Although the defendant in the lawsuit was the Department of Public Safety, it was the Bureau of Tests for Alcohol and Drug Influence in charge of the testing procedures and equipment approval.
A state bureau overseeing DUI testing doubled-down on faulty procedures despite losing in court, increasing by perhaps thousands the number of drunk driving tests invalidated by a recent decision from The Oklahoma Supreme Court, records show.
Oklahoma’s highest state court issued a ruling Wednesday upholding a lower court ruling that invalidated perhaps as many as 10,000 pending drunk-driving civil cases due to improperly calibrated equipment, according to Bruce Edge, an attorney in the suit.
The Oklahoma State Supreme Court let stand the ruling in a civil case in which a driver’s license was revoked due to a failed breathalyzer test, Edge said.
“This affects possibly every breath test in the state of Oklahoma. And there’s a good possibility it will affect the blood test also,” Edge said. “There is a question still pending whether this will go backwards and affect prior decisions. At this point it’s not determined.”
Further, Edge said, the Bureau of Tests for Alcohol and Drug Influence continued to mandate using the faulty testing procedure up to the day the decision was handed down, despite ample warning the decision was not going their way.
“The Bureau of Tests was made aware of this issue last November when the first ruling came out on this case,” Edge said. “Rather than correcting the rules, which they easily could have done, they’ve created about 15 more months’ worth of invalid licenses.”
The case, Eric Sample vs the State of Oklahoma and the Department of Public Safety, was appealed by DPS after a lower court ruled the department had been using breathalyzer calibrating equipment (canisters and mouthpieces) not directly approved by the state’s Bureau of Tests but rather selected by the bureau’s director.
Edge said without properly validated testing equipment, there is no way to know if the equipment performed properly.
“The statute doesn’t allow for that,” Edge said. “The canister and the mouthpiece were not properly approved and that means the tests are invalid.”
The decision follows a similar ruling in 2014 where years of DUI cases were ruled invalid due to a faulty affidavit used in DUI procedures.
In Wednesday’s decision, the Oklahoma State Supreme Court’s ruling states it upheld the lower court’s decision the DPS could not legally revoke Eric Sample’s license because the Bureau delegated certification of two items used in the test—the plastic mouthpiece and a gas canister containing alcohol vapors used to calibrate the breathalyzer. According to law, the board itself was supposed to certify the items.
“Because DPS did not prove the performance in a valid breath test in accord with duly adopted (Bureau of Testing) rules, the trial court set aside the revocation of plaintiff’s driver’s license. The trial court did not err as a matter of law or fact,” the high court stated.
Department of Public Safety chief counsel Steve Krise said he was unclear how many cases the ruling may affect. Krise said only one case for now is resolved, that of Sample, the plaintiff in the original case. However, he said there are cases on hold at the district court level.
“Those are active cases. This would apply to them,” Krise said. “There are a number of cases in district courts that have been waiting on this ruling. Now the courts have guidance, so those will be brought back before the judge who will most likely set them aside.”
Bureau director Kevin Behrens said the certification issue will require them to implement “emergency rules,” but did not enumerate, saying these would be laid out at a future meeting.
“We are going to evaluate the agency’s options and we look forward to getting back to work. I do want to point out, there has never been an allegation or a finding that the results of the test was invalid,” Behrens said.
Behrens defended the bureau’s decision to continue with the testing procedures despite the Sample case decision at the appellate level. In January, the bureau issued a letter regarding the appellate decision, ultimately upheld by the high court Wednesday.
“Admittedly, if upheld, this decision will have far-reaching consequences,” Behrens wrote. “Bearing that in mind, following is some guidance on how to handle impaired driving cases in the interim. Continue to administer the breath test as normal. If the Sample decision is reversed, you will be in a position to move ahead as usual. But in the interim, make an additional effort to completely and accurately document your observations, including clues on SFST’s. In the event Sample is upheld, or your case proceeds before a decision is handed down, this will provide you with the best evidence of the driver’s condition. In short, you need to prepare your case as if you will not have a breath test result at trial. Therefore, all of the other evidence you collect will be that much more important.”
In wake of the high court decision, Behrens told The Frontier his decision to continue testing was the right one under the circumstances. He said his bureau was not named in the suit, only DPS, and thus, felt the court’s eventual ruling wouldn’t apply to the test equipment decision.
“I met with representatives from the Department of Public Safety and the District Attorneys’ Council about promulgating rules or waiting to see what the result was, and we felt that we had a valid claim that these rules should not be invalidated at the district court without us being a party to the case,” Behrens said. “This is not a crisis. We’re going to get to work and do what we need to do to address the situation.”
In a short statement, Governor Mary Fallin’s spokesman, Michael McNutt, said his office was briefed by the bureau on developing the emergency rules.
“The governor’s office will expedite the review,” McNutt said in an email.
