Oklahoma passes emergency rules for breathalyzer tests

OKLAHOMA CITY - The state made some emergency rules Friday morning after a court case rendered Oklahoma's breathalyzer tests invalid.

Eric Sample vs. Department of Public Safety went all the way to the Oklahoma Supreme Court.

Last week, the Oklahoma Supreme Court declined to hear the cases, meaning the Court of Civil Appeals decision stands.

An Oklahoma County district judge found that the Board of Tests For Alcohol and Drug Influence did not approve certain parts of the breathalyzer correctly.

Sample, a DUI defendant, won the case, meaning he gets his driver's license back.

The Board of Tests was left scrambling to fix their rules so this won’t happen with thousands of other cases.

“There’s at least the possibility that every breath test would be challenged. So we needed to act quickly to get valid rules in place,” said Board of Tests for Alcohol and Drug Influence Director Kevin Behrens.

At least one board member expressed concern that the process was too hurried.

“I kind of feel that we would be maybe putting ourselves in a similar situation where some of this language could be challenged,” said Dr. Terence Dunn.

Brian Morton, with the Hunsucker Legal Group, is Sample’s attorney.

“I think they left themselves open to attack,” he said after the board meeting.

Morton says the actions taken by the board Friday morning do not fix the problems.

He says there are other things he can use to legally challenge the breathalyzer and blood tests used in our state.

“I’m going to bring that issue up because I would assume under the case, the courts are going to have a problem with what the board of tests has done here today,” said Morton.

But board member, Oklahoma County Sheriff John Whetsel, said they did what they needed to do after the judge invalidated the breathalyzer test on technicalities.

“It was incumbent upon us today to correct those technicalities so that law enforcement officers can continue to save lives by taking drunk drivers off the road,” said Sheriff Whetsel.

The new rules now go to the governor’s office to be approved.

Once that happens, they go into effect immediately.