DPS Revoked License Contrary to Case Law
This seldom happens. The Oklahoma Court of Civil Appeals in October, 2017 ordered Dept. of Public Safety to pay a man’s DUI attorney $8,300 for his fees in his battle to challenge the DPS revocation of his drivers license.
What’s more, the decision was published as precedent setting Oklahoma law. The award punctuates DPS’ ongoing battle to defend drunk driving arrest procedures after courts have repeatedly determined certain procedures are flawed.
DPS fighting style, instead of cutting its losses and fixing flawed procedures, is to continue using challenged procedures until every appeal is exhausted. Then it tries to clean up its mess. Or not.
It would seem appellate courts had already settled the law regarding Oklahoma drivers license revocations when an Edmond, Oklahoma, man was arrested Nov. 16, 2014 for drunken driving. DPS had been on judicial notice since late 2013 forms it provided Oklahoma police officers to notify drivers of revocations were insufficient. Tucker v DPS 2014 OK CIV APP 45.
Oklahoma’s motor vehicle code allows the Dept. of Public Safety to seize and revoke the drivers license of people arrested for driving under the influence. A revocation requires a law enforcement officer’s sworn statement that the officer had reasonable grounds to believe the accused had operated a motor vehicle under the influence of alcohol.
Copies of forms police officers give drivers when they seize a license establish the DPS’ subject matter jurisdiction if the driver appeals the revocation. Forms in use through at least 2014 did not include the statement required by Oklahoma law. They did not include the officers statement that the officer believed the driver to be under the influnce. Simply put, they more or less said “your driver’s license is suspended. Stop driving.”
The agency continued using the forms long after Oklahoma courts found them deficient. DPS officials advised Oklahoma police officers to supplement the flawed forms by sending out supplemental affidavits with necessary language. That extra form does not fix it, Oklahoma courts subsequently ruled. Again, DPS appealed. Shoptow v DPS 2016 OK CIV APP 32.
So it was in November 2014. At least some police agencies apparently continued using the faulty forms along with supplemental affidavits. Drivers continued driving under temporary licenses as they waited interminably to learn if their revocations would eventually be upheld and enforced.
The driver who was awarded attorneys fees three years later would wait 22 months for a hearing to determine whether his drivers license would be revoked. Then, DPS revoked his license contrary to newly established case law, rescinded the revocation and revoked his license again – apparently due to a clerical error the second time.
It would seem DPS could have avoided the problem by distributing compliant affidavits to police officers after May, 2014, when the Oklahoma Supreme Court declined to review Instead, the agency relied the bandage forms to supplement the fatally flawed affidavits.
All the while, the number of backlogged drivers license revocation appeals grew into the thousands. Many if not most of those cases were tainted either by the affidavit error, other procedural errors or by the long wait.
Oklahoma courts have since ruled that drivers are entitled to a hearing within 60 days of being notified their license will be revoked. We can only wonder how many illegal or mistaken revocations DPS has made in those cases, long after courts said delays violated drivers rights to a speedy trial.
DPS Illegally Revoked License – Twice
Even considering the agency’s propensity to hold out until every appeal is exhausted, DPS actions in the Edmond man’s case defy explanation.
On Feb. 2, 2016, the Oklahoma Supreme Court declined to review lower courts’ decisions rejecting the DPS’ fix-it form.
Nearly three weeks after the high court settled that case, on Feb. 23, 2106, DPS finally held a hearing in the man’s Nov. 2014 revocation notice. At the hearing, a flawed affidavit and the then fatally flawed fix-it form served as State’s evidence the man’s license should be revoked.
A hearing officer nonetheless revoked the man’s license. That revocation order was dated March 24, 2016.
Steering away from a costly appeal in District Court, the man’s DUI attorney informally confronted DPS with the Oklahoma Supreme Court’s latest decisions. In an April 26, 2016 order — mailed a week later — a hearing officer agreed.
In that order, DPS reversed the March 24 revocation order. The man might have thought he was good to go at that point, with his license still valid.
That was not the end of it. Two months later, on June 4, 2016 DPS notified the man his license was revoked, effective 11 days prior.
This time, the man’s DUI attorneys appealed the revocation in Oklahoma County District Court. Of course the court reversed the illegal revocation order. The man’s attorneys asked the court to make DPS pay $8,300 in attorneys’ fees and expert witness costs.
Of course, DPS objected. Again, DPS lost. Again, DPS appealed. Again, DPS lost. The courts awarded attorneys fees.
This time, the Oklahoma Court of Civil Appeals published its opinion. That means the decision is legal precedent that can guide future decisions. The man’s DUI attorney also filed a motion to make DPS pay additional costs and attorney fees for defending the district court’s $8.300 award when DPS appealed.
It was not the first time Oklahoma courts have made DPS pay attorneys’ fees when the agency lost in a court case. Nor was it the first published precedent involving attorneys’ fees in drivers license revocations. That distinction goes to Miller v. DPS 1996 OK CIV APP 71.
The man’s motion for attorney’s fees cited three other unpublished cases where courts made taxpayers – by way of DPS – pay attorney’s fees when it lost.
DPS Says Appeals Court Got It Wrong
If you are a savvy reader, by now you are seeing a pattern. DPS lost on appeal. The loss was published as precedent in Oklahoma law. Surely DPS attorneys could find something to appeal in that.
Of course they did. On Nov. 14, 2017, the agency filed a motion to withdraw the opinion from publication. To paraphrase that motion “Nothing to see here, keep moving,” DPS pleaded.
More precisely “the decision does not resolve any novel or unusual legal issues” the DPS motion states.
No unusual legal issues? Maybe tell that to the DPS attorneys who argued in district court and again on appeal against paying the man’s attorney’s fees. They did not seem to grasp the usual legal issues.
But there’s more. It’s not that DPS did not understand the law, says the DPS motion. The Oklahoma Court of Appeals “misapplies existing law in that it holds that a clerical error which resulted in a temporary revocation of a driver license can be considered a proceeding that was brought without reasonable basis.”
No. That’s not it at all, the appeals court has already explained in its published decision. It’s not just that DPS mistakenly revoked the man’s license after telling him it would not be revoked.
DPS held a hearing, listened to case law and decided to revoke his license even in the face of case law to the contrary. Then DPS reversed itself. Then it mistakenly revoked his license again.
And no, it would not be a simple matter for the man’s attorneys to just call DPS – again — and tell somebody there they goofed again, the court explained. It was reasonable for the man’s DUI attorneys to appeal the second mistaken revocation in District Court. DPS had not proven itself easy to deal with, the court noted.
And by the way, the appeals court instructed DPS, yes, $8,300 is a reasonable attorneys’ fee for dealing with your staff and attorneys when they repeatedly defy case law and issue errant revocations.
Strategy Session: Tulsa DUI Attorney
It is painfully clear to someone with experience: dealing with DPS bureaucrats in drivers license revocations can be a tedious, complicated matter. DPS in this case steamrolled over a driver after courts have published black letter law in his favor.
If you have a drivers license revocation notice pending in Oklahoma or you have been arrested for drunken driving, contact a Tulsa DUI attorney at Wirth Law Office to find out what the law really says in your case.
To schedule your initial strategy session with a Tulsa attorney, contact Wirth Law Office at (918) 879-1681 or send your question using the form at the top of this page.
