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Wilson v. State ex rel Department of Public Safety3/30/2001
Modified: 05/15/2001
Mandate Issued: 05/03/2001
__ P.3d __
APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA
HONORABLE NOAH EWING, JUDGE
REVERSED
Upon trial de novo, the district court reversed the Department of Public Safety's (DPS) revocation of Wilson's drivers license. It specifically found that there was no evidence that Wilson was behind the wheel of the vehicle in which he was found seated before it became stuck in the mud; that Wilson's arrest for driving under the influence of alcohol was made despite no probable cause to arrest him for that charge; that DPS did not produce evidence of when Wilson consumed alcohol; and finally that the breath testing equipment was not given reference tests after replacing a tube. We find that the record does not support the trial court's order, and does support the order revoking Wilson's driver license. Consequently, we reverse.
The first time this case was appealed, the trial court had sustained Wilson's demurrer to DPS's evidence. In Wilson v. State of Oklahoma, ex rel. Department of Public Safety, 2000 OK CIV APP 28, 998 P.2d 1241, Division 4 held that the trial court erred in setting aside the revocation on the ground that the truck (1997 Chevy Suburban) was inoperable. It reversed and remanded the case for trial.
Authority for revocation of a driver's license is found at 47 O.S. Supp. 1999 §754 (C):
... if the arrested person is twenty-one (21) years of age or older, a blood or breath alcohol concentration of ten-hundredths (0.10) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by Section 6-205.1 [periods of revocation] of this title.
"Hearings [administrative revocation hearings] properly should address the issue of the officer's reasonable grounds to believe that a person was driving under the influence , not whether a person was, in fact, driving under the influence.... The same findings must be made by the district court pursuant to §754 as are made by the hearing examiner, even though the hearing before the district court is de novo." Smith v. State ex rel. Department of Public Safety, 1984 OK 16, 680 P.2d 365, 368. "This court will not reverse or disturb a finding of a lower court if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support its findings." Id.
The evidence consisted of the testimony of the two arresting officers and of Wilson, as well as the "Officer's Affidavit and Notice of Revocation," and the breathalyzer log and service report.
The officers stated that in the early morning hours of October 16, 1998, a citizen informed them that she had seen a car off of I-35, within the Purcell town limits. When they arrived, they thought there was a fire and alerted the Fire Department. It turned out to be dust turned up because of Wilson's gunning of the engine. He was stuck high center. He was seated behind the wheel and was restrained by his seat belt. When asked about the accident, he replied that he was stuck. When he did not stop gunning the engine, one of the officers leaned in to turn off the ignition. At that time, the officer smelled the strong odor of alcohol on Wilson's breath. When asked to leave the truck, Wilson had difficulty removing his seat belt. When he exited the truck, he took a couple of s
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