 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Childs v. State7/13/1999
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
___P.2d___
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 4
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA
HONORABLE RUSSELL P. HASS, TRIAL JUDGE
Suspected intoxicated driver lost his license in an administrative proceeding, due to the results of an alcohol breath analysis performed on July 10, 1995. The test was performed on a machine called an intoxilyzer, an automated analyzer approved by the Board of Tests for Alcohol and Drug Influence. 47 O.S. Supp. 1992 § 752(F) does not require a second sample for independent testing be taken when the intoxilyzer is used. Second, independently testable, samples are required when law enforcement tests blood alcohol content by breathalyzer, blood, urine, or saliva. The suspect driver appealed the administrative revocation of his license, arguing a violation of the equal protection clause and Oklahoma's own constitutional equal protections provided in our constitutional due process provisions, because an automatic second sample was not given in his case. We find the record insufficient to support a determination of the constitutional challenges alleged here by the suspect driver. As a result, the administrative revocation of his license is affirmed and the Court of Civil Appeals opinion, which found a violation of equal protection norms, is vacated.
CERTIORARI PREVIOUSLY GRANTED.
COURT OF CIVIL APPEALS OPINION VACATED.
JUDGMENT OF TRIAL COURT AFFIRMED.
Thomas Childs' driver's license was revoked in an administrative proceeding because the results of a breath test administered to him, on July 10, 1995, while he was in control of an automobile showed his blood alcohol level to be .10 or greater. A person testing at this level is considered legally intoxicated and pursuant to statute no other evidence was offered at the hearing to revoke Childs' license.
The test was performed by the Broken Arrow Police Department in Tulsa County, on a breath analysis instrument called an intoxilyzer, an automated analyzer approved by the Board of Tests for Alcohol and Drug Influence (the Board). When the intoxilyzer is used a second sample for later independent testing is not taken. In accordance with the Board's regulations, a suspect driver's breath is tested twice within a short period, but no sample is retained. This procedure was followed in Childs' case.
When law enforcement personnel conduct a blood alcohol test on a breathalyzer machine, or by blood, urine or saliva collection, a second sample is automatically maintained for a prescribed time period to allow the alleged intoxicated person opportunity for a second test at an independent lab.
Childs' appealed the administrative revocation of his license to the district court, claiming unequal treatment under the law, as he was not provided a second sample for independent testing. The case was submitted on an "Agreed Statement of Facts". The district court affirmed the administrative revocation.
The Court of Civil Appeals then reversed and remanded the cause, directing the administrative revocation be set aside. The Court of Civil Appeals held that 47 O.S. Supp. 1992 § 752(F) violated Oklahoma constitutional norms of due process and equal protection, when all other forms of testing, except the intoxilyzer, allow for an automatically taken second sample.
The record provided by Childs is insufficient to support a determination of the constitutional challenges alleged with regard to
Page 1 2 3 4 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|