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TUCKER v. STATE ex rel. DEPT. OF PUBLIC SAFETY2014 OK CIV APP 45326 P.3d 542Case Number: 111960Decided: 10/09/2013Mandate Issued: 04/29/2014DIVISION III
Comp. w/111697; 111699; 111752; 112002 & 112006THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 45, 326 P.3d 542
JAMES TUCKER, Plaintiff/Appellee,v.STATE OF OKLAHOMA, 
ex rel., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE JAMES P. CROY, JUDGE

AFFIRMED

A. DeAnn Taylor, Ardmore, Oklahoma, and John Hunsucker, Oklahoma City, 
Oklahoma, for Plaintiff/Appellee,Mark E. Bright, Assistant General Counsel, 
Oklahoma City, Oklahoma, for Defendant/Appellant.


Bay Mitchell, Judge:
¶1 Defendant State of Oklahoma, ex rel. Department of Public Safety 
(DPS) appeals from a June 7, 2013 Journal Entry, wherein the trial court set 
aside the driver's license revocation order previously entered against 
Plaintiff/Appellee James Tucker (Driver). The basis for vacating the DPS Order 
was the trial court's determination that the arresting Officer's Affidavit upon 
which the order was based was facially defective due to its noncompliance with 
47 O.S. 2011 §754(C). DPS 
appeals from this determination in this implied consent case.1
¶2 The facts of the underlying stop, arrest and testing are not in dispute. 
Driver was arrested for driving under the influence of alcohol. Driver took the 
State's sobriety test and was subsequently served with the Officer's Affidavit 
and Notice of Revocation/Disqualification. This form Affidavit was relied upon 
by DPS for the initial revocation of Driver's license.
¶3 After an administrative hearing, DPS issued an Order revoking Driver's 
driving privileges for a period of 180 days. Driver appealed,2 and the trial court 
ultimately vacated DPS's revocation order on the ground that the Officer's 
Affidavit was defective in that it did not comply with 47 O.S. §754(C).
¶4 The Affidavit identifies the Driver, his address, driver license number 
and vehicle identification. Additionally, the form includes the breath-alcohol 
analysis record/report as well as a log of test and maintenance record of the 
particular testing equipment. While the form contains a description of the 
Driver's driving behavior and/or circumstances of the arrest as well as a 
description of Driver's condition and actions, the only personal attestations of 
the Officer, which are reflected on the face of the form are as follows: (1) "I 
administered said Breath-Alcohol Test in compliance with the applicable 
operating procedure of the Board of Tests;" (2) "I state under penalty of 
perjury under the laws of Oklahoma that the foregoing is true and correct;" and 
(3) "I personally hand-delivered a copy of the above containing the Notice of 
Revocation to the person named in Section 1 above."
¶5 Driver argues the implied consent Officer's Affidavit was facially 
defective in that it failed to contain the Officer's sworn report specifically 
required by 47 O.S. §754(C).
¶6 Section 754(C) provides in pertinent part as follows:


Upon receipt of a written blood or breath test report reflecting that the 
    arrested person . . . if the arrested person is twenty-one (21) years of age 
    or older, [had] a blood or breath alcohol concentration of eight-hundredths 
    (0.08) or more, accompanied by a sworn report from a law enforcement 
    officer that the officer had reasonable grounds to believe the arrested 
    person had been operating or was in actual physical control of a motor 
    vehicle while under the influence of alcohol as prohibited by law, the 
    Department shall revoke or deny the driving privilege of the arrested person 
    for a period as provided by Section 6-205.1 of this title. Revocation or 
    denial of the driving privilege of the arrested person shall become 
    effective thirty (30) days after the arrested person is given written notice 
    thereof by the officer as provided in this section or by the Department as 
    provided in Section 2-116 of this title.
Id. (emphasis added).
¶7 Driver contends the Affidavit is fatally flawed because it fails to 
include the Officer's statutorily required sworn statement that he had 
reasonable grounds to believe the arrested person had been operating a motor 
vehicle while under the influence of alcohol. DPS, on the other hand, contends 
the Affidavit is sufficient on the basis of its inclusion of a factual 
description of the driving conduct and the Driver's condition, which under a 
totality of the circumstances analysis, "shows" probable cause to believe the 
arrestee had committed an alcohol-related offense.
¶8 On appeal from orders of implied consent revocations, an appellate court 
will not reverse the district court's findings unless they are erroneous as a 
matter of law or lack sufficient evidentiary foundation. Hollis v. State ex 
rel. Dep't of Public Safety, 2006 OK CIV APP 25, ¶4, 131 P.3d 145, cert. denied. 
Our review of this case requires the statutory construction of §754(C). The 
primary goal of statutory construction is to ascertain and follow the intention 
of the Legislature. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶5, 829 P.2d 15, 20. Furthermore, the 
plain meaning of a statute's language is conclusive except in the rare case when 
literal construction would produce a result demonstrably at odds with 
legislative intent. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶13, 33 P.3d 302, 307; City of Tulsa 
v. Public Employees Relations Board, 1998 OK 92, ¶14, 967 P.2d 1214, 1220. The issue 
before us presents a question of law, which we review de novo. An 
appellate court has the plenary, independent, and nondeferential authority to 
reexamine a trial court's legal rulings. Kennedy v. State, ex rel. Dep't of 
Public Safety, 2005 OK CIV APP 
35, ¶12, 114 P.3d 499, 
501.
¶9 Our review of the applicable statutory language reveals a plain and 
unambiguous directive as to the express content of the Officer's sworn report. 
The statute mandates the sworn report expressly state "that the officer had 
reasonable grounds to believe the arrested person had been operating . . 
. a motor vehicle while under the influence . . ." §754(C) (emphasis added). 
Further, it is upon the Commissioner of Public Safety's receipt of this specific 
sworn report, which triggers the license revocation.
¶10 Construing an earlier version of §754, in 1990 the Oklahoma Supreme Court 
held the Officer's sworn report (that he had reasonable grounds to believe the 
arrested person had been operating or was in actual physical control of a motor 
vehicle while under the influence of alcohol) is a "statutory 
prerequisite for DPS revocation" of a driver's license. Chase v. State ex 
rel. Dep't of Public Safety, 1990 
OK 78, ¶4, 795 P.2d 1048, 
1049 (construing a virtually identical statutory sworn statement content 
requirement as it existed in the governing statute at that time at 47 O.S. Supp. 1986 §754(3)).3 A "patent 
deficiency in the statutorily required DPS material does indeed make the 
Department's revocation order vulnerable to invalidation, on timely appeal, for 
failure to meet the minimum legislatively prescribed standards for the DPS 
paperwork on which its administrative action must be rested." Id. ¶5, at 
1050. In Chase, the Court held "that when, on appeal to the district 
court, the trial judge finds a DPS revocation order was issued on administrative 
documentation that fails to meet the minimum standards mandated by the 
applicable statute, the order should be set aside as fatally flawed." Id. 
¶6, at 1050.
¶11 While the factual details in the Affidavit concerning the Driver's 
driving conduct and condition may constitute grounds giving rise to the 
Officer's reasonable belief that the Driver had been driving under the 
influence, this critical, statutorily required sworn statement regarding that 
belief is absent.4 Because the Officer's Affidavit did not include the 
sworn report as required by statute as to the Officer's reasonable grounds to 
believe the arrested person had been driving or was in actual physical control 
of a motor vehicle while under the influence of alcohol, the evidence on which 
the administrative revocation action rested is patently deficient. In light of 
the Affidavit's fatal deficiency and failure to meet the statutory prerequisite 
for DPS revocation, the trial court correctly set aside the DPS revocation 
order.

¶12 AFFIRMED.

HETHERINGTON, P.J., and GOREE, J., concur.

FOOTNOTES

1 While 
the order on appeal includes various additional determinations on other issues, 
DPS only raises and briefs one issue on appeal-the sufficiency of the Officer's 
Affidavit.

2 "A 
person whose driving privilege is revoked or denied or who is denied a hearing 
pursuant to Section 753 or 754 of this title may appeal to the district court in 
the county in which the arrest occurred relating to the test refusal or test 
result, as shown by the records of the Department." 47 O.S. 2011 §6-211(D).

3 Unlike 
the fatal defect in the affidavit at issue herein, a mere scrivener's error 
(such as an erroneous date on an Officer's affidavit) may be corrected by oral 
testimony. Clawson v. State ex rel. Dep't of Public Safety, 2007 OK CIV APP 89, 168 P.3d 258.

4
Although not reflected in the record, Driver's appellate brief states the 
affidavit form being used by Oklahoma law enforcement which does not contain the 
statutory language from §753 or §754(C) only became problematic when the Model 
8000 Intoxilizer was approved for use in Oklahoma. Driver states there was no 
issue with the form of the affidavits being used prior to that time. This 
implies that the affidavits used previously contained the required statutory 
language.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2005 OK CIV APP 35, 114 P.3d 499, KENNEDY v. STATE ex rel. DEPT. OF PUBLIC SAFETYDiscussed 2006 OK CIV APP 25, 131 P.3d 145, HOLLIS v. STATE ex rel. DEPT. OF PUBLIC SAFETYDiscussed 2007 OK CIV APP 89, 168 P.3d 258, CLAWSON v. STATE ex rel. DEPT. OF PUBLIC SAFETYDiscussedOklahoma Supreme Court Cases CiteNameLevel 1990 OK 78, 795 P.2d 1048, 61 OBJ        2091, Chase v. State ex rel. Dept. of Public SafetyDiscussed 1992 OK 31, 829 P.2d 15, 63 OBJ        682, TRW/Reda Pump v. BrewingtonDiscussed 2001 OK 71, 33 P.3d 302, 72 OBJ        2703, SAMMAN v. MULTIPLE INJURY TRUST FUNDDiscussed 1998 OK 92, 967 P.2d 1214, 69 OBJ        3242, City of Tulsa v. State ex rel. Public Employees Relations BoardDiscussedTitle 47. Motor Vehicles CiteNameLevel 47 O.S. 6-211, Right of Appeal to CourtCited 47 O.S. 754, Surrender or Seizure of License - Receipt as Temporary License - Revocation or Denial of Driving Privilege - HearingDiscussed at Length










