315 P.3d 989
Okla.2013Background
- Kevin B. Hedrick was arrested for DUI; DPS held a hearing and issued a 180‑day revocation order mailed to Hedrick on September 28, 2009. Hedrick filed a district‑court petition on October 30, 2009 attaching a photocopy of the DPS revocation order and seeking to set aside or modify the revocation for hardship.
- DPS objected in district court that Hedrick’s appeal was untimely and that Hedrick had not filed a certified copy of the DPS order, arguing an uncertified photocopy was incompetent evidence.
- The trial court dismissed the appeal for lack of jurisdiction, finding the appeal untimely and the photocopy insufficient proof. The Court of Civil Appeals affirmed in an unpublished opinion; certiorari was granted.
- The Supreme Court considered application of: 47 O.S. § 2‑111 (DPS records and photocopies), 47 O.S. § 6‑211 (appeals from DPS revocations), and 12 O.S. § 3004(3) (Oklahoma Evidence Code rule allowing duplicates when originals are under control of opposing party).
- The Court held (majority): Hedrick’s appeal was timely; photocopies of DPS records are deemed originals and admissible under § 2‑111; and under 12 O.S. § 3004(3) a certified copy was not required because the original was under DPS control.
Issues
| Issue | Plaintiff's Argument (Hedrick) | Defendant's Argument (DPS) | Held |
|---|---|---|---|
| Timeliness of appeal | Filing deadline runs from completion of service; § 2‑116 makes mail notice effective 10 days after mailing so petition filed within 30 days | Petition was filed 37 days after mailing and thus untimely | Appeal was timely: under § 2‑116 mailing completes notice 10 days after deposit, so Hedrick’s October 30 filing met the 30‑day rule |
| Admissibility of DPS photocopy / need for certified copy | Photocopy DPS mailed is sufficient to invoke jurisdiction; certified copy not required because original was in DPS control and § 3004(3) permits duplicates | Photocopy is incompetent without certification or formal certificate under evidence statutes; appellant must produce certified copy | Photocopies of DPS records are deemed originals and admissible under 47 O.S. § 2‑111; § 3004(3) also permits admission when the original is under control of the opposing party — a certified copy was not required |
| Burden to produce administrative record (procedural issue raised in concurrence) | Appellant need not obtain full DPS certified record to file petition; attaching mailed copy properly notifies DPS | DPS contends it need not file the administrative record unless it chooses to use portions and that appellant bears burdens to prove jurisdictional facts | Majority: appellant’s petition invoked district court jurisdiction upon filing; photocopy sufficed to put DPS on notice and certified copy not required. Concurring view: DPS bears evidentiary burden in de novo district hearing and should file or introduce the administrative record so parties are not subjected to trial‑by‑ambush |
| Scope of district‑court review and record production (concurrence) | N/A (raised in concurring opinion) | DPS asserts no obligation to produce full administrative record unless it uses specific items | Concurring Justice would require DPS to file or introduce the complete administrative record (or certified copy) for the district‑court trial de novo and reject trial‑by‑ambush practice |
Key Cases Cited
- Security State Bank v. Lane, 166 P.160 (Okla. 1917) (copy admissible when original in hands of adverse party and pleadings give notice)
- Smith v. Arrow Drilling Co., 130 P.2d 95 (Okla. 1942) (carbon or duplicate admissible where original in adverse party’s possession)
- Chase v. State ex rel. Dept. of Public Safety, 795 P.2d 1048 (Okla. 1990) (administrative record defects can render DPS revocation vulnerable on timely appeal)
- Oklahoma Dept. of Public Safety v. Robinson, 512 P.2d 128 (Okla. 1973) (when DPS order is appealed the district court proceeding is judicial and evidence must meet judicial standards)
- Peters v. Oklahoma Dept. of Public Safety, 557 P.2d 908 (Okla. 1976) (DPS bears burden to prove revocation by preponderance at district‑court de novo)
- Hollis v. State ex rel. Dept. of Public Safety, 183 P.3d 996 (Okla. 2008) (discusses elements DPS must prove for revocation based on refusal or test result)