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McCown v. State ex rel Department of Public Safety7/1/2003
rules and regulations of the Board. 47 O.S. Supp. 1992 § 752 (H) and 47 O.S. Supp. 2000 § 759(B).*fn2
DPS first contends that the district court exceeded its authority because it did not find that the test was inaccurate and that the statute limits it to methodology of the tests. We agree that the hearing in the district court is a special proceeding and confined to the express authority found in the law. However, the law is clear that the district court makes a determination on the admissibility of the test result based on compliance with the Board's rules. The Board formally publishes its list of approved devices. Because devices are approved by the Board and published in its rules, merely approving new devices in meeting minutes is insufficient to identify new devices approved by the Board. There is no error on this account.
Next, DPS argues that the district court erred by holding that the Board must promulgate a rule to change procedure or approve new equipment. The Board is subject to the rule-making requirements of the Oklahoma Administrative Procedures Act, 75 O.S. Supp. 1997 § 250 et seq. The Board publishes its list of approved devices in the OAC. Adding a device to the approved list would amend the list. There is a procedure for amending rules which includes publication of the amended action in the Oklahoma Register. See 75 O.S. Supp. 1994 § 303 for detailed procedures for adopting, amending, or revoking rules. Because the new simulator device had not been approved and incorporated into the Board's rules, the test results were inadmissible.*fn3
Finally, DPS claims that the district court erroneously allowed a driver's license appeal to become an improper venue challenging the rule making procedures of the Board of Tests for Alcohol and Drug Influence. We disagree. The determination of the admissibility of the breath test result was expressly given to the trial court in its role in driver's license appeals. Admissibility of test results is based on the test being in compliance with the Board's rules. The Board had no rule authorizing the use of the Guth Model 2100 Simulator, therefore the test result was inadmissible.*fn4
AFFIRMED.
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