Shoptaw v. State ex rel. Department of Public Safety
2016 OK CIV APP 32
| Okla. Civ. App. | 2015Background
- On Sept. 30, 2013 Officer William Robison arrested Austin N. Shoptaw for actual physical control while intoxicated; Shoptaw refused chemical testing and was given an "Officer's Affidavit and Notice of Revocation/Disqualification."
- Shoptaw timely requested an administrative hearing; DPS sent a supplemental sworn report (signed Jan. 26, 2014) that included the statutorily required language that the officer had reasonable grounds to believe Shoptaw was in actual physical control while under the influence.
- Officer Robison testified he did not give Shoptaw a copy of the supplemental affidavit; Shoptaw’s counsel testified he received it Feb. 7, 2014.
- DPS sustained the revocation at the administrative level (Mar. 25, 2014); Shoptaw appealed to district court.
- The trial court set aside the revocation, concluding the only notice Shoptaw actually received was based on a facially invalid officer's affidavit and that the later supplemental affidavit did not cure the notice defect or constitute a new notice of revocation under 47 O.S. § 754(B).
- DPS appealed; the Court of Civil Appeals affirmed, holding the revocation was invalid because the supplemental affidavit did not serve as or effect service of the required revocation notice to the driver.
Issues
| Issue | Plaintiff's Argument (DPS) | Defendant's Argument (Shoptaw) | Held |
|---|---|---|---|
| Whether a post-arrest supplemental sworn affidavit containing the required statutory language cures a facially defective officer's affidavit used to support a revocation | The supplemental affidavit "goes with" the original affidavit; the required sworn statement need not be on the original form, need not be served at arrest, and need not be on the same paper as the notice | The only revocation notice Shoptaw received was the defective original affidavit/notice; a later supplemental affidavit that was not served as the required notice cannot cure the defect | Held: Supplemental affidavit does not cure the invalid original notice; revocation set aside |
| Whether § 754(B) requires the sworn report to be served on the driver at time of arrest or be on same form as the notice | § 754(B) does not require completion at time of arrest or that affidavit and notice be on same sheet; only the receipt/notice must be served on the driver | The required sworn statement is part of the evidence supporting the revocation notice; if the officer's affidavit lacks it, the notice and any revocation are invalid unless a proper notice is served | Held: While affidavit and notice need not be same sheet, the driver must receive a valid notice based on a compliant officer's affidavit; here the driver received only an invalid notice |
| Whether failure to timely file the officer's report affects DPS's authority to revoke | DPS argued statute allows late filing and supplemental documents can be combined with initial forms to create a valid basis | Shoptaw argued the statutory scheme requires the driver to receive notice that is supported by a compliant sworn report; absent that, revocation authority is defective as to that driver | Held: The failure to serve a notice supported by a valid sworn report rendered the revocation invalid as to Shoptaw |
| Whether DPS may refile an implied consent action after revocation set aside | DPS suggested the supplemental affidavit corrected the record so revocation was valid | Shoptaw argued the revocation was void because he never received a valid notice and that DPS should not refile | Held: Trial court ordered DPS not to refile; appellate court affirmed setting aside the revocation (and did not disturb trial court order forbidding refiling) |
Key Cases Cited
- Roulston v. State ex rel. Dep't of Pub. Safety, 324 P.3d 1261 (Okla. Civ. App. 2014) (statute requires officer's sworn report to expressly state officer had reasonable grounds; absence is fatal to revocation)
- Tucker v. State ex rel. Dep't of Pub. Safety, 326 P.3d 542 (Okla. Civ. App. 2014) (officer's affidavit must meet statutory requirements or revocation set aside)
- Chase v. State ex rel. Dep't of Pub. Safety, 795 P.2d 1048 (Okla. 1990) (affidavit defects can render administrative revocation invalid)