An appeals court has ruled in six cases that documents used by the Department of Public Safety to revoke driver’s licenses following DUI breath tests did not comply with state law, raising questions about thousands of past cases.
The state Court of Civil Appeals rulings, issued Wednesday, state that the Department of Public Safety was told of the problem in a 1990 case. In that case, the Oklahoma Supreme Court ruled that the agency’s license-revocation documentation was “fatally flawed.”
A former DPS attorney also warned the board that oversees the blood-alcohol tests about the problem several years ago, said attorney John Hunsucker, who filed several of the appeals.
“It’s definitely a can of worms that could have been fixed many years ago,” Hunsucker said.
State law regarding license revocation requires blood-alcohol test reports to include “a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person” drove or could have driven a car under the influence of alcohol.
Oklahoma Highway Patrol Capt. George Brown, a spokesman for DPS, said the document in question — the affidavit signed by the arresting officer — has been in use for eight years.
The Court of Civil Appeals rulings issued Wednesday ordered lower courts to dismiss license revocations against two people from Tulsa County and one person from Cleveland County.
The appeals court also affirmed rulings by an Oklahoma County judge dismissing license revocations in three other cases. In those cases, the lower court judge found that the documents DPS relied upon were deficient.
The appeals court rulings state that driver’s licenses were improperly revoked in cases where the affidavits that accompanied the blood-alcohol test reports did not comply with the wording in state law. The blood-alcohol tests are performed after an alleged drunken-driving arrest and are evidence in the criminal case as well as the license-revocation hearing, which is a separate process.
The rulings have no affect on the plaintiffs’ criminal cases.
Brown said the Department of Public Safety “firmly believes Oklahoma law and prior court decisions will uphold the legal sufficiency of the current affidavit and support its continued use. The department does intend to ask the Oklahoma Supreme Court to review the recent decisions of the Court of Civil Appeals in that regard.”
The appeals court ruling prompted the director of the state Board of Tests, Kevin Behrens, to send an email Wednesday to officers who conduct the tests. The Board of Tests is a state agency that oversees the testing of drivers’ blood or breath for drugs and alcohol.
Behrens’ email, sent to all officials who conduct the tests statewide, states that all cases must now include a “supplemental sworn report” by the arresting officer.
The new form includes the language required by law that the officer had “reasonable grounds to believe” that the driver drove or could have driven under the influence of drugs or alcohol.
The email states that DPS will not take action in license-revocation cases that lack the proper affidavit.
“This is a temporary situation. The Board is working to implement a permanent solution as soon as possible,” Behrens’ email states.
The agency sent a second notification Friday, adding information on the officer’s location to the new form.
The board plans to incorporate the proper language in the permanent form that the testing machine produces.
Tulsa attorney Bruce Edge and Hunsucker have hired another former DPS attorney, DeAnn Taylor, to work on cases challenging revocations. Edge said many more cases are pending that have the same flawed documentation as the six overturned Wednesday.
Hunsucker claims that DPS has failed to require the proper affidavit in revocation cases since at least 2008. That’s when the state approved use of the “Intoxilyzer 8000,” the machine currently used to test for drugs and alcohol.
Hunsucker said that when Taylor served as DPS assistant general counsel several years ago, she warned the Board of Tests that the forms did not contain the proper language. He said DPS was also aware of the problem at that time.
“They knew about it, and they chose to ignore it,” Hunsucker said.
Behrens said he is not aware that the Board of Tests was notified about problems with the form.
More than 40,000 people requested hearings regarding license revocations following DUI arrests from January 2008 through December 2012, DPS records show.
Edge and Hunsucker say they are unsure what the rulings mean for the thousands of people whose licenses were revoked using the old affidavit.
Hunsucker noted that DPS collects hundreds of dollars in fees for each license-revocation case. Additionally, drivers who use ignition-interlock devices must pay a monthly fee, he said.
At the end of fiscal year 2012, DPS had accrued $475,000 in four revolving funds created by various fees associated with DUI cases.
“If you look at the form, this affidavit is what gives DPS jurisdiction to proceed,” Hunsucker said. “If they don’t have jurisdiction, then all those cases where they’ve taken licenses away since 2008, do they not have jurisdiction to do that?”