Foy Anthony Boyd v The State of Oklahoma

M-2004-66

Filed: Apr. 5, 2005

Not for publication

Prevailing Party: Foy Anthony Boyd

Summary

Foy Anthony Boyd appealed his conviction for Driving While Impaired (DWI). His conviction and sentence were reversed, and he was ordered to have a new trial. Judge Lumpkin dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant's Judgment and Sentence in Case No. CM-2002-282 in the District Court of Coal County should be, and is hereby, REVERSED and REMANDED for a new trial. IT IS SO ORDERED.

Issues

• Was there an error in overruling the Defendant's motion to suppress the results of the Intoxilyzer test?
• Did the District Court err in denying the Defendant's demurrer to the plaintiff's evidence?
• Was there sufficient evidence of impaired ability independent of the breathalyzer result to sustain the conviction for DWI?
• Did the State meet its burden of proving compliance with the rules and regulations governing breath tests?
• Was the admission of the breath test results a substantial violation of Appellant's statutory rights?
• Should the matter be remanded for a new trial rather than dismissed?

Findings

• the court erred in overruling the Defendant's motion to suppress
• the State failed to prove compliance with relevant rules and regulations for the Intoxilyzer test
• the admission of the breath test results constituted a substantial violation of Appellant's statutory rights
• the Appellant's conviction is reversed and the case is remanded for a new trial
• the matter should not be dismissed but retried by the State

M-2004-66

Apr. 5, 2005

Foy Anthony Boyd

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

SUMMARY ORDER REVERSING APPELLANT’S JUDGMENT AND SENTENCE AND REMANDING FOR A NEW TRIAL

The Appellant, Foy Anthony Boyd, has appealed to this Court from his misdemeanor Judgment and Sentence in Case No. CM-2002-282 in the District Court of Coal County. In that case, Appellant was convicted in a jury trial, before the Honorable Richard E. Branam, Associate District Judge, of Driving While Impaired, and was sentenced to pay court costs of $573.00 and a fine of $500.00. In this appeal, Appellant asserts one proposition of error contending the District Court erred in overruling the Defendant’s motion to suppress, Defendant’s demurrer to the plaintiff’s evidence and objection to admission of the results of the Intoxilyzer test into evidence.

The State contends the District Court did not err in denying the Defendant’s motion to suppress, or alternatively, there was sufficient evidence of impaired ability independent of the breathalyzer result to sustain the conviction for DWI. Oklahoma statutes require that, in order to be admissible into evidence, breath tests must be administered or performed in accordance with the rules and regulations of the Board of Tests for Alcohol and Drug Influence (hereinafter the Board). 47 O.S.2001, §§ 752(H), 759(B). The State has the burden to prove compliance with the rules and regulations, and to produce the relevant rules at trial if a dispute develops concerning what the rules are. Browning v. State ex rel. Department of Publications, 1991 OK CIV APP 19, 116, 812 P.2d 1372, 1375-76; Westerman v. State, 1974 OK CR 151, 1110-11, 525 P.2d 1359, 1361-62.

Prior to trial in this case, Appellant filed a motion to suppress the results of his breath test claiming the test had not been administered in accordance with rules and regulations of the Board. In support of the motion, Appellant presented as evidence Defendant’s exhibit #1, which was a list of requirements issued by the Board for the Intoxilyzer machine used to test Appellant’s breath. Appellant claimed that requirements on the list had not been complied with during the test of Appellant’s breath. Appellant thereby created a dispute concerning what the rules were, and whether there had been compliance with the relevant rules. The State did not present other rules and regulations for the Intoxilyzer machine, or refute the relevance of the list of requirements submitted by Appellant. The State merely called officers who testified that the Board’s rules and regulations had been complied with, and that the rules Appellant claimed had not been complied with either were only recommendations or had been changed. On the basis on the officers’ testimony alone there is insufficient proof to show what the relevant standards were or whether they had been met. Westerman, 1974 OK CR 151 at 98, 525 P.2d at 1361. Moreover, the State’s brief in this appeal even indicates that the dispute, concerning what the relevant rules and regulations are, was not resolved for Judge Branam or for the jury during the trial proceedings.

Before filing the response brief, appellate counsel for the State contacted the Director of Testing to inquire as to what the relevant requirements are for the Intoxilyzer machine used to test Appellant’s breath. The State’s failure to meet its burden of establishing what the relevant rules and regulations were, and thus its failure to prove compliance with relevant rules and regulations, constitutes error. Westerman, 1974 OK CR 151 at 197-12, 525 P.2d at 1361-62; Browning, 1991 OK CIV APP 19 at 1115-29, 812 P.2d at 1375-78.

One of the State’s alternative arguments is that there was sufficient evidence of Appellant’s impaired ability independent of the Breathalyzer result to sustain the conviction for DWI. While there was fairly strong testimony from two officers that Appellant was intoxicated, we find that the admission into evidence of Appellant’s breath test without proof that it was performed in compliance with rules and regulations of the Board, constitutes a substantial violation of Appellant’s statutory rights under 47 O.S.2001, §§ 752(H) and 759(B). 20 O.S.2001, § 3001.1.

In addition to asking that his conviction be reversed, Appellant asks that this matter be remanded with an order to dismiss. We do not find dismissal to be the proper remedy. This matter should be remanded and the State allowed to retry Appellant. Westerman, 1974 OK CR 151 at q14, 525 P.2d at 1362. Upon retrial, if the State can establish the relevant rules and regulations of the Board and establish that they have been complied with, the results of Appellant’s breath test will be admissible into evidence. Westerman, 1974 OK CR 151 at 913, 525 P.2d at 1362.

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant’s Judgment and Sentence in Case No. CM-2002-282 in the District Court of Coal County should be, and is hereby, REVERSED and REMANDED for a new trial. IT IS SO ORDERED.

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Footnotes:

1. 47 O.S.2001, §§ 752(H), 759(B).
2. Browning v. State ex rel. Department of Publications, 1991 OK CIV APP 19, 116, 812 P.2d 1372, 1375-76.
3. Westerman v. State, 1974 OK CR 151, 1110-11, 525 P.2d 1359, 1361-62.
4. Westerman, 1974 OK CR 151 at 98, 525 P.2d at 1361.
5. Westerman, 1974 OK CR 151 at 197-12, 525 P.2d at 1361-62.
6. Browning, 1991 OK CIV APP 19 at 1115-29, 812 P.2d at 1375-78.
7. 20 O.S.2001, § 3001.1.
8. Berry v. State, 1992 OK CR 41, IT 5, 834 P.2d 1002, 1004.
9. Harris v. State, 1989 OK CR 15, IT 4, 773 P.2d 1273, 1274.
10. Gerrard v. State, 1987 OK CR 5, I 8, 731 P.2d 990, 991.
11. Roberts v. State, 1986 OK CR 33, II 9, 715 P.2d 483, 485.
12. 47 O.S.2001, § 752(7).
13. Browning v. State ex.rel. DPS, 1991 OK CIV APP 19, IT 15, 812 P.2d 1372, 1376.
14. Simpson v. State, 876 P.2d 690, 702 (Okl.Cr. 1994).

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 752(H) (2001) - Compliance with testing standards
• Okla. Stat. tit. 47 § 759(B) (2001) - Testing procedures
• Okla. Stat. tit. 20 § 3001.1 (2001) - Jurisdiction and authority in criminal cases
• Okla. Stat. tit. 47 § 752(7) (2001) - Procedures for breath testing

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Browning v. State ex rel. Department of Publications, 1991 OK CIV APP 19, I 16, 812 P.2d 1372, 1375-76
• Westerman v. State, 1974 OK CR 151, I 10, 525 P.2d 1359, 1361-62
• Berry v. State, 1992 OK CR 41, I T 5, 834 P.2d 1002, 1004
• Harris v. State, 1989 OK CR 15, I T 4, 773 P.2d 1273, 1274
• Gerrard v. State, 1987 OK CR 5, I 8, 731 P.2d 990, 991
• Roberts v. State, 1986 OK CR 33, II 9, 715 P.2d 483, 485
• Browning v. State ex rel. DPS, 1991 OK CIV APP 19, I T 15, 812 P.2d 1372, 1376
• Simpson v. State, 876 P.2d 690, 702 (Okl.Cr. 1994)