 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
McCown v. State ex rel Department of Public Safety7/1/2003
Michael H. McCown was arrested September 8, 2001 for driving under the influence of alcohol. He was given a breath test and, as a result, his driver's license was revoked by the Department of Public Safety (DPS). The revocation was upheld by DPS after an evidentiary administrative hearing. McCown appealed to the District Court of Oklahoma County which set aside the revocation on the ground that the breath test result was not admissible evidence because the apparatus was not approved by the rules of the Board of Tests for Alcohol and Drug Influence (Board). We affirm.
When McCown, a minor, was arrested, the officer tested for alcohol using an Intoxilyzer 5000 connected to a Guth Model 2100 Simulator. It was undisputed that the Simulator was not listed as an approved device pursuant to OAC 40: 25-1-3 where the Board lists its approved devices.
A person who is denied driving privileges or has his driving privileges canceled, denied, suspended, or revoked by DPS may appeal the adverse action to district court which has original jurisdiction to hear the petition. 47 O.S. Supp. 2000 § 6-211(A). The district court takes testimony of witnesses and examines the facts and circumstances, including the records of DPS relative to the offense, and the driving record of the person. It makes a determination based on the facts submitted whether the petitioner is entitled to driving privileges or whether the petitioner should be subject to the DPS order.*fn1 The person or DPS may appeal the order of the district court. 47 O.S. Supp. 2000 § 6-211(M). The reviewing 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." Smith v. State ex rel. Department of Public Safety, 1984 OK 16, 7, 680 P.2d 365, 368.
DPS carries the burden of proving, by a preponderance of the evidence, that the adverse action with respect to driving privileges, was proper. Trenton v. State ex rel. Department of Public Safety, 1989 OK CIV APP 96, 790 P.2d 1127.
The parties stipulated that the district court take judicial notice of the Oklahoma Administrative Code's Rules of the Board of Tests for Alcohol and Drug Influence.
DPS presented one witness, the arresting officer. He testified that he had been a police officer for the City of Edmond for approximately eight and one-half years. On September 8, 2001 he came in contact with McCown:
A I received a call from a father, Mr. McGown (sic), who was trying to stop his son. I believe at that time they were northbound on Santa Fe. His son was driving a small red vehicle. His son was not stopping for him. They came eastbound on Covell to Broadway, and then came southbound. I was coming northbound on Broadway where I made contact with the red vehicle coming southbound roughly, and I estimated the speed at approximately 60 miles per hour, turned around the vehicle and stopped him.
Q What's the speed limit in that area?
A It's 45 miles per hour right before Danforth, approximately a quarter mile, goes to 35 miles an hour.
Q Okay. So when you saw those vehicles they were coming at you, right?
A Yes, sir.
Q Okay. When you saw that, was the small red vehicle within the city limits of Edmond?
A Yes.
Q Okay. So once you did see these vehicles that you described, what did you do?
A I stopped the red vehicle, approached and made contact with the driver, Michael McGown (sic).
Q And what did you tell him or ask him to do?
A Asked him for his driver's license identification. As I was talking to him I noticed an odor of alcoho
Page 1 2 3 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|