164 P.3d 250 2007 OK CIV APP 56

2007 OK CIV APP 56

Wendall Jack DERRICK, Plaintiff/Appellant, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

No. 103,739.

Court of Civil Appeals of Oklahoma, Division No. 8.

Jan. 29, 2007.

Rehearing Denied March 6, 2007.

Certiorari Denied May 21, 2007.

Charles L. Sifers, Oklahoma City, OKkla-homa, for Appellant.

A. DeAnn Taylor, Deputy Chief Legal Counsel, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Appel-lee.

LARRY JOPLIN, Presiding Judge.

T1 Plaintiff/Appellant Wendall Jack Derrick (Derrick) seeks review of the trial court's order granting the motion to vacate/reconsider of Defendant/Appellee State *251of Oklahoma, ex rel. Department of Public Safety (DPS or State), and thereby sustaining the revocation of Derrick's driver's i-cense. In this appeal, Derrick complains the trial court erred in admitting and considering the maintenance log of a breath testing device as proof of the proper maintenance and operation of the device used in the present case. However, we discern no error as alleged. The order of the trial court is affirmed.

12 On or about October 18, 2005, an officer of the Mustang Police Department arrested Derrick for actual physical control of a motor vehicle while under the influence of alcohol, a violation of 47 O.S. 11-902 (A). Derrick submitted to a breath test, conducted on an Intoxilyzer Model 5000-D, revealing a blood-alcohol concentration of 0.16. DPS consequently issued an order revoking Derrick's driver's license.

[3 Derrick sought review of the order of revocation. An administrative hearing officer held the order of revocation should be affirmed.

4 Derrick then filed his Petition for Review in the trial court. At the hearing on the merits, only the arresting officer testified. On direct examination, the arresting officer testified concerning the facts and cireum-stances surrounding Derrick's arrest, and the administration of a breath test to Derrick. On cross-examination, the arresting officer testified that the device used to analyze Derrick's breath sample was an older Intoxilyzer Model 5000-D, not the newer, "enhanced" version, and that he was not trained to administer tests on the "enhanced" model.

15 State offered a certified copy of the maintenance log to demonstrate the administration of a valid breath test to Derrick on a properly maintained Intoxilyzer Model 5000-D according to the procedures mandated by statute and the Board of Tests for Alcohol and Drug Influence. See, 47 O.S. 759 (B); O.A.C. 40:80-1-3.1. Derrick objected to admission of the maintenance log absent the testimony and cross-examination of the maintenance supervisor demonstrating the actual performance of all maintenance by an authorized person as mandated by 40:30-1-3.1(e).1 Westerman v. State, 1974 OK CR 151, ¶ 11, 525 P.2d 1359, 1361. See also, Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (U.S.Wash.2004). State argued the face of the maintenance log demonstrated compliance with O.A.C. 40:80-1-3.1(e), and the maintenance log was admissible under the "public record" exception to the hearsay rule, 12 O.S. 2808 (8).

T6 The trial court admitted the maintenance log "to show that the log was kept; that the subject plaintiff was tested and that record was kept," but not to show the accuracy of simulator control test results on a properly maintained device.2 The trial court consequently held State failed to meet its *252burden of proof, and set aside the order revoking Derrick's driver's license.

T7 State filed a motion to reconsider or vacate, challenging the trial court's decision to admit the maintenance log only for the announced limited purpose. State again argued the maintenance log constituted probative and admissible evidence of the proper maintenance and operation of the breathalyzer under the "public record" exception to the hearsay rule, 12 0.8. 2808 (8), and, when combined with the testimony of the arresting officer, established the proper administration of a valid breath test on a properly maintained breath testing device to Derrick. Derrick responded, arguing the trial court properly excluded consideration of the maintenance log and properly held State failed its burden of proof.

18 On consideration of the briefs and argument, the trial court granted State's motion to reconsider or vacate, and sustained the order of revocation with modification to allow Derrick limited driving privileges. Derrick appeals.

19 In his sole proposition of error,3,4 Derrick complains that, according to Wester-man and its progeny, a maintenance log is admissible to prove the proper maintenance and operation of a breath testing device, even without the testimony of the maintenance supervisor, but only "if it can be shown through other testimony that there was compliance of all regulations" for the proper maintenance and operation of the device, absent in the present case. 1974 OK CR 151, 11, 525 P.2d at 1861. Further, says Derrick, and even assuming admissibility of the maintenance log under § 2808(8), the maintenance log does not demonstrate full compliance with all the maintenance procedures of O.A.C. 40:830-1-3.1(e)5

{10 State responds, arguing that the maintenance log constitutes a self-authenticating document under 12 O.S. 2902 (1), and within the "public record" exception to the hearsay rule of § 2803(8). See also, U.S. v. Wilmer, 799 F.2d 495, 501 (9th Cir.(Wash.) 1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987);6 U.S. v. DeWater, 846 F.2d 528, 529 (9th Cir.(Haw.) 1988);7 *253U.S. v. Wilkinson, 804 F.Supp. 263, 266-267 (D.C.Utah 1992);8 Frost v. North Dakota Department of Transportation, 487 N.W.2d 6, 11 (N.D.1992).9 State here asserts the law presumes that the persons in charge of maintaining public records perform their required duties without motivation to misrepresent the facts, and that public records consequently enjoy a presumption of trustworthiness. Wilmer, 799 F.2d at 501; DeWater, 846 F.2d at 529; Wilkinson, 804 F.Supp. at 267; Frost, 487 N.W.2d at 11. And, says State, the testimony of the arresting officer, together with the maintenance log, reflect full compliance with the maintenance requirements of 0.A.C. 40:30-1-3.1(e).

T11 District Court review of a driver's license revocation is conducted de novo, "with the 'trial de novo' being a trial of the entire case anew, both on the law and on the facts." Appeal of Dungan, 1984 OK 21, ¶ 7, 681 P.2d 750, 752; Matter of Braddy, 1980 OK 44, ¶ 12, 611 P.2d 235, 237-238. The State bears the burden of proof, by a preponderance of the evidence, to demonstrate all facts necessary to sustain the revocation, including the operation/actual physical control of a motor vehicle while intoxicated, a valid arrest, proper advice of rights and consequences, as well as consent to and performance of a valid test on a properly maintained testing device. 47 O.S. 754 (F)(1); 47 O.S. 6-211; Smith v. State, ex rel. Dept. of Public Safety, 1984 OK 16, ¶¶ 6-8, 680 P.2d 365, 368; Westerman, 1974 OK CR 151, ¶ 11, 525 P.2d at 1361.

112 The trial court's judgment to admit evidence under one of the hearsay exceptions of § 2808 will not be disturbed absent an abuse of discretion. Seq, eg., Kerr v. Clary, 2001 OK 90, ¶ 15, 37 P.3d 841, 844.10 *254On appeal in driver's license cases, we will not reverse the trial court's judgment "if there is any evidence, or any reasonable inference to be drawn therefrom, which tends to support [the lower court's] findings." Smith, 1984 OK 16, ¶ 7, 680 P.2d at 368. On review of the trial court's order granting a motion to vacate, and given the trial court's "virtually unlimited" discretion in such matters, we will not disturb the trial court's judgment unless affected by an abuse of discretion. See, eg., Schepp v. Hess, 1989 OK. 28, ¶¶ 8, 9, 770 P.2d 34, 38.

113 Both federal and state courts recognize that a breathalyzer maintenance record, when kept as required by law, constitutes admissible evidence of a properly maintained device within the "public records" exception to the hearsay rule of F.R.E. 803(8), and adopted in the various states. Wilmer, 799 F.2d at 501; DeWater, 846 F.2d at 529; Wilkinson, 804 F.Supp. at 267; Frost, 487 N.W.2d at 11. And, Derrick concedes that compliance with the rules and regulations for the maintenance and operation of breathalyzers may be shown otherwise than by the direct testimony of the maintenance supervisor. - Westerman, 1974 OK CR 151, ¶ 11, 525 P.2d at 1362.

[14 Under these cireumstances, we hold a breathalyzer maintenance log is admissible under the § 2808(8) public records exception to the hearsay rule. Further, because a public record carries with it the imprimatur of compliance with the requirements for its keeping, we hold that a breathalyzer maintenance log is admissible as prima facie evidence of compliance with the rules and regulations for the proper operation and maintenance of breathalyzers, even absent the testimony of the maintenance supervisor, particularly where, as here, there is absolutely no evidence of any kind suggesting otherwise than a properly administered breath test on a properly maintained and operating breath testing device.

' 15 We therefore conclude the trial court did not abuse its discretion in admitting the breathalyzer maintenance log or in granting State's motion to vacate or reconsider as to affirm the revocation of Derrick's driver's license. The order of the trial court is AFFIRMED.

ADAMS, J., and MITCHELL, V.C.J., coneur.

Derrick v. State ex rel. Department of Public Safety
164 P.3d 250 2007 OK CIV APP 56

Case Details

Name
Derrick v. State ex rel. Department of Public Safety
Decision Date
Jan 29, 2007
Citations

164 P.3d 250

2007 OK CIV APP 56

Jurisdiction
Oklahoma

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