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Date: 01-30-2024

Case Style:

STATE OF OKLAHOMA v. JESSEN EVANN HODGES

Case Number: S-2019-269

Judge: Dana Kuehn

Court: IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA (Oklahom County)

Plaintiff's Attorney: Grant County Oklahoma District Attorney's Office

Defendant's Attorney: RICHARD A. JOHNSON

Description:

Medford, Oklahoma criminal defense lawyer RICHARD A. JOHNSON
represented the Defendant charged with manslaughter



Jessen Hodges, Appellee, was charged with Misdemeanor Manslaughter in violation of 21 O.S.2011, § 711, in the District Court of Grant County, Case No. CF-2017-29.1 After a hearing on April 12, 2019, the Honorable Paul K. Woodward granted Appellee's Motion to Suppress. The State timely appealed this decision under 22 O.S.2011, § 1053(5).

¶2 Appellee raises three propositions of error in support of the appeal:

I. Does the Oklahoma Administrative Code 40:20-1-3(C) violate the separation of powers between the executive branch and judicial branch, when the administrative code that was created by the executive branch defines competent evidence in a DUI as being two vials of blood when a core power of the judicial branch is to determine what competent evidence in a DUI proceeding is?
II. Can the Oklahoma Administrative Code 40:20-1-3(C) jump over the Oklahoma state line into Kansas and tell a Kansas Highway Patrol officer to follow Oklahoma law instead of his own jurisdiction's law in how to draw blood in a DUI wreck, when a defendant in a DUI wreck that involves death to another human being in Oklahoma was transported to Kansas for emergency medical care and the blood draw was performed by a Kansas trooper at the request of the Oklahoma Highway Patrol?
III. Does the Oklahoma Administrative Code 40:20-1-3(C) require a Kansas Highway Patrol trooper to ignore Kansas law and follow Oklahoma law in the state of Kansas when a defendant in a DUI wreck that involves death to another being in Oklahoma was transported to Kansas for emergency medical care and the blood draw was performed at the request of the Oklahoma Highway Patrol?
¶3 After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we reverse and remand for further proceedings. We review a trial court's decision to grant or deny a motion to suppress for abuse of discretion; "we accept the district court's factual findings supported by evidence, and review the legal conclusions de novo." State v. Hovet, 2016 OK CR 26, ¶ 4, 387 P.3d 951, 953. "An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts." Id.

¶4 The State's argument on appeal is very similar to those it raised below. Essentially, the State argues that we can't expect Kansans to follow Oklahoma law, and because the Kansas law was followed, the test results should have been admitted. There are two problems with this argument. The first reflects a basic misunderstanding of the law; the second fails on the facts.

¶5 First, the issue here is not, as the State argues, whether Oklahoma can force Kansas employees to follow Oklahoma law, nor is it whether Kansas law is comparable to Oklahoma law in this area. The question is which law governs admissibility of evidence in an Oklahoma prosecution -- Oklahoma's or Kansas's. The answer, of course, is Oklahoma law.

¶6 There is no dispute about the Oklahoma law. The Legislature created the Board of Tests to oversee collection of a person's blood, breath, saliva, or urine to test alcohol content, for use as evidence in Oklahoma courts. The Legislature further required that the Board prescribe uniform standards, conditions, methods, procedures, techniques, devices, equipment and records for such collection and use; and required those uniform standards, etc., to be used by persons collecting or withdrawing blood. 47 O.S.Supp.2015, § 759; 47 O.S.2011, § 752.2 "Before admitting the results of a breath or blood test in a prosecution for driving under the influence, the State must show that the collection and analysis of blood complied with rules adopted by the Board." Hovet, 2016 OK CR 26, ¶ 6, 387 P.3d at 953. Taken together, the statutes, case law, and Board of Tests rules set forth specific requirements and procedures that must be followed before a blood test is admissible in an Oklahoma prosecution. These include but are not limited to specific written notification of consent, certifications for medical personnel, and specific test kit requirements. While there is very little in the record regarding the Kansas law concerning blood draws, evidence showed significant differences in the requirement of written notice of consent and the number of vials to be taken.

¶7 The State admits that Oklahoma law was not followed in the collection of Appellee's blood. In three propositions, the State argues that this omission should not matter. These propositions, which are addressed below, are not persuasive. The statutes and Board of Tests rules, combined, do not permit admission of a blood test where the blood was not taken in accordance with Oklahoma law. Given this, we cannot find the trial court abused its discretion in suppressing the evidence for this reason. Hovet, 2016 OK CR 26, ¶ 4, 387 P.3d at 953.

¶8 However, this does not mean that test results from another jurisdiction may never be admitted in an Oklahoma court on the issue of intoxication. There will be times, as occurred here, where a person arrested in Oklahoma is treated in a different state, and will undergo a blood test for alcohol content in furtherance of the Oklahoma investigation. It is not only likely but probable that out-of-state testing will be conducted according to that state's laws, rather than the laws of Oklahoma. Nothing in the statutory scheme suggests that the Legislature did not intend results from those tests to be admissible in a subsequent Oklahoma court proceeding. As part of the statutes governing admission of chemical tests, the Legislature provided:

The provisions of Sections 751 through 761 of this title do not limit the introduction of any other competent evidence bearing on the question of whether the person was under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance.
47 O.S.2011, § 757 (emphasis added). Clearly, a blood test taken in accordance with another state's laws, and admissible in a comparable court proceeding in that state, would be competent evidence under Section 757. As with tests offered under Oklahoma law, the State has the burden to show that tests from another state comply with that state's laws and would be admissible in that state's courts. See Hovet, 2016 OK CR 26, ¶ 6, 387 P.3d at 953. If that burden is met, the results of a blood test from another state should be admissible as competent evidence under Section 757. In making that determination, the parties and the trial court are not undertaking a comparison between Oklahoma's laws and the laws of another state. The question is not whether the procedures or tests are comparable to and meet the requirements of Oklahoma law. Rather, to admit evidence of an out-of-state test under Section 757, an Oklahoma court may consider evidence that the out-of-state test was conducted according to that state's procedures, and whether it would be admissible under that state's law.

¶9 The record shows that the trial court did not consider whether the evidence below met the threshold for admissibility under Section 757. Although the parties agreed that the Oklahoma Board of Tests standards were not met, the evidence below focused on whether the evidence was comparable to evidence which would be properly admitted under those standards. The trial court's ruling here was limited to that issue. Consequently, the trial court did not determine whether the blood draw was conducted according to Kansas procedures and would have been admissible in Kansas under Kansas law. The trial court thus was unable to use that determination to consider whether this evidence would be admissible as "competent evidence" under Section 757. We remand the case for that determination and consideration.

¶10 We turn briefly to the State's propositions of error. Rather than attempt to work within Oklahoma law, the State argues in Proposition I that the law should be overturned. The State claims that the Legislature's exercise of its authority to direct the Board of Tests to make rules regarding blood alcohol testing violates the separation of powers, because it amounts to the Legislature telling the judiciary what evidence is admissible in DUI proceedings. As a general proposition this makes no sense. The Legislature, after all, enacted the evidence code specifically to govern admissibility of evidence in criminal proceedings; in addition, the Legislature defines elements of each crime through statute, thus restricting what may be used to prove a crime.

¶11 And as Appellee notes, this Court has already decided the State's specific question of the Legislature's ability to delegate authority. Delegation of rules or regulations "governing a matter highly technical and scientific is perhaps the clearest example of what is properly an administrative and delegable function." Synnott v. State, 1973 OK CR 426, ¶ 19, 515 P.2d 1154, 1157-58, overruled on other grounds by Harris v. State, 1989 OK CR 15, 773 P.3d 1273. We held explicitly that delegation of rulemaking authority to the Board of Tests was not unconstitutional. Id. at ¶ 20, 515 P.2d at 1158. The State offers no persuasive argument or authority otherwise. In this proposition, the State also appears to argue that Section 759 and the Board of Test rules conflict with the rules of evidence regarding expert testimony under 12 O.S.2011, § 2702 and Taylor v. State, 1995 OK CR 10, 889 P.2d 319. This argument is not persuasive. Proposition I is denied.

¶12 In Propositions II and III, the State asks this Court to determine whether a Kansas trooper must follow Oklahoma law when conducting an investigation at the request of an Oklahoma law enforcement officer, and whether Section 759 conflicts with other law. As we discuss above, out-of-state test results which are "competent" are admissible under Section 757. Our resolution of this issue renders these propositions moot.

Outcome:

The decision by District Court of Grant County granting the Motion to Suppress is REVERSED. The case is REMANDED for further proceedings

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