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Webb v. State ex rel Dept. of Public Safety10/20/1992
As Corrected October 21, 1992.
Certiorari Denied February 3, 1993.
DWAYNE R. WEBB, APPELLEE,
v.
STATE OF OKLAHOMA, EX REL. DEPARTMENT OF PUBLIC SAFETY, APPELLANT.
Appeal From the District Court of McClain County; Noah Ewing, Judge.
Michael O'Brien, Dept. of Public Safety, Oklahoma City, for appellant.
Joe Farnan, Purcell, for appellee.
REVERSED.
MEMORANDUM OPINION
The opinion of the court was delivered by: BAILEY, Presiding Judge.
Appellant, State of Oklahoma, ex rel. Department of Public Safety (DPS), seeks review of the Trial Court's order vacating DPS's order revoking the driver's license of Appellee, Dwayne R. Webb (Webb), by which the Trial Court determined the order of revocation, based on "untrue and obsolete" implied consent warnings given to Webb by the arresting officer, to be "unfair and unconstitutional." In this appeal, DPS asserts (1) misapplication of law by the Trial Court, (2) adequate evidentiary support for the order of revocation, and (3) failure of Webb to raise his constitutional challenge in a timely and specific manner.
At trial, Webb stipulated:
- That a Purcell police officer arrested Webb for driving under the influence of intoxicating liquor;
- That the officer had reasonable grounds to believe that Webb was driving a motor vehicle under the influence of intoxicating liquor;
- That the officer informed Webb of his rights, obligations and liabilities under Oklahoma implied consent law arising from submission to/refusal of chemical testing for blood alcohol;
- That the officer requested and Webb consented to a blood test for such purpose; and
- That a duly qualified chemist for the Oklahoma State Bureau of Investigation (OSBI) performed a proper analysis of the blood sample obtained, revealing a test result in excess of .10 gr./210 liters.
The sole issue submitted to the Trial Court for resolution thus concerned effect of the implied consent advisory given by the arresting officer to Webb, informing Webb (1) that the test would be given at no cost to him, and (2) that Webb had no right to consult with an attorney before making a decision to submit or refuse to submit to testing.
Upon the stipulations of Webb, and presentation of evidence by the parties, the Trial Court vacated the order of revocation concluding as a matter of law:
8. That the chemical test advisory/implied consent request given herein is in conflict with 20 O.S. § 1313.2 which requires the Court Clerk to collect $150.00 in each case in which forensic service is performed by the OSBI if a Defendant is convicted of any offense in the case other than a parking or standing violation, i.e., even if a person's driving under the influence of intoxicating liquor charge resulted in a conviction for speeding or driving left of center, this assessment would have to be collected. That this statute does not make an exception for forensic service provided on implied consent blood samples.
9. 47 O.S. § 756 in pertinent part states, "Evidence that the person has refused to submit to either of said analyses is also admissible." That these implied consent cases, while civil matters, are quasi criminal in that the licensee has to be under arrest for a criminal offense (Driving Under the Influence) before the Implied Consent Statutes apply.
10. While Miranda warnings may not be required prior to an arresting officer making
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