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Smith v. State ex rel. Dept. of Public Saf.4/24/1984
Two questions are presented on appeal: (1) Did the arresting officer effect a valid arrest which invoked the Implied Consent Statute, 47 O.S. 1981 §§ 751 et seq., and (2) was the evidence presented to the District Court sufficient to support its judgment? We answer both questions in the affirmative, and affirm the judgment of the District Court.
On May 20, 1983, at approximately 1:30 a.m., a police officer of the City of Yukon, Oklahoma, observed appellant, Susan Ann Smith (driver) stop her vehicle thirty feet short of a red light. The officer saw her, after the light turned green, drive through the intersection and narrowly avoid hitting the curb on the other side. After making these observations, the officer stopped the driver. When he approached the car, he smelled the odor of alcohol on her breath, and arrested her for driving under the influence of intoxicating beverages (DUI). When the officer read her the request for the implied consent test, she declined to take any sobriety test. Thereupon, the arresting officer filed his officer's affidavit and notice of revocation. Subsequently, the Commissioner of Public Safety issued an order revoking her driver's license. On August 12, 1983, a hearing was conducted before a hearing examiner for the Department of Public Safety in Canadian County, and the order of revocation for a period of six months was sustained. The driver filed a petition for review with the district court which sustained the order of revocation, reinstating limited driving privileges.
I.
WERE THE INITIAL STOP AND SUBSEQUENT ARREST FOR D.U.I. PROPER GROUNDS FOR INVOCATION OF THE IMPLIED CONSENT LAWS?
The driver argues that her stop and arrest were unlawful, notwithstanding the officer's subsequent observation, because the officer's grounds for stopping her initially would not independently indicate the commission of a misdemeanor. She contends that a valid arrest is essential to invoke the statutory provisions which give a police officer the right to request a driver to submit to a chemical test for blood alcohol. We agree. However, a police officer acting to preserve the peace and prevent crime has the right to make reasonable inquiry of persons observed under circumstances which reasonably suggest that a crime has been, or is being committed. Under this general proposition of law, the Oklahoma Court of Criminal Appeals has approved the stopping of motorists when an officer is convinced that a vehicle is being operated in a way which menaces the driving public. An officer may stop a moving vehicle not only when he directly observes a violation of the law, but also when specific articulable facts indicate probable cause to believe a violation of the law is present. If, after properly stopping the vehicle, the officer observes a misdemeanor, the subsequent arrest is lawful.
Before he stopped the driver, the officer had no knowledge that a misdemeanor had been committed in his presence, nevertheless, based upon his observations of the driver's erratic operation of the vehicle, he appropriately made further inquiry. He then determined that the driver appeared to be driving under the influence of alcohol, and made a lawful arrest for D.U.I. which gave rise to his right and duty to request the driver to submit to the chemical test for blood alcohol. The failure of the driver to submit to the test invoked the implied consent law.
II.
WAS THE EVIDENCE PRESENTED SUFFICIENT TO SUPPORT THE JUDGMENT OF THE TRIAL COURT?
The driver also contends that the evidence is insufficient to support revocation of her license. In this instance, the burden of proof is met by the test of the preponderan
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