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Sipes v. State ex rel. Dept. of Public Safety9/16/1997
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
This is an appeal from a district court order setting aside the revocation of the plaintiff's driver's license after he refused to consent to a breathalyzer test and failed to appear at a timely requested, scheduled administrative hearing. Based upon our review of the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings.
I
On July 18, 1996, law enforcement authorities in Newcastle, Oklahoma, stopped plaintiff Aaron Wayne Sipes for suspicion of driving under the influence of an intoxicating substance after the arresting officer saw Sipes' vehicle "cross the center line & cross the white shoulder line." The officer observed Sipes had glassy eyes, difficulty with balance, slurred speech, and a strong odor of alcohol. Sipes was arrested, and refused the Implied Consent Test Request. The officer noted on the Officer's Affidavit and Notice of Revocation given to Sipes that the document would not function as a temporary license because at the time of his arrest, Sipes' driver's license was "not currently valid."
Sipes timely requested an administrative hearing before the Department of Public Safety (DPS), which notified him that an administrative hearing "will be held at 01:30 p.m., 09/05/96, at McClain County Courthouse . . . ." Neither Sipes nor his counsel appeared at the scheduled hearing. The DPS hearing officer sustained the order of revocation based upon the sworn affidavit of the arresting officer.
On September 27, 1996, Sipes filed a Petition in district court seeking de novo review of the revocation order. DPS challenged the trial court's jurisdiction to hear the merits of the revocation, arguing Sipes' failure to appear at the scheduled administrative hearing constitutes a failure to exhaust the administrative remedies available to him under Oklahoma's implied consent statutes.
Sipes argued that under 47 O.S. Supp. 1996, Section 6-211(F), the district court "shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department . . . and the Department entered an order denying the hearing or sustaining the revocation." (Emphasis added.) Sipes contended he had satisfied both prerequisites. He argued the legislature had not included, and the court may not read in, an additional prerequisite of actual attendance at the timely requested administrative hearing. DPS elected to stand on its jurisdictional challenge and did not present any witnesses.
In an order filed February 7, 1997, the trial court found Sipes had met the jurisdictional requirements to de novo district court review, and DPS had failed "to establish a prima facie case." The court vacated the order of revocation. DPS appeals.
II
We note, as a preliminary matter, that on March 10, 1997, the supreme court ordered Sipes to file a response to the petition in error and brief by March 18, 1997, or the cause would stand submitted on DPS' filings only. Supreme Court Rule 1.25, 12 O.S. Supp. 1996, ch. 15, app. 1, commands that an appellee shall file a response to the petition in error, and failure to respond "without good cause may result in sanctions by the Court."
Sipes did not file the required response to the petition in error but instead filed an answer brief. We will impose the supreme court's promised sanction and disregard Sipes' brief. As a result, this court is under no duty to examine the record for a theory to sustain the trial court's order. If DPS' appellate brief and the record are reasonably supportive of its proposi
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