/13/1999
47 O.S. Supp. 1992 § 752(F). As a result, the opinion of the Court of Civil Appeals is vacated and the administrative revocation of Childs' license is affirmed.
The law requires equal treatment of those things which are in fact equal. United States Constitution, Amendment XIV and Oklahoma Constitution, Art. 2, §§ 2 & 6; Bowlin v. Alley, 1989 OK 66, 773 P.2d 365, 368 (citing Tigner v. Texas, 310 U.S. 141, 147, 60 U.S. 879, 882, 84 L.Ed. 1124, 1128 (1940)); Brown v. Lillard, 1991 OK 74, 814 P.2d 1040, 1041 (citing Kirk v. Bd. Of County Comm'rs, 1979 OK 80, 595 P.2d 1334, 1336). However, the law will not presume two things to be equal. The onus is on the party urging the violation of the Equal Protection Clause. It is this party who must present the court with evidence that unequal treatment is being exacted upon persons who are equal and therefore required to be treated the same. Bowlin v. Alley, 1989 OK 66, 773 P.2d 365, 368 (citing Tigner v. Texas, 310 U.S. 141, 147, 60 U.S. 879, 882, 84 L.Ed. 1124, 1128 (1940)); Brown v. Lillard, 1991 OK 74, 814 P.2d 1040, 1041 (citing Kirk v. Bd. Of County Comm'rs, 1979 OK 80, 595 P.2d 1334, 1336). "Under equal protection analysis, legislative enactments ordinarily are presumed to be valid." Fair School Finance Council v. State, 1987 OK 114, 746 P.2d 1135, 1143 (citing McGowan v. State of Maryland, 366 U.S. 420, 424 - 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)); Wilson & Co. v. Hickey, 186 Okla. 324, 97 P.2d 564, 566 (1940) ("A presumption of constitutionality is raised by the mere enactment of a statute."). Childs has not offered this Court a record which could permit us to overcome this presumption.
Childs' entire argument is premised upon the assumption that all tests to conduct blood alcohol level are equal and therefore any safeguards afforded in one testing procedure must be afforded in all the testing methods, including the collection of a sample for independent testing. However, Childs does not support this assertion with evidence in the record. While Childs makes some reference to the sameness of the two breath testing methods (intoxilyzer and breathalyzer) in his briefs, there is nothing by way of testimony, stipulation or exhibits to support the conclusory statements made in the briefs.
This Court cannot presume the intoxilyzer and breathalyzer are equal machines and therefore cannot assume individuals tested with the different machines are equal and entitled to the same testing process. In fact, the United States Supreme Court's decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct 2528, 81 L.Ed.2d 413 (1984), indicates the intoxilyzer is extremely accurate, drastically reducing the chances that an independent test would prove exculpatory:
"In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence." Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534.
The U.S. Supreme Court makes several references to malfunction protections built into the intoxilyzer testing procedure, including the analysis of two closely correlated breath samples and systematic purging of the machine to ensure no alcohol remains from a previous test. Id.
In the agreed statement of facts, Childs in no way contests the accuracy or performance of the test given him. Childs asserts that he did not stipulate to the correctness of the results. However, he did stipulate to the following:
"Childs does
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