Trusty v. State Ex Rel. Department of Public Safety

*734KAUGER, J.,

concurring in paiVdissenting in part, with whom WINCHESTER, EDMONDSON, . TAAYLOR, JJ., join:

¶ 1 We retained this cause to address whether the State must prove compliance with regulatory requirements for the collection of blood for a blood alcohol content test to, be used against a driver in a driver’s license revocation proceeding. I agree that DPS bears the burden of showing compliance with regulatory requirements for drawing blood in order to use the test results against a driver. Nevertheless, pursuant to 47 O.S. 2011 § 757: “the provisions of sections 751 through 761 of this title do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance.” Accordingly, this is not the end of the inquiry. The cause should be reversed and remanded for a determination of “other competent evidence.”

¶ 2 The admissibility of a blood alcohol test against an accused drunk driver is the first portion of this cause. Once the trial court determined that the blood alcohol was inad-missable because there was no evidence presented verifying that the blood was drawn according to the required rules and regulations, neither party asked for a determination of intoxication based upon any evidence other than the blood alcohol test. Consequently, the trial court dismissed the cause.

¶3 In an obvious effort to help to keep drunk drivers off Oklahoma highways, roads, and streets, the Legislature enacted 47 O.S. 2011 §§ 751-761, otherwise known as the implied'consent statutes. Legislative intent is ascertained from the whole act considering its general purpose and objective considering relevant provisions together to give full force and effect to each,1 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.2 Statutes are interpreted to attain that purpose and to champion the broad public policy purposes underlying them.3 Onlywhere the Legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed.4

¶ 4 As part of this regulatory regime, any person arrested and suspected of driving under the influence of drugs or alcohol or any combination thereof, is entitled to a DPS administrative hearing regarding the future of their driving privileges5 (additional criminal charges may also apply to such drivers). After an administrative proceeding, the driver may also appeal the matter to the district court.6 The crux of this district court hearing is that a blood or breath test will be admitted as evidence that the driver was driving under the influence of-drugs, alcohol or any other intoxicating substance.7 However, in the *735event such tests are unavailable or inadmissable, the Legislature expressly provided an additional opportunity to keep such drivers off the streets by enacting 47 O.S. 2011 § 757 which provides:

The provisions of Sections 751 through 761 of this title do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance.

¶ 5 In Bryant v. Commissioner of Dept, of Public Safety. 1996 OK 134, ¶ 14, 937 P.2d 496 the Court recognized this precise situation when it held that the trial court may consider other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance. Bryant involved a ease wherein DPS failed to provide a requested breath sample to the accused drunk driver which was timely requested pursuant to statute. Although we held because of the failure, the breathalyzer test results were inadmissible, pursuant to § 757, we remanded the cause for a determination of other competent evidence bearing on the question of whether the driver-was under the influence of alcohol or any other intoxicating substance.

¶ 6 Bryant has never been overruled and it is controlling. The fact that the Court of Civil Appeals has neglected to follow Bryant’s teachings is irrelevant. The Court approved publication in Shoptaw v. State ex rel, Dep’t of-Pub. Safety, 2016 OK CIV APP 32, 370 P.3d 1217 because the only notice provided to Shoptaw in the driver’s revocation- case was invalid because it was based on an invalid affidavit. The only facts presented in that case were that “Shoptaw was arrested in Oklahoma City by Officer William Robison for actual physical control of a motor vehicle while intoxicated” and Shoptaw refused the State’s sobriety test and was given the “Officer’s Affidavit and Notice of Revocation/Disqualification” (affidavit and notice). There were no other facts presented concerning his driving or arrest.

¶ 7 In Muratore v. State ex rel, Dep’t of Pub. Safety, 2014 OK 3, 320 P.3d 1024, the Court addressed the validity of the breathalyzer test and the lack of appropriate rules concerning its operation. “Other evidence” of the driver’s intoxication was expressly disclosed as not being an issue in Muratore because the driver stipulated that the officer had reasonable suspicion to arrest the driver. The only facts presented to the Court regarding the arrest were that “Plaintiff-Appellee Mark Muratore was arrested by Officer Tim Harwell of the Edmond Police Department for operation of a motor vehicle while under th'e influence of an intoxicating substance. The arresting officer read him the Oklahoma Implied Consent advisory and transported Muratore to the booking area of the Edmond city jail where he voluntarily submitted to a breathalyzer test.”

¶ 8 Trusty crashed his ear into playground equipment in a park. The arresting .officer observed his condition and smelled alcohol coming from his breath anc[ person. A still cool can of beer was found in the passenger floor board of Trusty’s ear. The doctor who pulled Trusty from the car immediately after the accident, stated that he was disoriented, and in her opinion, intoxicated. He was found unconscious and had to be taken to the ER to sober up enough to talk to the arresting officer and consent to the blood alcohol test.

¶ 9 Other evidence existed which could have shown that Trusty may. have been “under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance.” DPS is under funded, under staffed and under a mountain of cases which have yet to be tried, yet, the majority inhibits their ability to prove intoxication based solely on test results. This is not the law and it ignores Legislative mandates.

¶ 10 I am in complete support of keeping our streets clear of drunk drivers.8 DPS cannot nullify the statutes, rules and regulations by omitting required evidence. DPS is required to prove consent to and performance of a valid chemical test, or the refusal of the driver to submit to such a test, in.order to *736revoke a license and nothing in this opinion changes that Legislative directive. However, in the event, the test is determined to be inadmissable, the Legislature has also directed that the trial court may consider other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance. We cannot ignore this directive simply because it may or may not be futile based upon existing evidence. Without this directive, the implied consent statutes are meaningless and the Legislative goal of keeping drunk drivers off our streets is easily thwarted by the mere, inadmissibility of a blood or breath test and ignoring the factual events which occurred, resulting in a revocation in the first place. This is precisely the effect of the majority opinion in this cause. Another drunk driver is released to freely drive the streets because of a technicality with a test result without considering all of the other evidence showing that he was indeed drank. This defies logic, common sense and, statutory law.

. Clifton v. Clifton, 1990 OK 88, ¶7, 801 P.2d 693, 696, Maulé v. Indep. Sch. Dist. of Tulsa Cnty, 1985 OK 110, ¶ 11, 714 P.2d 198, 203, Ledbetter v. Oklahoma Alcoholic. Beverage Laws Enforcement Comm's, 1988 OK 117, ¶ 7, 764 P.2d 172, 179.

. King v. King, 2005 OK 4, ¶ 22, 107 P.3d 570, Fuller v. Odom, 1987 OK 64, ¶ 4, 741 P.2d 449, 453; Darnell v. Chrysler Corp., 1984 OK 57, ¶ 5, 687 P.2d 132, 134.

. See King v. King, at ¶ 22 note 2 supra, State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824, 827, Matter of Estate of Flowers, 1993 OK 19, ¶ 11, 848 P.2d 1146, 1151.

. See King v. King, at ¶22, see note 2 supra, Haggard v. Haggard, 1998 OK 124, ¶ 1, 975 P.2d 439, 442; Price v. Southwestern Beil Tel. Co., 1991 OK 50, 117, 812 P.2d 1355, 1358.

. Title 47 O.S. 2011 § 754.

. Title 47 O.S. 2011 § 755 provides:

If the revocation or denial is sustained, the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the district court in the manner and subject to the proceedings provided for in Section 6-211 of this title. The district court may modify tire revocation or denial when it is determined by the court that the person whose license or permit to drive has been revoked or denied has no other adequate means of transportation and may enter a written order directing the Department of Public Safety to allow driving, subject to the limitations of Section 6-205.1 of this title and the requirement of an ignition interlock device as provided in Section 754.1 of this title; provided, any modification under this paragraph shall apply to Class D motor vehicles only.

. Title 74 O.S. 2011 § 756.

. The purpose of revocation or suspension is to protect the public, not punish the licensee. Robertson v. State ex rel. Lester, 1972 OK 126, ¶ 14, 501 P.2d 1099.