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Chandler v. State ex rel. Department of Public Safety

Court of Appeals of Oklahoma, Division III

September 8, 2017

CONNER CHANDLER, Plaintiff/Appellant,

          Mandate Issued: 10/03/2017


          Paul D. Brunton, Tulsa, Oklahoma, and Sabah Khalaf, KHALAF LAW FIRM, P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant,

          Joanne Bryant Horn, Oklahoma City, Oklahoma, for Defendant/Appellee.

          Barbara G. Swinton, Judge

         ¶1 Conner Chandler (Chandler) appeals a district court order sustaining an order of the Department of Public Safety (DPS) revoking his driver's license for refusal to submit to State's tests for alcohol. Based on the appellate record and applicable law, we reverse the order.


         ¶2 On August 7, 2013, a police officer for the City of Glenpool, Oklahoma, stopped Chandler in his truck and arrested him for driving under the influence. According to the "Officer's Affidavit and Notice of Revocation/Disqualification" (hereinafter, Affidavit or Officer's Affidavit) completed by Officer Plane, [1] he observed Chandler's "vehicle swerving between lanes" and "traveling north straddling the center lane" and that he "was unsteady on his feet, red watery eyes, smelled of marijuana." Officer Plane signed the Affidavit, affirming "under penalty of perjury" that he advised Chandler of the "Implied Consent Test Request, " Chandler refused, and Officer Plane "personally hand-delivered a copy" to Chandler on "08-07-13."

         Administrative Proceedings

         ¶3 DPS revoked Chandler's driver's license. Chandler timely requested an administrative hearing which stayed the revocation. [2] For reasons not disclosed by the record, neither Chandler nor his attorney appeared at the hearing held March 3, 2014.

         ¶4 One week later the DPS Hearing Officer entered an order sustaining the revocation, which reads, "after examining the records in this case...[he] finds proper notice of the hearing has been served upon [Chandler]." The order further reads "[b]y reason of the failure to participate in said hearing the affidavit of Officer Plane stating that the licensee refused to submit to chemical testing after being arrested upon reasonable grounds for driving under the influence should be taken as true." (Emphasis added.) The Hearing Officer lifted the prior stay and revoked Chandler's driving privilege for one year "beginning 05/04/2014." The order dated March 10, 2014 indicates it was mailed March 13, 2014 (DPS Order).

         District Court Review Proceedings

         ¶5 On April 7, 2014, Chandler filed a cash bond to stay the DPS Order and a petition to set it aside in the Tulsa County District Court, alleging DPS "failed to comply with the mandate in 47 O.S. § 753 " and "the failure of the affidavit marked as 'exhibit 1' to comply with 47 O.S. § 753." Two exhibits are attached to the petition. Exhibit No. 1 is a copy of the Affidavit dated "08/07/13." [3] Exhibit No. 2 is a copy of the DPS Order.

         ¶6 The parties agreed to delay the district court's review until decision in an unrelated appeal from a implied consent revocation order. [4] Two years later, new co-counsel for Chandler appeared at the review hearing held June 29, 2016. Admitting only the DPS Order into evidence, [5] DPS argued Chandler "did not exhaust his administrative remedies as required by [ 47 O.S. 2011] § 6-211 (F)" because he failed to participate at the administrative hearing and therefore he "is not entitled to a hearing on the merits."

         ¶7 Chandler argued the "officer's affidavit is facially deficient pursuant to the lineage of cases from [ Roulston ] to Tucker to [ Shoptaw ]" [6] and "we don't even get to § 6-211(F)." He also argued Sipes v. State ex rel. Dept. of Public Safety, 1997 OK CIV APP 82, ¶ 20, 950 P.2d 881, supports he exhausted his administrative remedies because the Court held the licensee, who also did not attend the administrative hearing, had nevertheless satisfied § 6-211(F) by requesting that hearing and timely filing an appeal from the revocation order.

         ¶8 DPS pointed out the Legislature had amended § 6-211(F) since Sipes, by adding a requirement for appearance at the administrative hearing, and that "[Chandler's] got two out of the three." DPS then read the Sipes Court's holding into the record.

         ¶9 Chandler argued, regardless of his absence at the administrative hearing, DPS had to admit the Affidavit into evidence, which "unidentified" facial deficiency he contended "is subject to invalidation on timely appeal." [7] DPS distinguished "every one" of Chandler's cases, arguing "each licensee appeared at the administrative hearing" as § 6-211(F) now requires and "[Chandler] does not get the benefit of these cases." DPS also argued when the administrative hearing in Chandler's case was held in March 2014, mandates had not been entered in recent appellate court decisions holding a sworn report missing § 753's reasonable grounds statement is facially deficient and makes a revocation order subject to invalidation on timely appeal.

         ¶10 Interpreting § 6-211(F), the trial court stated "[t]his Court cannot even consider the merits of the revocation because those three requirements are necessary." Chandler acknowledged twenty years had passed since Sipes and § 6-211(F)'s amendment, but contended it was the same issue of "whether the failure of the licensee to appear at the administrative hearing exhausts his remedies?" He then added, "[the Court has] to take into consideration § 754(D)'s" language, "[t]he sworn report of the officer, together with the results of any test or tests, shall be deemed true absent any facial deficiency should the requesting person fail to appear at the scheduled hearing."

         ¶11 The trial court asked DPS to respond since "there was a facial deficiency on that affidavit." DPS replied, "And [Chandler] could have brought that up at the administrative level. It could have been appealed to the District Court and set aside like everyone else's. And he did not do that."

         ¶12 The trial court announced "because § 6-211[F] now requires the licensee to be present at the administrative hearing, Chandler did not exhaust his administrative remedies pursuant to the statute." Chandler conceded § 6-211(F) prohibits consideration of the merits of the revocation when a licensee fails to attend, but asked the court to re-consider its ruling because "[§ 754(D)] specifically addresses when the licensee doesn't appear at the hearing" and:

In this case we're talking about the facial deficiency of the affidavit subject to invalidation. We're not asking the police officer to come in here and testify to the merits of the stop or the merits of the arrest. We're addressing the document produced by [DPS] that is required. You have requisite language on it, which makes it subject to invalidation through the facial deficiency. And so reading that section, that portion of [§]6-211(F). In conjunction with [§]754(D), I think it's obvious that this is exactly the type of situation that those are carved out to address...And at the implied consent hearing, they would have had to introduce the officer's affidavit." (Emphasis added.)

         Chandler re-urged § 6-211(F) and § 754(D) "were crafted for a situation where a licensee does not appear" and "the legislature intended to have a remedy for a situation when a licensee does not appear, but there's a facial defect with the affidavit... the language at § 754 is clear as day." (Emphasis added.)

         ¶13 DPS refuted Chandler in stating "[§ 754(D)] language is appropriate and it applies when DPS has knowledge that there is a facial deficiency, which was not on (sic) the case at the time that we sustained this revocation." (Emphasis added.) DPS then asserted "a facial deficiency would be receiving an affidavit an officer didn't sign or something like that...that is obvious on the four corners on the document. And § 754(D) was not meant to address the supplemental affidavit cases." It lastly contended the Supreme Court's recent denial of certiorari "determined this was not a facial deficiency in two cases, " Gibson and Drake, [8] both of "which went up on a supplemental affidavit" and each court held "the facial deficiency was evidentiary, not jurisdictional."

         ¶14 The District Court opined, "[Chandler] did not exhaust his administrative remedies" and "[§ 754] did not take into consideration the deficiency in [Chandler's] case." The District Court order was filed June 29, 2016. Chandler appeals. [9]


         ¶15 The District Court's Order includes three rulings: 1) "No reason existed at the time of the administrative hearing for DPS to consider the Officer's Affidavit facially invalid"; 2) Chandler "did not exhaust his administrative remedies"; and 3) " 47 O.S. §754 (D) does not refer to the supplemental affidavit issue."

         ¶16 We assume the court's use of the phrase "facially invalid" in its first ruling is synonymous with "facial deficiency, " which latter phrase the parties and judge used to describe the Affidavit during the review hearing without identifying its specific defect. Review of the Affidavit attached to Chandler's petition supports his sole allegation of its failure to comply with 47 O.S. 2011 § 753. [10] This Implied Consent statute requires a "sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving... a motor vehicle... while under the influence of alcohol... and that the person had refused to submit to the test or tests... " The latter requirement is clearly marked on the Affidavit served on Chandler on the date of his arrest, but the same Affidavit is missing § 753's required statement of the officer's reasonable grounds to believe the arrested person had been driving... a motor vehicle... while under the influence of alcohol..." Considering this same statutorily required statement was missing from the sworn reports in Chandler's authorities referenced at the review hearing, this Court's description of the subject Affidavit as "facially deficient" refers to the absence of §753's "reasonable grounds statement."

         ¶17 The Court's second ruling, i.e., Chandler failed to exhaust his administrative remedies, implies the Court determined she lacked authority and/or jurisdiction to consider his petition because a "facially deficient" sworn report is part of the merits of the revocation, review of which § 6-211(F) expressly prohibits unless the licensee has satisfied its three requirements. This same ruling implies rejection of Chandler's argument that no exhaustion of administrative remedies is required for review of whether DPS has failed to comply with § 754 and § 754(D).

         ¶18 Because it is undisputed Chandler failed to attend the administrative hearing, the Court's second ruling would generally be dispositive of his petition. However, the Court was also presented with the parties' arguments about § 754(D)'s interpretation and application to: a) DPS' duty, if any, to facially review the officer's sworn report for compliance with § 753 when the licensee fails to attend the administrative hearing; b) whether a sworn report lacking a officer's reasonable grounds statement is a "facial deficiency" under § 754(D), and c) supplemental sworn reports/affidavits. In light of the court's exhaustion finding, we treat the first and third rulings as resolving these legal and/or procedural arguments.


         ¶19 Exhaustion of statutory remedies is a jurisdictional prerequisite for resort to the courts. Martin v. Harrah Independent School District, 1975 OK 154, ¶ 7, 543 P.2d 1370. A trial court's legal rulings, including jurisdiction and statutory interpretation, are reviewed de novo, meaning " non-deferential, plenary and independent." Jobe v. State ex rel. Dept. of Public Safety, 2010 OK 50, ¶ 13, 243 P.3d 1171, 1175. On appeal from orders of implied consent revocations, an appellate court will not reverse the district court's findings unless they are erroneous as a matter of law or lack sufficient evidentiary foundation. Tucker v. State ex rel. Dept. of Public Safety, 2014 OK CIV APP 45, 326 P.3d 542.

         Issues on Appeal

         ¶20 Argued thoroughly below, Sipes addressed for the first time whether a licensee who failed to appear at the administrative hearing but timely filed for review had by his non-appearance exhausted his administrative remedies under § 6-211(F). Because the 1996 version of § 6-211(F) did not expressly require the licensee's appearance at that hearing, the Sipes Court found Sipes had satisfied the statute's two exhaustion requirements, but reversed the court's vacation of DPS' revocation order because the trial de novo exceeded its appellate jurisdiction under § 6-211(A) and remanded for hearing limited to the evidence presented at the administrative hearing.

         ¶21 In this case, the main focus at the review hearing was the Legislature's post- Sipes amendment to § 6-211(F) that added a requirement for a licensee's appearance at the administrative review. That amendment, and an amendment to § 6-211(A) that returned original jurisdiction to the district court and providing for trial de novo on all fact and legal issues in an appeal from an implied consent revocation order, went into effect November 1, 1999, twenty three months after Sipes. However, only sixteen months after Sipes, the Legislature had amended § 754(D) by adding the language on which Chandler relied below.

         ¶22 The Oklahoma Court of Civil Appeals addressed the post- Sipes amendments to § 6-211 when determining whether the district court had correctly decided the question of exhaustion of administrative remedies in two published opinions, Davis v. State ex rel. Dept. of Public Safety, 2001 OK CIV APP 154, 37 P.3d 974, [11] and Chyzy v. Oklahoma Dept. of Public Safety, 2006 OK CIV APP 105, 143 P.3d 233. [12] The licensee in each case, like Chandler, had failed to attend the scheduled administrative ...

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