OKLAHOMA CITY - An Oklahoma attorney said a recent decision regarding DUIs could have lasting effects on thousands of offenders.
On Monday, the Oklahoma Supreme Court refused to hear Eric Sample vs. State of Oklahoma and Department of Public Safety.
This means the Court of Civil Appeals' decision in the case is upheld and Sample will get his driver’s license back.
The Hunsucker Legal Group prosecuted the case and DUI attorney, John Hunsucker, said he will now seek to get licenses back in the 300 to 400 DUI cases he’s had on hold, waiting for the Supreme Court’s decision.
“It’s not all these people are getting off. It’s the government didn’t do what they’re supposed to do to make sure that we have devices that have been approved and have been researched and have the opportunity for the public to weigh in and say 'Is this a good device?'” Hunsucker said.
At the heart of the case is the breathalyzer machine used in our state, the Intoxilyzer 8000.
Someone arrested for a DUI would blow into the machine to determine their blood alcohol level.
The Court of Civil Appeals found there were problems with the way the State Board of Tests for Alcohol and Drug Influence approved certain parts of the breathalyzer, like the gas canister and the mouthpiece.
“In order for them to revoke the license, they must show that they followed the rules and procedures. And, they didn’t do that,” Hunsucker said.
The director of the Board of Tests for Alcohol and Drug Influence said they felt like they were doing everything correctly.
“There is a rule, and we followed the rule and it still came out against the state,” said Kevin Behrens.
Behrens said they will now come up with some emergency rules in the next few days, so law enforcement agencies are covered.
He points out the case did not challenge the validity of the test.
“The result is reliable today, yesterday, three years ago. The result is reliable,” Behrens said.
Hunsucker said they’ll be looking at whether this case could overturn DUI convictions and what it means for our state’s blood test.
“Because they approved some of the same things in blood testing by resolution versus rule,” Hunsucker said.
The Department of Public Safety sent us this response in reaction to the Supreme Court ruling:
“The Department of Public Safety appealed that ruling to the Oklahoma Supreme Court, which denied to hear the appeal. So, the Court of Civil Appeals opinion is now the final opinion in that case.
The only thing the Department of Public Safety does is revoke driving privileges when a driver operates a vehicle under the influence of drugs or alcohol. The revocation is based on evidence of intoxication, such as a test result from a breath testing instrument. All breath testing instruments in the state are chosen and approved by a separate state agency known as the Board of Tests for Alcohol and Drug Influence (BoT) – not the Department of Public Safety. The instruments were approved by resolution many years ago. The Court of Civil Appeals ruled that the adoption of the breath testing instruments by resolution was not in accordance with the Oklahoma Administrative Procedures Act. So, the results of a breath test performed by one of these instruments would not be admissible.
So far, this only affects Eric Sample, the person who appealed. We are evaluating what effect the opinion may have on other cases.”