Oklahoma DPS Supsensions; Defects in the Officer’s Affidavit

Oklahoma DPS Suspensions: Defects in the Officer’s Affidavit

Oklahoma DPS SuspensionsLast week we discussed the requirement of a statement of an officer contained in the Officer’s Affidavit that he/she had reasonable grounds to believe the person arrested for DUI had been operating (or was in actual physical control) of the motor vehicle. This week, we will discuss another issue related to the Officer’s Affidavit; whether the Officer’s Statement must be signed by the officer with personal knowledge of the facts contained therein, or if a signature by an officer with personal knowledge of the facts contained therein is sufficient basis for DPS to rely on in suspending an individual’s driving privileges.  This distinction may not seem clear, but is demonstrated by the facts of the Martinez case below.[1]

Mr. Martinez was observed being in actual physical control of a vehicle while intoxicated by Officer A, who administered a field sobriety test. Because Officer A had been on a 10-hour shift, Officer B told Mr. Martinez he was under arrest and placed him in the back of his patrol car. Officer B transported Mr. Martinez to the jail and administered a BAC test. Officer B then made out the sworn report required by 47 O.S. 754(c) stating he had reasonable grounds to believe the arrested person had been operating (or was in actual physical control) of the motor vehicle. The dispute in this case arises here; Does 47 O.S. 754(c) require the same officer(Officer A) who observed the conduct in the statement sign the form or is it allowable to for an officer who has personal knowledge of the conduct(Officer B) to sign the Officer’s Affidavit?

Mr. Martinez challenged the suspension contending the Oklahoma statutes require Officer A to sign the Officer’s Affidavit. In deciding that case of first impression, the Court of Civil Appeals of Oklahoma rejected Mr. Martinez’ contention and held that the form can be signed by any law enforcement officer with personal knowledge of the facts contained therein. In making the ruling, the Court noted that the form is one not used in making determinations of justification—the form merely establishes prima facie evidence for revocation which can be rebutted later—it therefore does not need to be made by the “arresting officer”.

If you have questions regarding a Tulsa DUI arrest or Oklahoma DPS Suspensions, contact one of our Tulsa DUI Attorneys at (918)592-1144 or online here for a consultation.

[1] Martinez v. State ex rel. Dept. of Public Safety, 2014 OK CIV APP 17.

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