Sample v. State ex rel. Department of Public Safety
2016 OK CIV APP 62
Okla. Civ. App.2016Background
- Eric Sample was arrested for OUI, consented to breath testing, and recorded a .28 BAC; DPS administratively revoked his driver’s license and the revocation was initially sustained on review.
- Sample petitioned the district court for de novo review, arguing DPS failed to prove the breath test was valid because: (1) the reference gas cylinder did not have a verifiable ethanol:nitrogen ratio; and (2) two breath samples were not collected using a new mouthpiece for each sample as required by Board of Tests (BoT) rules.
- DPS relied on BoT action: the BoT had approved the pressurized gas cylinder supplier by Board resolution and the BoT Director had approved the mouthpiece by administrative action; DPS argued those approvals made the test compliant with BoT rules.
- The trial court found BoT lacked authority to approve equipment by resolution or to delegate approval authority to the Director without following the Administrative Procedure Act (APA); it set aside the revocation for failure to prove a valid test.
- The Court of Civil Appeals affirmed, holding (1) BoT must adopt substantive approvals via APA-compliant rulemaking rather than ad hoc resolutions or informal delegation, and (2) because DPS failed to prove the test complied with duly adopted BoT rules, the revocation could not be sustained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of breath test evidence (reference gas composition) | Sample: DPS did not prove the reference gas contained the required ethanol:nitrogen ratio so test inadmissible. | DPS: The gas was approved for use by BoT resolution, making the test valid. | Held: DPS failed to prove compliance with BoT rules; resolution approval was insufficient. |
| Mouthpiece use (single new mouthpiece per sample) | Sample: Two samples were not collected with separate new mouthpieces as required. | DPS: The BoT Director approved use of the mouthpiece by administrative action, authorizing procedure used. | Held: Director lacked authority to authorize such substantive equipment approval outside APA rulemaking. |
| BoT authority to approve devices by resolution or delegate approval | Sample: BoT’s own rules require APA rulemaking; resolutions/delegations cannot create substantive policy. | DPS/BoT: Board validly approved equipment by resolution and delegated Director authority; trial court lacked jurisdiction to question BoT rules here. | Held: BoT must use APA-compliant rulemaking for substantive approvals; resolutions/delegations here were ineffective. |
| Proper procedure to challenge BoT rules / joinder of BoT | Sample: Implied-consent proceeding can examine whether test complied with BoT rules. | DPS/BoT: Challenges to rules must be via declaratory judgment within statute of limitations; BoT should have been joined. | Held: District court appropriately considered BoT compliance in implied-consent review; failure to join BoT did not excuse DPS’s burden to prove test complied with valid rules. |
Key Cases Cited
- Muratore v. State ex rel. Dept. of Public Safety, 320 P.3d 1024 (Okla. 2014) (DPS bears burden in district court to prove all facts necessary to sustain license revocation, including valid test compliance)
- Charlson v. State ex rel. Dept. of Public Safety, 125 P.3d 672 (Okla. 2005) (admissibility of breath tests depends on compliance with BoT rules)
- Manning v. State ex rel. Dept. of Public Safety, 71 P.3d 527 (Okla. Civ. App. 2003) (BoT rules do not permit substantive approval of devices by resolution; APA rulemaking required)
- McCown v. State ex rel. Dept. of Public Safety, 74 P.3d 623 (Okla. Civ. App. 2003) (district court may set aside revocation where Board approved device but failed to formalize approval through rulemaking)