Oklahoma’s Criminal and Civil Courts Collide – Again
Although police in Oklahoma must follow state rules to to use breathalyzer tests in DUI cases, prosecutors do not need to prove those rules were properly adopted, the Oklahoma Court of Criminal Appeals concluded in Nov. 30, 2016 decision.
In a defiant smirk at Oklahoma’s two-headed court system, the criminal appeals court said administrative rule-making requirements are not “in any way concerned with” criminal law rule-making – even in cases involving the same rule adopted by the same agency.
The Oklahoma Court of Civil Appeals in January, 2016 overturned a Board of Test for Alcohol and Drug Influence rule the Dept. of Public Safety cites to authorize breathalyzer tests as evidence in DUI drivers license revocation hearings. The Oklahoma Supreme Court declined to review the decision. Sample v. State 2016 OK CIV APP 62.
The Sample decision effectively invalidated the current generation of breathalyzer tests for purposes of administrative drivers license revocations, and for appeal of those administrative decisions in state courts. Yet, Oklahoma civil courts’ jurisdiction only goes so far.
Those unfamiliar with Oklahoma civics may be surprised to learn ours is one of only two states endowed with a bifurcated court system. District courts hear both civil and criminal cases, but from there, things go two different directions.
The Oklahoma Supreme Court gets the last word in civil cases. The Oklahoma Court of Criminal Appeals is the final arbiter of criminal cases. Conflicts sometimes arise. In recent years, the rare two-headed system has frequently reached different conclusions on similar questions – ranging from counting days to matters of life or death.
After the Oklahoma Supreme Court in September, 2016 declined to review Sample, Oklahoma DUI attorneys were eager to learn how the Oklahoma Court of Criminal Appeals would address the invalidated rule. The rule that authorizes breathalyzer tests for civil drivers license revocation hearings also governs procedures for breathalyzer tests in criminal DUI prosecutions.
The criminal appeals court soon settled the question with a published decision in State v. Hovet 2016 OK CR 26. Police must follow state rules, but prosecutors are “not required to prove that the Board’s rules, etc., in effect at the time of a prosecution were properly adopted under the APA,” the criminal court concluded.
Because Rules Adopted by Fiat Still Apply
Controversy erupted around the Board of Test rules after the board promulgated a rule authorizing itself to adopt additional rules by resolution at board meetings rather than following the more circuitous procedure detailed in the Administrative Procedures Act. Under the Act, before an agency can adopt a rule, the proposed rule must first be published for public review, and pass scrutiny by both the legislature and governor.
In Sample and in Hovet, the rules in question authorized police use of the Intoxilyzer 8000 breathalyzer machine in DUI cases. When police follow prescribed procedures, tests administered on the machine could be admitted as evidence of intoxication in criminal DUI trials. In civil DUI drivers license revocation hearings, the test carries even more weight. In short, if a driver fails the breathalyzer test, their license is automatically suspended unless the driver demands a hearing.
Because breathalyzer results are limited to evidence of intoxication in criminal cases, but are automatically statutory grounds for revocation of a license in civil cases, the entire matter might seem like a tempest in a tea pot outside of legal circles.
In a criminal case, a person could conceivably argue the results could not be trusted, even though they are admitted into evidence. In civil revocation cases, the results are treated more or less as factual proof of intoxication. Yet the question matters because it effects how well the average person can understand what the law expects of them.
In Hovet, the criminal court effectively said judges or juries may weigh breathalyzer evidence, just as they always have. (Of course, juries in Oklahoma overwhelmingly weigh breathalyzer results favorably to the State.) In Sample, the civil court said the current generation of breathalyzers were out unless the Board of Tests properly adopts a valid rule. Of course, by then the State had already tried to patch up the faulty rule.
Weeks before the criminal appeals court decided Hovet, the Board of Tests had adopted an emergency rule intended to replace the flawed rule tossed out by the Oklahoma Supreme Court. This time, the Board secured the governor’s signature on the rule. Although it remains to be seen how the new rule will stand up to scrutiny, for now prosecutors can argue a valid breathalyzer rule is in place.
The Court of Criminal Appeals decision in Hovet nonetheless sparked concern among Oklahoma criminal defense attorneys. In what world are police required to follow a State rule before evidence can be admitted at trial, but prosecutors need not prove the state rule was lawfully adopted?
Go Challenge Bad Rules Somewhere Else
In Hovet, the court cited its precedent in a 1974 case, Westerman v. State, as authority that “[n]o test run on that equipment is valid unless the testing procedures comply with the rules.”
Yet, “[s]hould a litigant wish to challenge the method an agency uses to promulgate a rule under the APA, that challenge lies in civil court,” the Hovet court scolded attorneys who cited APA procedures for adopting rules.
Never mind that a civil court had indeed declared the rule invalid. As the criminal appeals judges noted in Hovet, the APA says a rule is presumed valid only until declared otherwise by a district court or the Oklahoma Supreme Court.
In Sample, a district court declared the breathalyzer rule invalid. In declining to review the lower appeals court, the Oklahoma Supreme Court effectively upheld the district court that declared the rule invalid. Likewise, in Hovet, the district court had declared the rule invalid.
By refusing the recognize those decisions declaring the rule invalid, the Oklahoma Court of Criminal Appeals seemed to leave no door open for criminal defendants who seek to challenge an administrative rule applied in a criminal case. You can only challenge validity of those rules in civil court, and civil court decisions do not apply to us, the court seemed to say.
Is Secret Code Scientific Evidence?
Procedural arguments surrounding admissibility of Intoxilyzer 8000 results, weighty as they may be, only scratch the surface of the underlying problems with the latest generation of breathalyzers. Unlike earlier breathalyzers that could be taken apart and explained by experts, the new breathalyzer is digital. The company that produces the machine does not release programming code, nor does it make company experts available to testify about how the machine works.
Earlier breathalyzers could arguably be defended based on scientific knowledge. This causes that to move, according to this physical principle, then the movement is measured here using this known method, producing these results, experts could testify.
Digital equipment operating on proprietary software lacks the scientific underpinnings of other laboratory equipment cited in criminal trials. Whether proprietary digital breathalyzers stand up to rules governing scientific evidence remains to be seen.
To determine whether expert or scientific testimony in Oklahoma courts is admissible, judges rely on what is known as a Daubert test. The test asks whether:
- the technique can be or has been tested,
- whether the technique has been subjected to peer review,
- whether there is a known or potential error rate and whether standards control operation of technique and
- whether a relevant scientific community has generally accepted the technique.
We can speculate that an Oklahoma court willing to admit evidence based on compliance with invalid rules would lean as far as it must to find that secret code is accepted science, tested and subjected to peer review – even though nobody outside the company making the machine knows what the code actually does.
Do Bad Rules Outweigh Good Science?
The Board of Tests emergency rule avoided tedious scientific review by citing a federal standard. Instead of subjecting mysterious particularities of the Intoxilizer 8000 to potential legislative hearings, the board’s newest rule cited the U.S. DOT’s National Highway Traffic Safety Administration list of approved breathalyzers.
For now, any breathalyzer on the federal government’s list is good enough for Oklahoma. As for calibrating the Intoxilyzer 8000, the board said any container marked by the manufacturer as containing the right amount of nitrogen gas could be used. If the label says nitrogen, it is nitrogen in Oklahoma.
A final question that arises from Hovet is whether the court intends to replace the Daubert rule for scientific evidence with its new Hovet rule. If a state agency has an administrative rule saying something can be used as evidence – whether or not the rule has been invalidated in civil court — does that forego any opportunity to challenge admissibility of the scientific procedure?
In at least one state – Ohio – a court excluded some Intoxlizer 8000 results as unreliable by scientific standards. Ohio prosecutors cited a case that said results from a breathalyzer approved by state rules are presumed to be reliable and admissible. State v. Vega 12 Ohio St. 3d 185 (1984) (download pdf). A trial court set aside results from a particular generation of Intoxilyzer 8000 software after finding that version did not properly implement scientific principles upon which legislatively approved test results were based.
In the Ohio case, defendants cited the testimony of a senior engineer involved in manufacture of the breathalyzer, who said results could be manipulated by operators who instruct test subjects to continue blowing into the machine until it reports a higher alcohol concentration. Experts also testified that generation of Intoxilyzer 8000 had not been tested for interference from cell phones, and that it could not reliably exclude mouth alcohol from breath alcohol.
The Ohio court further noted that the Intoxilyzer 8000 had not been subjected to any scientific review outside the law enforcement community. The court concluded that, although the Intoxilyzer 8000 was presumed reliable by law, defendants had rebutted that presumption and that Ohio courts are not required to admit breathalyzer results from the device as evidence.
Strategy Session: Tulsa DUI Attorney
If you charged with DUI in Oklahoma, it is urgent that you retain counsel familiar with the rapidly changing context of Oklahoma DUI law. Defense of your drivers license in civil proceedings can require a different approach than defending against criminal DUI charges.
To schedule your initial strategy session with a DUI attorney in Tulsa, Ok., contact the Wirth Law Office criminal defense division. Call (918) 879-1681 or send your question using the form at the top of this page.
