Oklahoma driver's license revocations based on failed breath tests that determine blood-alcohol level are once again being called into question under a state Supreme Court ruling issued Tuesday.
Citing a lack of prescribed maintenance procedures for the Intoxilyzer 8000 breath-alcohol testing instrument, the court found that the driver's license of Mark Muratore should not have been revoked following his April 2012 arrest by an Edmond police officer.
The Supreme Court also found that Oklahoma County Special Judge James Croy acted properly in refusing to accept into evidence the manufacturer's certificate of calibration and supplier's certificate of analysis for the gas canister.
The Supreme Court overturned a decision by the Oklahoma Court of Civil Appeals, which had overturned Croy's decision that found the revocation improper.
The Supreme Court said its decision would only apply to cases currently pending before the Department of Public Safety and administrative appeals pending in district courts. The decision does not apply to revocation cases where final judgments have already been entered.
Attorney Stephen G. Fabian Jr., who represented Muratore in the case, and attorney Stephen Krise, general counsel for the Oklahoma Department of Public Safety, both said the decision could result in some other pending revocation cases being thrown out, but said it was unclear how many cases might be impacted.
“Obviously it's going to have an impact,” said Fabian who used to serve as the Department of Public Safety's general counsel before he became a private attorney. “There will be a series of cases that it will impact.”
However, he said a previous ruling found errors in the affidavits produced by the testing machines and caused hundreds of cases to be dismissed.
Because those cases are already being thrown out, the new ruling might not have as great an impact as a person might expect, Fabian said.
Responsibility for the lack of prescribed maintenance procedures for the Intoxilyzer 8000 machines falls upon the state Board of Tests for Alcohol and Drug Influence.
Kevin Behrens, who became agency director after his predecessor was fired in October 2012, said his agency fixed that problem last May and believes all of the issues raised by the Supreme Court opinion have been addressed.
“I have a high confidence in the instruments and the breath tests that are being administered in the field,” Behrens said.
I have a high confidence in the instruments and the breath tests that are being administered in the field.”
state Board of Tests for Alcohol and Drug Influence agency director