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MARTINEZ v. STATE ex rel. DEPT. OF PUBLIC SAFETY2014 OK CIV APP 17321 P.3d 991Case Number: 111116Decided: 11/05/2013Mandate Issued: 02/20/2014DIVISION IVTHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IVCite as: 2014 OK CIV APP 17, 321 P.3d 991
RALPH R. MARTINEZ, Plaintiff/Appellant,v.STATE OF 
OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTY, 
OKLAHOMA
HONORABLE JAMES B. CROY, TRIAL JUDGE

AFFIRMED

John E. Hunsucker, A. DeAnn Taylor, Oklahoma City, Oklahoma, for 
Plaintiff/AppellantDouglas R. Young, OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, 
Oklahoma City, Oklahoma, for Defendant/Appellee


P. THOMAS THORNBRUGH, PRESIDING JUDGE:
¶1 Ralph R. Martinez appeals the decision of the district court upholding the 
revocation of Martinez's driver's license for intoxication while in actual 
physical control of a vehicle. On review, we affirm the decision of the district 
court.
BACKGROUND
¶2 On October 1, 2011, the Midwest City police received a citizen's report of 
a possible drunk driver. This report was transmitted over the police radio. The 
call was assigned to Officer Justin Stevenson. Another officer who had heard the 
call, Roland Branham, noticed a car sitting about five feet from the curb on a 
city street. Upon investigating, Officer Branham found Appellant Martinez 
apparently asleep in the vehicle. Branham woke Martinez, and asked him to exit 
the vehicle. Branham noted that Martinez attempted to exit the car while his 
seat belt was still fastened and that he had the car keys in his hand. Branham 
also noted a strong odor of alcohol in the vehicle. When Martinez exited the 
vehicle, Branham noted signs of intoxication. Officer Stevenson and another 
officer, Lieutenant Simonson, then arrived on the scene. Branham and Stevenson 
attempted to administer a sobriety test, but Martinez fell down while the test 
was being administered. Officer Branham then handcuffed Martinez and told him he 
was under arrest.
¶3 Officer Branham had already worked a 10-hour shift, and handed the matter 
to Stevenson. Stevenson checked to see that Martinez's vehicle was drivable, and 
observed signs of intoxication. He then placed Martinez in his patrol car, and 
told him he was under arrest. Stevenson transported Martinez to the Midwest City 
Jail, where Martinez agreed to submit to alcohol testing. The test showed that 
Martinez's blood alcohol was above the legal limit. Stevenson seized Martinez's 
license and made out the sworn report required by 47 O.S.2011 § 754. Martinez's 
license was revoked. Martinez requested an administrative hearing pursuant to 47 O.S.2011 § 754(D), at which the 
revocation of his license was upheld. Martinez then appealed the matter to the 
district court, which heard testimony from Officers Branham and Stevenson in a 
de novo proceeding on the merits.
¶4 The district court upheld the revocation of Martinez's license. Martinez 
now appeals that decision, arguing primarily that the initial revocation was 
void because of defects in the sworn report required by 47 O.S.2011 § 754, and because 
Stevenson lacked probable cause for his warrantless arrest of Martinez.
STANDARD OF REVIEW
¶5 "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. Dept. of Public Safety, 2006 OK CIV APP 25, ¶ 4, 131 P.3d 145, 146.
ANALYSIS
I. WHO MUST MAKE THE SWORN REPORTREQUIRED BY 47 O.S.2011 § 754?
¶6 Martinez's first allegations of error argue that the officer's sworn 
report submitted pursuant to 47 
O.S.2011 § 754(C) is facially defective unless made by the "arresting 
officer," and that Officer Stevenson did not qualify as an arresting officer in 
this context. This argument presents a first impression question of law 
regarding the terms "arresting officer," "officer," and "a law enforcement 
officer" as they are used in 47 
O.S.2011 § 754.
A. The Structure of § 754
¶7 Section 754 uses the phrase "arresting officer" once, in subsection 
(A):


A. Any arrested person [who tests positive for an illegal alcohol level] 
    . . . shall immediately surrender his or her driver license, permit or other 
    evidence of driving privilege to the arresting law enforcement 
    officer. The officer shall seize any driver license, permit, or other 
    evidence of driving privilege surrendered by or found on the arrested person 
    during a search. (Emphasis added).
The statute uses the phrase "the officer" rather than "arresting officer" in 
the next paragraph:


B. If the evidence of driving privilege surrendered to or seized by 
    the officer has not expired and otherwise appears valid, the officer 
    shall issue to the arrested person a dated receipt for that driver license, 
    permit, or other evidence of driving privilege on a form prescribed by the 
    Department of Public Safety. This receipt shall be recognized as a driver 
    license and shall authorize the arrested person to operate a motor vehicle 
    for a period not to exceed thirty (30) days. The receipt form shall contain 
    and constitute a notice of revocation of driving privilege by the Department 
    effective in thirty (30) days. The evidence of driving privilege and a copy 
    of the receipt form issued to the arrested person shall be attached to 
    the sworn report of the officer and shall be submitted by mail or in 
    person to the Department within seventy-two (72) hours of the issuance of 
    the receipt. The failure of the officer to timely file this report shall not 
    affect the authority of the Department to revoke the driving privilege of 
    the arrested person. (Emphasis added).
¶8 The third paragraph of the statute uses another phrase - "sworn report 
from a law enforcement officer":


C. Upon receipt of a written blood or breath test report reflecting that 
    the arrested person, if under twenty-one (21) years of age, had any 
    measurable quantity of alcohol in the person's blood or breath, or, if the 
    arrested person is twenty-one (21) years of age or older, 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. 
    (Emphasis added).
B. Who May Make the "Sworn Report"?
¶9 The initial question before us is whether the "sworn report from a law 
enforcement officer" required by § 754(C) is a sworn report by the "arresting 
officer" mentioned in § 754(A), as opposed to simply an officer with personal 
knowledge of the events sworn to. In Chase v. State ex rel. Dept. of Public 
Safety, 1990 OK 78, 795 P.2d 1048, the Oklahoma Supreme 
Court confirmed that the "sworn report" of § 754(C) is a statutory requirement 
for a license revocation, stating:


DPS concedes that the sworn report of an enforcement officer, which § 
    754(3) expressly mandates, is absent from the DPS paperwork and from the 
    record in this case. Although there is an exhibit before us entitled 
    "Officer's Affidavit and Notice of Revocation," the name of the person 
    designated in this document as the affiant differs from that of the 
    individual whose signature appears on it. This 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. at ¶ 5, 795 P.2d at 1050 (footnotes omitted).
¶10 Chase does not characterize the required report as one by the 
"arresting officer" in the body of the Opinion. Nor does § 754(C) directly state 
that the "sworn report from a law enforcement officer" must be from the 
arresting officer, but facially requires only a report from a law 
enforcement officer who 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."
¶11 However, in a footnote within the Chase opinion, Justice Opala 
used the phrase "arresting officer" when paraphrasing the language of subsection 
C. See Chase at n.1, 795 P.2d at 1049, n.1. This footnote is 
clearly dictum, as the issue in Chase was not whether the affiant was an 
"arresting officer" but whether there was a sworn statement at all.1 Further, after 
Chase was decided, the statutory text on which this dictum may rely was 
changed by the Legislature.2 Therefore, we find no precedential authority on this 
question.
C. The History and Structure of § 754
¶12 Finding no precedential authority, we turn first to the statutory 
language. Subsection A of the statute refers to the arresting officer 
seizing the license of the driver. This is the only reference to an arresting 
officer we find in this section. Subsection B then refers to the officer 
attaching to the sworn report the evidence of driving privilege surrendered to 
or seized by the officer.
¶13 Martinez argues that "the officer" noted in subsection B is clearly the 
"arresting officer" from subsection A. Therefore, Martinez argues, the "sworn 
report" mentioned in subsection B is the report of the arresting officer, 
and the sworn report of subsection C that provides the basis for revocation must 
also be the report of the arresting officer.
¶14 Our review of the legislative history of § 754 leads us to a different 
conclusion. Prior to a 1999 amendment, § 754(B) specifically required that:


The seized license, permit, or other evidence of driving privilege and a 
    copy of the receipt form issued to the arrested person shall be attached to 
    the sworn report of the arresting officer and shall be submitted by 
    mail or in person to the Commissioner of Public Safety or a designated 
    representative within seventy-two (72) hours of the issuance of the 
    receipt.
See 47 O.S.1991 § 
754(B)(emphasis added).
¶15 Since the 1999 amendment, § 754(B) has stated that:


The evidence of driving privilege and a copy of the receipt form issued 
    to the arrested person shall be attached to the sworn report of the 
    officer and shall be submitted by mail or in person to the Department 
    within seventy-two (72) hours of the issuance of the receipt. . . . 
    (Emphasis added).
The Legislature clearly removed the subsection B reference to the "sworn 
report of the arresting officer" and substituted the "sworn report of the 
officer." We must interpret this change as a legislative revocation of any 
pre-existing requirement that the sworn report be made by the arresting 
officer.3 The 
logic of Martinez's argument is therefore reversed: Because the Legislature did 
not require the sworn report in subsection B to be made by the arresting 
officer, the Legislature did not require the sworn report in subsection C to be 
made by the arresting officer.
D. The Function of the § 754(C) Sworn Report
¶16 On appeal, the parties engaged in considerable argument that the sworn 
statement of "reasonable grounds" to believe the arrested person was in actual 
physical control of a motor vehicle is intended to function as an affidavit 
of probable cause demonstrating either the legality of the original stop or 
the subsequent warrantless arrest. Martinez argues that the question of probable 
cause for arrest is determined by this sworn statement. We reject this 
argument.
¶17 Chase is clear that the § 754(C) sworn report functions only as 
"administrative documentation"4 and is taken as true
unless facially defective in the initial automatic revocation 
proceeding. The sworn statement states only a prima facie case for 
revocation, upon which revocation is automatic. The DPS does not question the 
contents or authorship of the statement if it facially states a case for 
revocation.
¶18 To illustrate this point, assume a situation in which all necessary facts 
stated in the sworn report were fabricated by an officer with no personal or 
received knowledge of the facts. Although a trial may later establish this 
defect, and invalidate the revocation, the report is still not defective on 
its face, if it states the required allegations, and revocation is still 
automatic on receipt of the fabricated report and the alcohol test 
results.
¶19 Thus, the report does not establish as a matter of law whether the 
initial stop was constitutional, nor does it establish establish that probable 
cause for APC arrest actually existed. It establishes only the prima 
facie case for revocation. The question of the actual legality of the stop 
or arrest is first raised in the post-revocation administrative 
appeal, and is clearly not fully litigated until the license holder seeks 
trial in the district court, where the issue is litigated de novo on the 
merits, pursuant to 47 O.S.2011 § 
6-211. The actual legality of a stop or arrest is finally determined by 
trial de novo in the district court, not by the content or author of the 
§ 754(C) sworn report. As the report does not function as an affidavit of 
probable cause to arrest, it need not be made by the "arresting officer."
E. Conclusion to Section I
¶20 We find that the purpose of the sworn report required by 47 O.S.2011 § 754(C) is to 
establish the prima facie facts of intoxication and vehicle operation or 
control necessary to provide a basis for revocation. It does not function as an 
affidavit of "reasonable suspicion or probable cause" that a stop or arrest was 
justified. These issues may be preserved by an administrative appeal pursuant to 
§ 754(D), and then tried de novo by the trial court. It is the hearing on 
the merits, not the contents of the § 754(C) sworn report, that determines the 
legal question of reasonable suspicion or probable cause.
¶21 Because the § 754(C) report does not function as an affidavit of probable 
cause for warrantless arrest, but merely establishes a prima facie case for 
revocation, it does not need to be by an "arresting officer." We find that the 
statutory language of 47 O.S.2011 § 
754(C), requiring a sworn report from a law enforcement officer, does not 
mandate that the sworn report be made by the "arresting officer."
¶22 We recognize that this decision conflicts with the statement of Division 
I of this Court in Clawson v. State ex rel. Dept. of Public Safety, 2007 OK CIV APP 89, ¶ 8, 168 P.3d 258, 260, that § 754(C) 
requires an arresting officer's sworn report.5 We do not contend that Clawson 
was incorrectly decided, but note that, like Chase, Clawson did 
not address the question of whether an arresting officer must make the sworn 
report, but addressed the questions of scrivener's errors in the sworn report. 
We further note that Clawson relies entirely on footnote one of 
Chase, and we have previously determined both that this footnote is 
dictum and that its basis has been superseded by legislative action.
II. OTHER FACIAL DEFICIENCIES IN THE SWORN STATEMENT
¶23 We have rejected Martinez's theory that revocation of his license was 
illegal because the § 754(C) sworn statement was not made by Officer Branham. 
Martinez further argues that Officer Stevenson did not have probable cause to 
arrest at the time Stevenson placed him under arrest, because Stevenson had not 
received sufficient information from Officer Branham at the time of the "second" 
arrest to develop probable cause for APC. However, this alleged defect in the 
arrest is not patent on the face of the § 754(C) sworn statement. Chase 
holds that a revocation is void ab intio for lack of a statutory 
prerequisite only if the sworn statement is defective on its face. Any 
defect in Officer Stevenson's probable cause for arrest is not evident on the 
face of the sworn statement. Therefore we find that the rule of Chase is 
not applicable in this case. Martinez was not entitled to a reversal of the 
revocation of his license based on any aspect of Officer Stevenson's § 754(C) 
sworn statement.
III. PROBABLE CAUSE FOR ARREST AND "RE-ARREST"
¶24 Irrespective of the effect of the § 754(C) sworn statement, Martinez 
argues that he was "re-arrested" by Officer Stevenson, and thus the revocation 
could still be reversed if Officer Stevenson lacked probable cause at the 
time of this re-arrest. The record at trial is entirely clear that Martinez was 
arrested, with probable cause,6 by Officer Branham, and remained in police custody 
from that point forward. No re-arrest was necessary. The only remaining question 
is, as Officer Branham had probable cause to arrest Martinez for 
APC, could Officer Stevenson then request Martinez to take a blood test? 
Under Oklahoma's implied consent law, a valid arrest is necessary to authorize a 
police officer to request submission to a chemical test for blood alcohol. 
White v. Okla. Dep't of Pub. Safety, 1980 OK 21, ¶ 6, 606 P.2d 1131, 1132. The implied 
consent statute, 47 O.S.2011 § 
751(A)(1), is clear that consent is deemed given upon an arrest for "any 
offense . . . alleged to have been committed while the person was operating or 
in actual physical control of a motor vehicle upon the public roads, . . . while 
under the influence of alcohol or other intoxicating substance . . . ." Martinez 
was arrested by Officer Branham, with probable cause, for actual physical 
control of a vehicle while intoxicated. At that time Martinez was deemed to have 
consented to a blood test by law. We find no indication in case law that this 
statutorily created consent is revoked when the original arresting officer 
passes the arrestee on to another officer. Therefore no "second arrest" for APC 
was necessary for consent to be established.7
IV. THE TWO-HOUR PERIOD FOR A BREATH TEST
¶25 Martinez's final argument is that 47 O.S.2011 § 754(F) requires that 
his blood alcohol test be performed within two hours of his arrest, and his test 
was not performed within two hours of his "initial" arrest by Officer Branham. 
This claim is possibly better described as one pursuant to 47 O.S.2011 § 756(C), which states, 
"To be admissible in a proceeding, the evidence must first be qualified by 
establishing that the test was administered to the person within two (2) hours 
after the arrest of the person." However, with the exception of certain 
jurisdictional questions, we have appellate jurisdiction only to review issues 
raised in the district court, and the district court's findings. See
Arkansas Louisiana Gas Co. v. Cable, 1978 OK 133, 585 P.2d 1113 (citing 12 O.S.1971 § 992). We find no 
record that this claim of error was made below, or that any objection based on 
the timing of the breath test evidence was made. We cannot take up this claim of 
error for the first time in our review of the district court's decision.8
V. FEES
¶26 Martinez requests we award attorney fees in this matter. Fee requests in 
appellate briefs must comply with Oklahoma Supreme Court Rule 1.14, which 
requires that the request state the statutory and decisional authority allowing 
the fee. Martinez's request in his appellate brief for appeal-related costs and 
fees is denied for failure to comply with this rule.
CONCLUSION
¶27 We find that the § 754(C) sworn statement may be signed by an officer 
with personal knowledge of the facts stated at the time of signing, and that 
officer need not be the "arresting officer." We find the § 754(C) sworn 
statement in this case was not facially defective, and Chase v. State ex rel. 
Dept. of Public Safety therefore does not apply. We find that Officer 
Stevenson's arrest of Martinez and subsequent breath test were lawful, and the 
district court did not err in upholding the revocation of Martinez's 
license.

¶28 AFFIRMED.

RAPP, J., and GOODMAN, J., concur.

FOOTNOTES

1 The 
Chase Court found the sworn statement to be defective because, on its 
face, the statement was attributed to one officer but clearly signed by another. 
The Court then determined that the statutory prerequisite of a sworn statement 
was lacking because the statement contained a "patent deficiency" that rendered 
the resulting revocation invalid. 1990 OK 78 at ¶ 5, 795 P.2d at 1050. 
Indeed, the rule of Chase raises the question of whether a statement 
signed by an officer who is not the arresting officer could be facially 
deficient at all, as the standard affidavit does not appear to identify the 
status of the signing officer. Although it could later be shown that the 
officer making the statement was not the "arresting officer," this would not 
render the statement facially deficient.

2 See our 
analysis of the 2001 version of § 754 compared to the version in force at the 
time of Chase in Section I (C) of this Opinion

3 When 
the Legislature amends a statute after its meaning has apparently been settled 
by case law, it has expressed its intent to alter the law. Copeland v. 
Stone, 1992 OK 154, ¶ 10, 842 P.2d 754, 759. While we cannot 
say with any certainty that the Legislature made this change in response to the 
dictum at note 1 of Chase, or subsequent Court of Civil Appeals' opinions 
repeating the Chase dictum, the timing indicates that this change may 
have been related to Chase and the subsequent opinions.

4 See 
Chase at ¶ 6, 795 P.2d at 1050.

5
Clawson states at ¶ 8, 168 P.3d at 260, "The applicable statute here is 
47 O.S.Supp.2005 § 754(C). It 
requires a sworn report from the arresting officer." (footnote 
omitted).

6 See 
Cudjoe v. State, 1974 OK CR 75, 
521 P.2d 409; Hughes v. 
State, 1975 OK CR 83, 535 P.2d 1023; Mason v. State, 
1979 OK CR 132, 603 P.2d 1146, for similar examples 
of actual physical control of a stopped vehicle.

7 We 
further note that the record is clear that Officer Stevenson observed Martinez 
in an evident state of advanced intoxication in a public place. The Oklahoma 
Court of Criminal Appeals has repeatedly ruled that public intoxication alone 
can give probable cause for arrest. See e.g., Jackson v. State, 1968 OK CR 35, 437 P.2d 559; Kincannon v. 
State, 1975 OK CR 210, 541 P.2d 1339. In addition, see 
Graves v. State ex rel. Dept. of Public Safety, 1975 OK 142, ¶ 9, 541 P.2d 1326, 1327-28, where the 
Oklahoma Supreme Court found that a record which revealed the commission of at 
least one public offense in the presence of the arresting officer, would not 
support a conclusion that the arrest was illegal. Therefore, any arrest of 
Martinez by Stevenson was legal. Additionally, even if a "second arrest" was 
necessary, we note that the trial record regarding what facts Branham informed 
Stevenson of, and when he did so, is ambiguous and subject to differing 
interpretations. We 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 Pub. Safety, 2006 OK CIV APP 25, ¶ 4, 131 P.3d 145, 146. The evidence was 
such that the district court could find that Branham informed Stevenson of the 
facts that indicated APC before Stevenson arrested Martinez. We find no grounds 
to overturn such a finding

8 We 
note, however, that a greater delay is to the advantage of the arrested driver, 
as blood alcohol levels caused by drinking before arrest will likely have peaked 
prior to the expiration of this two-hour period.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Criminal Appeals Cases CiteNameLevel 1974 OK CR 75, 521 P.2d 409, CUDJOE v. STATEDiscussed 1975 OK CR 83, 535 P.2d 1023, HUGHES v. STATEDiscussed 1979 OK CR 132, 603 P.2d 1146, MASON v. STATEDiscussed 1968 OK CR 35, 437 P.2d 559, JACKSON v. STATEDiscussed 1975 OK CR 210, 541 P.2d 1339, KINCANNON v. STATEDiscussedOklahoma Court of Civil Appeals Cases CiteNameLevel 2006 OK CIV APP 25, 131 P.3d 145, HOLLIS v. STATE ex rel. DEPT. OF PUBLIC SAFETYDiscussed at Length 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 at Length 1992 OK 154, 842 P.2d 754, 63 OBJ        3496, Copeland v. StoneDiscussed 1975 OK 142, 541 P.2d 1326, GRAVES v. STATE, DEPARTMENT OF PUBLIC SAFETYDiscussed 1980 OK 21, 606 P.2d 1131, White v. Oklahoma Dept. of Public SafetyDiscussed 1978 OK 133, 585 P.2d 1113, ARKANSAS LOUISIANA GAS CO. v. CABLEDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 992, Errors in Perfecting Appeal Must Be Raised Promptly - Waiver of Defect or ErrorCitedTitle 47. Motor Vehicles CiteNameLevel 47 O.S. 6-211, Right of Appeal to CourtCited 47 O.S. 751, Implied Consent to Breath, Blood, or Other Test for Determining Concentration of Alcohol or Other Intoxicating SubstanceCited 47 O.S. 754, Surrender or Seizure of License - Receipt as Temporary License - Revocation or Denial of Driving Privilege - HearingDiscussed at Length 47 O.S. 756, Admission of Evidence Shown by TestsCited










