Andrews v. State Ex Rel. Department of Public Safety
2014 OK CIV APP 19
| Okla. Civ. App. | 2013Background
- On Nov. 7, 2011 Andrews crashed his car and was the sole occupant; Trooper Linn arrested him after observing odor of alcohol, slurred speech, glassy eyes, and an admission that he drank a six‑pack before the crash.
- Andrews was taken to an ambulance, advised of implied consent, and agreed to a blood test; an EMT‑paramedic (employed by the City of Jay ambulance service) drew four vials of blood at 11:25 p.m.
- OSBI analysis showed BAC 0.16; DPS issued a 180‑day implied‑consent revocation under 47 O.S. § 754 and § 6‑205.1, which the hearing officer sustained.
- Andrews appealed to district court de novo, arguing the EMT‑paramedic was not authorized under 47 O.S. § 752(A) (or by Board of Tests rules) to withdraw blood for BAC testing; the district court set aside the revocation.
- DPS moved to reconsider; the district court denied the motion. The Court of Civil Appeals affirmed, holding the blood draw was not valid/admissible because the paramedic was not authorized by statute or by a promulgated Board rule at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EMT‑paramedic was authorized to withdraw blood for implied‑consent BAC testing under 47 O.S. § 752(A) | Paramedic is not among persons listed in § 752(A) and was not an employee of a hospital or "other health care facility" so lacks statutory authorization | DPS contended EMTs can be authorized by the Board of Tests (citing Board Action No. 01‑1 and administrative practice) | Held: Not authorized—§ 752(A) lists only specific professionals and employees of hospitals/health care facilities; the City ambulance is not such a facility, so paramedic not covered |
| Whether a Board of Tests action (Action No. 01‑1) or Health Dept. practice authorized EMTs to draw blood absent a promulgated rule | Action No. 01‑1 and Health Dept. practice do not obviate the need for a properly promulgated Board rule under the APA and § 759 | DPS relied on Bemo (OCCA) and asserted Board/Health Dept. authorization existed | Held: Board Action No. 01‑1 was not a promulgated rule in the Oklahoma Administrative Code at the time; absent a properly promulgated rule, authorization did not exist |
| Whether the blood test was valid and admissible under 47 O.S. § 759(B) | Because the draw was not done by an authorized person or under Board rules, the collection was invalid and inadmissible | DPS argued the collection complied with practice and the Board had previously authorized EMT draws | Held: Collection invalid/admissible — § 759(B) requires compliance with Board rules; none authorized paramedics at the time |
| Whether the law‑enforcement affidavit requirement for revocation was satisfied | Andrews did not dispute affidavit; Trooper Linn's sworn report detailed reasonable grounds (collision, odor, slurred speech, admission) | DPS relied on affidavit and test result to justify revocation | Held: Affidavit requirement satisfied, but revocation still improper because admissible BAC evidence was lacking |
Key Cases Cited
- Bemo v. State, 298 P.3d 1190 (Okla. Crim. App. 2013) (held an EMT paramedic licensed with National Registry/State Health Dept. authorized to withdraw blood — Court of Criminal Appeals decision DPS relied on)
- Appeal of Dungan, 681 P.2d 750 (Okla. 1984) (describing de novo trial standard in implied consent revocation appeals)
- State ex rel. Dep't of Pub. Safety v. Kelley, 172 P.3d 231 (Okla. Civ. App. 2007) (questions of law reviewed de novo when facts are undisputed)
- Walker v. Group Health Servs., Inc., 37 P.3d 749 (Okla. 2001) (administrative rules promulgated under delegated authority have force of law)
- Justus v. State ex rel. Dep't of Pub. Safety, 61 P.3d 888 (Okla. 2002) (statutory construction principles and de novo review guidance)