Morgan v. State ex rel. Department of Public Safety , 65 O.B.A.J. 3364 ( 1993 )

MEMORANDUM OPINION

JONES, Judge:

The Department of Public Safety (DPS) appeals the District Court’s order sustaining the administrative appeal of Appellee, Charles Morgan, and reinstating his driver’s license. The issue is whether a District Court in a trial de novo must take judicial notice of an uncontested rule of an administrative agency which it deems valid, and which has been admitted into evidence. We hold in the affirmative.

On May 23, 1992, Appellee was arrested for driving while under the influence of alcohol. Appellee agreed to the chemical testing of his breath to determine its alcohol content. The result was .10%. As a part of the test, a breath specimen was obtained for independent testing by Appellee. His own test resulted in an alcohol content of .09%. Appel-lee’s driver’s license was revoked, and he filed a request for an administrative hearing. On July 30,1992, the Hearing Officer for the Commissioner of the Department of Public Safety sustained the revocation and suspended Plaintiffs privilege to drive in the State of Oklahoma for a period of ninety days. This suspension was effective, August 21, 1992. Appellee then filed a Petition with the District Court on August 20, 1992. A de novo hearing was held on September 17, 1992.

The only facts before the Court at trial were the two reports and a copy of OAC Rule 40:35-1^4.¹ The parties stipulated to the validity of the tests. Appellee agreed the Board of Chemical Test Rules established a certain scientific tolerance for two different breath tests, but argued that the Rule was not binding on the Court. Appellee denied that a test result of .09% would subject him to a driver’s license revocation. He stated that DPS must show by a preponderance of the evidence that its test was more probably correct or more persuasive than his test. In opposition, DPS argued the Court should take judicial notice of OAC Rule 40:35-1-4 which states that any variation less than .03% in the independent test results is deemed confirmatory of the results of DPS testing. The District Court did not deny the validity of the rule, but nevertheless sustained Appellee’s appeal based on the stipulations of the parties.² The Court found DPS failed to sustain its burden of proof, and issued an order setting aside the revocation and reinstating Appellee’s driving privileges.

DPS appeals from the District Court’s decision, alleging the Court erred in its failure to “judicially notice” Rule 40:30-1-4 of the Oklahoma Administrative Code.

A Court must take judicial notice of rules of administrative agencies which are matters of public record even when they are not incorporated into the record for review. Lone Star Helicopters, Inc. v. State, 800 P.2d 235 (Okl.1990).³ In the instant case, the rule is a part of the record and was in evidence at trial.⁴

The rule has the force and effect of law.⁵ Texas Oklahoma Express v. Sorenson, 652 P.2d 285 (Okl.1982). Courts shall take judicial or official notice of any rule promulgated, pursuant to the provisions of the Administrative Procedures Act, unless a Court of competent jurisdiction finds otherwise. 75 O.S. 1991 § 252. In this case, there was no such finding. The Court committed error by failing to apply the Rule.

Appellee observes that the District Court did not hear evidence and testimony relative to his employment, lack of previous driving record, hardship, and other facts relative to his need to drive. Appellee requests this Court to remand for proceedings consistent with 47 O.S. § 6-211(1), and/or 47 O.S. § 755, which provides for modification of revocation cases of extreme or unusual hardship. On remand, Appellee will have opportunity to present his evidence.

REVERSED AND REMANDED.

ADAMS, P.J., concurs. GARRETT, J., dissents.

1 . Analysis of retained breath-alcohol specimens

(a) Approved methods. Analysis of retained breath-alcohol specimens for alcohol may be carried out by any method or procedure approved by the Board of Tests for Alcohol and Drug Influence to determine the alcohol concentration of specimens of blood, modified as necessary for applicability to retained breath-alcohol specimens. Such analysis may also be carried out by any other appropriate gas chromatographic method of analysis for alcohol which employs flame ionization detector(s), direct injection of a liquid sample or injection of an equilibrated headspace sample, electronic integration of the chromatogram peaks, a suitable internal standard, and simultaneous calibrators or reference standards.

(b) Reporting results. The results of analyses of retained breath-alcohol specimens shall be reported in terms of the concentration of alcohol in the subject’s breath, in grams of alcohol per two hundred ten (210) liters of breath (g/210 L), truncated to two (2) decimal places. Results of analyses of retained breath alcohol specimens which are within three-hundredths (0.03) g/210 L of the results of the corresponding direct breath-alcohol analysis performed on the same subject shall be deemed to be in acceptable agreement with and confirmatory and substantiative of such direct breath-alcohol analysis results, as a scientifically acceptable tolerance.

(c) Other requirements. Analysis of a retained breath-alcohol specimen shall be carried out only and in its entirety in the Forensic Alcohol Laboratory, approved by the Board of Tests for Alcohol and Drug Influence, to which such retained breath-alcohol specimen was originally sent or delivered by the law enforcement agency responsible for its collection and storage. Such'analysis shall be performed by a person holding a currently valid Forensic Alcohol Analysis Permit issued by authority of the Board of Tests for Alcohol and Drug Influence. Board of Tests for Alcohol and Drug Influence, OAC 40:30-1-4.

2 . DPS urged the District Court to apply the Rule to the facts presented in the case. The Court stated, "I don’t see that I need to look to the regulation. He stipulated to your .10 ... And you’ve stipulated to his .09 ... And I see it clearly as a burden of proof question ...” TR. pp. 10, 11.

3 . 75 O.S.1991 § 252(A) states in part: All courts, boards, commissions, agencies, authorities, in-strumentalities, and officers of the State of Oklahoma shall take judicial of official notice of any rule, amendment, revision, or revocation of an existing rule promulgated pursuant to the provisions of the Administrative Procedures Act.

4 . Where the existence of the rule is questioned, the trial court is not required to take judicial of the rule. In Browning v. State ex rel. DPS, 812 P.2d 1372 (Okl.App.1991), the relevant rules and regulations were not produced at trial.

5 . Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer. 75 O.S.1991 § 308.2(C).