No Valid Rules for Intoxilyzer 8000 Calibration
Standard wisdom holds that a person arrested for drunk driving in Oklahoma automatically loses their license. Unless a driver appeals, their license is systematically suspended soon after a drunk driving arrest. The suspension process is an administrative proceeding apart from any related criminal case.
A recent civil appeals court ruling has turned the standard wisdom on its head. For now, the Department of Public Safety might not be able to revoke licenses of drivers arrested on drunk driving charges.
Why? The Department of Public Safety has not been following the rules when it revokes drivers licenses after drunken driving arrests.
According to an Oklahoma Court of Civil Appeals opinion released for publication in November, 2105 there are no valid rules in place approving gas cylinders that verify accuracy of breathalyzers used in Oklahoma DUI drivers license suspensions. The court found that certain Board of Tests for Alcohol and Drug Influence regulations governing operation of the Intoxilyzer 8000 do not amount to rules as required by law.
The Board of Tests oversees operation of blood, breath, saliva and urine testing equipment in Oklahoma, including the devices used by law enforcement agencies. As a state agency, it can only promulgate rules in compliance with the Administrative Procedures Act.
We have seen this before. In 2003, the Oklahoma Court of Civil Appeals similarly found the State had failed to properly promulgate rules required for breathalyzers to pass legal muster. Breath tests presumed to be rock solid evidence were suddenly inadmissible. Drivers facing DUI charges got their licenses back.
If the Oklahoma Supreme Court declines to review the appeals court, or upholds the latest DUI breathalyzer decision after further review, the case will be published as precedent. The effect could be to stop DPS drivers license revocations based on Intoxilyzer 8000 evidence, at least temporarily.
‘Delegatus non potest delegare’
It’s simple, really. Bureaucrats at state agencies can not just make up rules. Oklahoma’s Administrative Procedures Act lays down the law for making rules. Okla. Stat. tit. 75 § 250-323. The process includes published notification of an impending rule, public input, legislative review and review by the governor.
State agencies cannot bypass the rule making process by promulgating a rule that allows them to says they do not need to follow the process, the appeals court said. Yet the Board of Tests did just that.
Then based on its newly adopted fast-track rule making rule, it bypassed publication, and did an end run around legislative and gubernatorial approval of a subsequent rule.
Essentially, bureaucrats had promulgated a rule that delegated to themselves rule making authority otherwise delegated to the legislature and the Governor. That unlawful delegation runs afoul of a legal principle that says a person delegated with legal power may not further delegate that power to another, the Oklahoma County District Court observed in its March 25, 2015 decision. Expressed in Latin, that principle is “Delegatus non potest delegare.”
In Eric Sample v. State, (2015 OK Civ App __), the Oklahoma Department of Public Safety argued otherwise. DPS argued that the Board of Tests had legally adopted a rule that let it authorize breathalyzer equipment by resolution at any of the Board’s public meetings.
The Oklahoma County District Court concluded the fast-track rule was not lawfully promulgated. The appeals court affirmed the trial court’s decision.
Presuming a final mandate is handed down in the case, anyone whose license is revoked in Oklahoma for drunk driving – based on evidence involving the Intoxilyzer 8000 — could challenge the revocation. At least, that might be the case until the Board of Tests lawfully promulgates a rule determining which calibration cylinders may be used with the Intoxilyer 8000. Or unless the Oklahoma Supreme Court reverses the appeals court.
The Department of Public Safety on Nov. 30, 2015 petitioned the Oklahoma Supreme Court to review Sample. DPS argues that the Board of Tests can promulgate rules by resolution under the statutorily promulgated rule that allows it to to delegate rulemaking authority.
DPS further argues that a trial court cannot reverse agency rules during a drivers license revocation hearing and that the time when the rule can be property challenged has lapsed.
Intoxilyzer 8000 on the Rocks
The Oklahoma County District Court’s decision narrates the troubled history of the Intoxilyzer 8000 in Oklahoma’s regulatory processes. In a 2014 case, the Oklahoma Supreme Court ruled that the Board of Testing could not rely on hearsay evidence to establish that calibration cylinders used in the breathalyzer contained the correct ratio of nitrogen and ethanol. Muratore v. State ex rel. Dept. of Public Safety, 2014 OK 3
In response to that 2014 case, the Board had passed a resolution approving cylinders already in use, ostensibly to be retroactively applied to all drivers license revocation cases since June 12, 2008.
The Oklahoma County District Court in Sample noted that a state board’s resolution authorizing use of specific reference cylinders as evidence intruded on the authority of courts to determine what evidence is admissible. The attempt at retroactive rule-making by resolution further intruded on the authority of the Board itself, which was made of up different members during the years the current Board attempted to impose retroactive authority, the court noted.
Along with the 2014 Muratore case, Sample is another addition to a growing stack of cases in which an Oklahoma court rejected Intoxilyzer 8000 results. In 2013, the Oklahoma Court of Criminal Appeals ruled that a trial court erred when it admitted breathalyzer test results into evidence. Loren Joseph Gier vs. The State of Oklahoma (No. F-2013-691)
In that case, the criminal appeals court found that no rule had been adopted to establish maintenance procedures for the breathalyzer. The State offered as a witness a former Board of Testing employee who said he once had a printed copy of maintenance procedures but he did not keep the document after he left the agency.
Hey State, Why Not Follow the Rule?
Whether the Board of Tests will take advantage of what should be an obvious solution remains to be seen. The Board could simply submit for public, legislative and gubernatorial review proposed rules authorizing Intoxilyzer 8000 maintenance procedures, operation procedures and reference cylinders.
That legally sufficient step to get rules on the books might or might not satisfy courts that evidence from the Intoxilyzer 8000 is reliable. The problem is that the new generation of breathalyzer relies on an internal computer. The manufacturer has been reluctant to provide details of its computer software to state agencies or courts.
Without details about how the software functions, or a person familiar with the software available to testify about how it works, courts might still conclude evidence about how the device works is no more than hearsay.
Without detailed information about how the machine operates, courts might allow defendants to challenge test results even though Oklahoma law gives great weight to the reliability of breathalyzers the Board of Tests has approved. It has happened elsewhere.
Ohio’s Supreme Court ruled in 2014 that a person charged with driving under the influence could challenge the accuracy of specific results from a breathalyzer, even though the Ohio court’s 1984 precedent does not allow defendants to generally challenge the reliability of approved breathalyzers. The Ohio court said that, unless the defendant is provided evidence about the accuracy of specific tests, the breathalyzer evidence could be excluded. Cincinnati v. Ilg, Slip Opinion No. 2014-Ohio-4258.
Free Consultation: Tulsa DUI Attorney
If you have been arrested for DUI or DWI in Oklahoma, and the DPS has moved to suspend your drivers license, you must act immediately to defend your rights. Whether or not the DPS drivers license suspension process is suspended by the recent Oklahoma Court of Civil Appeals decision, you have only 15 days after your arrest to appeal your suspension.
An appeal can sometimes result in limited driving privileges for work or family travel short of a full suspension. Even if you do not overturn your suspension or get limited driving privileges, an appeal will temporarily halt your suspension until your hearing. If you do not appeal, the suspension takes effect 30 days after your arrest and can last anywhere from six months to several years.
For a free consultation with an Oklahoma DUI attorney in Tulsa, contact Wirth Law Office at (918) 879-1681, or send your question using the email form at the top of this page.