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Simpson v. Commissioner of Department of Public Safety

Court of Appeals of Oklahoma, Division I

March 16, 2018

NATHAN TYLER SIMPSON, Appellant,
v.
COMMISSIONER OF THE DEPARTMENT of PUBLIC SAFETY, STATE OF OKLAHOMA, Appellee.

          Mandate Issued: 04/11/2018

          APPEAL FROM THE DISTRICT COURT OF TEXAS COUNTY, OKLAHOMA HONORABLE JEFF CLARK, JUDGE.

          Christopher Liebman, Guymon, Oklahoma, for Appellant,

          Heather Poole, Oklahoma City, Oklahoma, for Appellee.

          Larry Joplin, Judge.

         ¶1 Appellant, Nathan Simpson, seeks review of the trial court's January 27, 2017 order sustaining the revocation of his driving privileges, the suspension of which had been requested by the Department of Public Safety, due to Appellant's November 10, 2015 conviction for felony drug possession while using a motor vehicle. After the initial guilty plea, Appellant negotiated a modification of his drug possession charge and by agreement the conviction was modified to "endeavoring to possess a controlled dangerous substance" (CDS), in violation of 63 O.S. Supp.2004 §2-405. In this appeal, Appellant asserts his conviction for "endeavoring to possess a CDS" removes the offense he was convicted of from the mandatory revocation categories created by 47 O.S. Supp.2013 §6-205 (A)(6).

         ¶2 On August 31, 2014, Appellant was stopped while driving in Texas County, Oklahoma, which resulted in his being charged with possession of a controlled dangerous substance, methamphetamine, after former conviction of two or more felonies. On November 10, 2015, Appellant initially entered a plea to the crime of possession of a control dangerous substance. In October 2016, Appellant sought post-conviction relief, requesting the opportunity to vacate his previously entered plea. On November 28, 2016, Appellant and the district attorney's office agreed Appellant's original 2015 plea could be vacated; Appellant was allowed to plea to a modified charge of endeavoring to possess CDS, in violation of 63 O.S. Supp.2004 §2 -405.

         ¶3 After Appellant entered his original plea in November 2015, he sought dismissal of the Department of Public Safety order of revocation, stripping him of his driving privileges. This appeal from the driver's license revocation was premised on Appellant's petition for appeal or modification of his original possession plea, as Appellant argued the modified plea of "endeavoring to possess" no longer required revocation of his license under 47 O.S. Supp.2013 §6-205. The trial court disagreed and entered the appealed from order, sustaining the driver's license revocation, on January 27, 2017.

         ¶4 A judicial determination whether ambiguity in the language of a statute exists is a question of law. "[C]onsistent with a court's construction of alleged ambiguity in a contract, a judicial determination of the presence of more than one reasonable construction of the statutory language, i.e., ambiguity, presents a question of law because the determination that a statutory construction is reasonable is based initially on a plain meaning of the words in the statute where no fact is disputed." In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶9, 326 P.3d 496, 501.

         ¶5 Appellant's first proposition of error asserts his conviction for "endeavoring" to possess a controlled dangerous substance is not an offense contained within the exhaustive list of drug offenses in 47 O.S. Supp.2013 §6-205 (A)(6):

A. The Department of Public Safety shall revoke the driving privilege of any person, whether adult or juvenile, who, in any municipal, state or federal court within the United States, receives a deferred sentence, or a conviction, when such conviction has become final, or a deferred prosecution, for any of the following offenses:
...
6. A misdemeanor or felony conviction for unlawfully possessing, distributing, dispensing, manufacturing, trafficking, cultivating, selling, transferring, attempting or conspiring to possess, distribute, dispense, manufacture, traffic, sell, or transfer of a controlled dangerous substance as defined in the Uniform Controlled Dangerous Substances Act while using a motor vehicle[.]

         Appellant argues that endeavoring to possess CDS is covered under the Uniform Controlled Dangerous Substances Act, 63 O.S. Supp.2004 §2-405, and should be enumerated under subsection six of the revocation statute, 47 O.S. §6-2-5(A)(6) and since it is not specifically listed with ...


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