No. 47009 | Okla. Civ. App. | Jul 1, 1975
On June 23, 1973, appellee was arrested and charged with driving while under the influence of alcohol. The arresting officer requested that appellee submit to either a blood or breath test to determine the amount of appellee’s blood alcohol content. Appellee refused to submit to either test. The Department of Public Safety [appellant] subsequently gave notice to appellee that his driver’s license was to be revoked for a period of six months for refusing to submit to a blood alcohol test. Appellee requested a hearing before the Oklahoma Commissioner of Public Safety pursuant to 47 O.S.1971 § 754.
The Department of Public Safety is now appealing and urges as its sole proposition of error:
“The Court erred in finding that what the trooper observed was not sufficient to show that the appellee was driving a motor vehicle while under the influence of alcohol.”
In the district court, appellant argued and the journal entry reflected that the issue contested was whether the officer had reasonable grounds to believe appellee was under the influence. However, the issue to be tried was not whether the officer had reasonable grounds to believe that appellee
Where a trial court reaches the right result but for the wrong reason, that judgment will be affirmed. McDaniel v. McCauley, Okl., 371 P.2d 486" court="Okla." date_filed="1962-03-20" href="https://app.midpage.ai/document/mcdaniel-v-mccauley-1132094?utm_source=webapp" opinion_id="1132094">371 P.2d 486 (1963). Inherent in the trial court’s finding that the officer did not have reasonable grounds to believe appellee was driving while under the influence is a finding that the evidence was insufficient to prove appellee was in fact so driving. We will therefore affirm the judgment if the evidence is insufficient to show appellee was in fact driving under the influence.
To examine the evidence and decide the issue of whether appellee was in fact driving a vehicle while under the influence requires an intimate look at the facts of the present case.
On June 23, 1973, appellee was driving his brother’s car on Interstate Highway 35 from Purcell through Norman at about 9:20 p,m. Appellee noticed that the Oklahoma Highway Patrol had his brother’s truck stopped off an 1-35 exit near Norman. Appellee took the next exit and came back to the vicinity of where his brother’s truck was stopped. Appellee parked on a service roadway adjacent to 1-35 and walked 40 to 70 feet across a grassy median to where the patrolmen were parked. There were two patrol cars present and appellee’s brother was in the lead car with a trooper. Appellee approached Officer West, the patrolman from the back-up patrol car and was told appellee’s brother had been arrested. Ap-
During the revocation hearing before the trial court, only appellee and Officer West testified. Officer West was asked:
“Okay, now, would you tell the Court exactly why or what you observed about Mr. Tucker that led you to believe that he was under the influence of alcohol.”
To which Officer West replied:
“I observed unsteadiness in walking, I observed a slight impediment in his speech, slightly slurred. I noticed his eyes appeared to be glassy, and I noticed an odor of alcoholic beverage on his breath, the odor of alcohol on his breath.”
Appellee testified he had broken both his ankles about “a year and a half ago” and had so advised Officer West while at the jail. He testified that he did not stumble when he walked from his car across the uneven grassy median to Officer West’s car, but if West thought he did, it was because of his broken ankles. He said his ankles caused him problems when walking on other than smooth, flat surfaces. Ap-pellee’s testimony that he walked normally at the jail while “walking the line” was not disputed by Officer West.
Appellant carries the burden and must prove by a “preponderance of the evidence” that appellee “had been driving . . . while under the influence.” Application of Baggett, supra. By a preponderance of the evidence it is meant that a fact is more probably true than not true. Peyton v. McCaslin, Okl., 417 P.2d 316" court="Okla." date_filed="1966-01-11" href="https://app.midpage.ai/document/peyton-v-mccaslin-1196011?utm_source=webapp" opinion_id="1196011">417 P.2d. 316 (1966). So we are faced with deciding whether the foregoing evidence more probably shows it true than untrue that appel-lee had been driving while under the influence.
In Luellen v. State, 64 Okl.Cr. 382, 81 P.2d 323 (1938) the court defined “driving under the influence of intoxicating liquor” as follows:
“[T]hat if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is ‘under the influence of intoxicating liquor’ within the meaning of the statute.”
Affirmed.
. 47 O.S.1971 § 754 reads:
“Upon the written request of a person whose privilege to drive has been revoked or denied the Oklahoma Commissioner of Public Safety shall grant the person an opportunity to be heard within ten days after the receipt of the request, but the request must be made within thirty days after the revocation. The hearing shall be before the Oklahoma Commissioner of Public Safety or his authorized agent, in the county wherein the alleged events occurred for which the person was arrested, unless the Oklahoma Commissioner of Public Safety or his authorized agent and the person agree that the hearing may be held in some other county. The hearing shall be transcribed and its scope shall cover the issues of whether the person had been driving or was in actual physical control of a vehicle upon the public highways while under the influence of alcohol or intoxicating liquor, whether the person was placed under arrest and whether he refused to submit to the test or tests. Whether the person was informed that his privilege to drive would be revoked or denied if he refused to submit to ' the test or tests shall not be an issue. The Oklahoma Commissioner of Public Safety or his authorized agent shall order either that the revocation or denial be rescinded or sustained.” See footnote 3, infra, for amended text.
. 47 O.S.1971 § 755, amended by 2 Okl.Sess. Laws ’75, ch. 119 (May 13, 1975), reads:
“If the revocation or denial is sustained the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the [county] court in the manner provided in 47 O.S., Section 6 — 211, and the proceedings upon said appeal shall be the proceedings prescribed by 47 O.S., Section 6 — 211.”
. This case arose in 1973. Since then, 47 O.S.1971 § 754 has been amended by the 1975 session of the Oklahoma Legislature (ch. 119, May 13, 1975), changing the number and character of the issues to be tried at the revocation hearing. The section as amended now reads:
“Upon the written request of a person whose privilege to drive has been revoked or denied the Oklahoma Commissioner of Public Safety shall grant the person an opportunity to be heard within thirty (30) days after the' receipt of the request, but the request must be made within thirty (30) days after the notice of the revocation is given in accordance with Section 2 — 116 of Title 47, Oklahoma Statutes. Such a request shall also operate to stay the revocation or denial by the department until a hearing is held unless the person is under suspension or revocation for some other reason. The hearing shall be before the Oklahoma Commissioner of Public Safety or his authorized agent, in the county wherein the alleged events occurred for which the person was arrested, unless the Oklahoma Commissioner of Public Safety or his authorized agent and the person agree that the hearing may be held in some other county. The hearing shall be recorded and its scope shall cover the issues of whether the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the public highways, streets or turnpikes while under the influence of alcohol or intoxicating liquor, whether the person was placed under arrest, whether he refused to submit to the test or tests, and whether the person was informed that his privilege to drive would be revoked or denied if he refused to submit to the test or tests. The Oklahoma Commissioner of Public Safety or his authorized agent shall order either that the revocation or denial be rescinded or sustained.”
. Though a continuance was granted to ap-pellee in order to obtain this report, ap-pellee did nothing to procure it until the morning of the trial, at which time appellant objected to the same. The contents of the report never made their way into the record. It would seem this report might have shed some light on exactly what took place at the jail, since the officer’s memory as to what transpired there was somewhat vague.