Fernandez v. State ex rel. Department of Public Safety

HETHERINGTON, J.,

concurring and writing separately:

¶ 1 While I concur, I am required to do so by my understanding of Pierce v. State ex rel. Dept. of Public Safety, 2014 OK 37, 327 P.3d 530.

¶ 2 The Pierce Court citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); State of Oklahoma ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, ¶ 64, 264 P.3d 1197; and Flandermeyer v. Bonner, 2006 OK 87, 152 P.3d 195, once again recognized that a licensed driver cited in a civil proceeding has a right to a “speedy and certain remedy without delay,” and in determining whether or not a licensed driver has suffered a deprivation of that right in a civil proceeding such as this, we consider four factors: 1) the length of the delay; 2) the reason for the delay; 8) the party’s assertion of the right; and 4) the prejudice to the party occasioned by the delay. Pierce 8.

¶ 3 As I wrote in Ryan v. Commissioner of the Dept. of Public Safety, 2016 OK CIV APP -, cert. denied June 28, 2016, “... the Pierce Court focused on the eight month period within which the hearing could have been held and was intentionally delayed. The Court’s dicta discussed motive for delay when it said, ‘[T]he ultimate responsibility for the delay was the Department’s deliberate action in postponing the cause. Such a delay weighs heavily against the governmental entity responsible for the same.’ ” Pierce 15. However, in Ryan, there was no evidence of any reason for the delay, particularly no evidence of deliberate action by DPS which motivated delay. But there was credible “direct” evidence of actual prejudice to Mr. Ryan in the change in and limitations to his employment and the mere fact the arresting officer’s memory at the time of the hearing as to the facts of the case was faulty, all due to the time delay.

¶ 4 Pierce also holds: “d) Undoubtedly, the driver suffered some prejudice simply because the state of his driving privileges, though not revoked, remained in limbo for almost two years.” In the body of the opinion Pierce finds: “Although this may not be the most clear case of delay causing prejudice, under the facts presented, the potential loss of a property interest is sufficient to meet this prong of the four-part test of deprivation of the right to a speedy trial.” Pierce, at 21. So as I read Pierce, the Court seems to say the mere limbo status of the driving privilege “for almost two years” is enough to satisfy the fourth criteria and no “direct” evidence of actual prejudice is required.

¶ 5 So thus my legal limbo, and I suspect that of trial judges having to hear and determine these cases. Pierce clearly ties prejudice to the time of the delay causing prejudice. Yet in the conclusion, the Court states: “Delay without motive may be insufficient to demonstrate a deprivation of due process. However, in and of itself, delay can result in a due process denial.” Pierce, at 23 (emphasis added). Absent motive, how long is too long we do not know.

¶ 6 Thus, in cases where there is delay with no evidence of motive, I feel actual direct evidence of prejudice as in Ryan should be required. Under Pierce, this is not the status of controlling precedent in these DPS appeals.

¶ 71 therefore concur.