Oklahoma Appeals Court Reiterates Due Process Violation in Driver’s License Appeal

A division of the Oklahoma Court of Civil Appeals has ruled that an unexplained and lengthy delay in providing an administrative hearing by the Department of Public Safety can amount to a deprivation of due process.

In Ryan v. Commissioner of the Department of Public Safety, a driver was stopped and refused the officer’s request to submit to a breath test. Under the State’s Implied Consent Law, the driver was given notice that his License would be suspended. Before the expiration of the 15-day appeal period, the driver requested an Administrative Hearing on the suspension.

After the hearing was set, the Department caused the Hearing to be postponed. After another postponement, the hearing was finally held 13 1/2 months after the Driver’s arrest. After the hearing, the State Hearing Officer affirmed the suspension, and the driver appealed to the District Court. Finding that there was no Constitutional violation, the District Court affirmed the suspension.

The State Court of Civil Appeals reversed. In it’s opinion, the Court said that the Department had not produced any evidence that there was a compelling reason for the delay and that the delay was not of the driver’s doing. Further, the delay did work to the driver’s detriment, in that he was no longer employable at his current position, and had to take a lower paying job pending the outcome of his Administrative Hearing.

Read the Decision here.

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The Oklahoma Court of Criminal Appeals has decided a case that clarifies when a law enforcement officer can conduct a search without consent, where the initial contact did not involve suspicion of illegal activity.

Te Defendant was standing beside his motorcycle in the parking lot of an establishment that was closed. A Deputy Sheriff approached the Defendant, and asked him what he was doing. The Defendant replied he was “taking a break”. At that point, the Deputy asked to see the Defendant’s driver’s license and proof of insurance. The Defendant told the officer that he did not have insurance for the motorcycle.  The Deputy then impounded the motorcycle, as the compulsory insurance law allows.

When the Deputy asked the Defendant for consent to search the motorcycle saddlebags, the Defendant refused. The Deputy called for the assistance of the local police department. An officer with a drug sniffing dog was in the parking lot of the casino across the street, and responded within a couple of minutes. The dog “alerted” on the motorcycle bag. A search revealed a bag containing methamphetamine.

Initially, the District Court granted the Defendant’s Motion to Suppress the evidence, because the officer was without suspicion of illegal activity when he first approached the Defendant. The Court of Criminal Appeals reversed, saying that the role of law enforcement officers is not only to detect and prevent criminal activity, but also to assist people who may be in distress.

At the time the Deputy approached the Defendant, there were indications that the Defendant may be a motorist in need of assistance. Once contact was made, the Deputy was within his authority to ask for the Driver’s License and proof of insurance, as the motorcycle obviously was being operated on the public streets. Discovering that the motorcycle was not legal for public streets, due to lack of insurance, authorized the Deputy to arrest the Defendant, impound the motorcycle, or both. Officers are allowed to inventory impounded vehicles for the protection of the police, the public and the person arrested.

In this case, the “detention” was not lengthened beyond what was necessary to further the legitimate interests that led to the contact. The time from initial contact until the arrival of the drug dog was less than six minutes. As each of the officer’s actions was reasonable given the situation as it unfolded, the Court of Criminal Appeals ruled that the search was proper, and the evidence should be allowed.

Read the Decision here.

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OK Supremes Allow Public Vouchers for Sectarian Schools

The Oklahoma Supreme Court has ruled that parents can take advantage of a program offering tuition assistance for children with disabilities, even if the parent puts the child in a private religious school.

At issue is the “Lindsey Nicole Henry Scholarships for Students with Disabilities Act”. Under the Act, parents could take a child that is “disabled” as defined by the statute, and put the child in any private school, religious or non-religious. Several educators and former educators sought a ruling that allowing the vouchers to be used at a religious school violates the “no aid” provision of the Oklahoma Constitution (which says no public money may be used to support a religion or religious ideal). The trial Court ruled that the Act is constitutional, except where the voucher money is used for a religious school.

The Oklahoma Supreme Court reversed, holding that schools have had the ability to contract out education for disabled students for over 20 years. The Act simply allows the parents to do the same. Because the parents have the choice, without influence or coercion from the School District, the Act has no bearing on State control of churches. Parents are free to choose a religious or non-religious school.

Read the Opinion Here.

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Avoiding “Mass” Panic

Thirty years ago, I was sitting an a classroom at Tulsa Junior College, (now TCC), taking an “Intro to Psychology” course. During the semester, we looked at the emotions that businesses try to tap in their advertising.  Among the top emotions was fear. Often that fear is simply a product of ignorance.

Now fast forward to last night. I watched a commercial for Mass Mutual Insurance Company, where a man and woman (presumably brother and sister) are talking about their recently departed mother. Their mom had no insurance, and the couple were worriedly wondering how they would pay for the costs of the funeral and other expenses like her medical bills.  Oh, if mom had only had the foresight to purchase life insurance.

Certainly, I deal with many people every year with the same concerns. The problem is that the commercial deals in half-truths. While it is certainly true that those left behind will be responsible for any funeral, burial or other post-mortem costs that they choose, there is no legal obligation to do anything. As hard-hearted as it sounds, the kids can simply refuse to do anything, and it becomes an issue for the local authorities. Even then, a small funeral and burial policy is fairly inexpensive, and can cover these expenses.

But what about the other bills? Medical, credit card and other debt is never the responsibility of the next generation. The only way that a person can be held liable for the expenses of another (even a parent or child) is when that person signs an agreement to be liable for that debt. The only relief that a creditor has for the debts of the deceased is the property owned by the deceased at the time of death.

Two comments are appropriate here. First, a different set of rules apply to the spouse of the deceased, but here other protections are in place for the surviving spouse. Secondly, I am not advocating that you do without life insurance. It is a powerful tool in estate planning, but the cost must be considered when considering the benefit.

It costs nothing to consult with a competent Estate Planning Attorney to get answers to these and other questions. For Oklahoma Estate Planning questions, call me at (918) 258-2711.

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“Pocket Dials” – Senders and Receivers Beware

By now, we all know the phenomenon of the “pocket dial” (also referred to as the “butt dial”). But (no pun intended) we are now more aware of the potential ramifications to both the sender and receiver.

James Huff was on a business trip in Italy. He phoned a subordinate (Carol Spaw) to have her make certain reservations for Huff. After terminating the call, Huff placed the phone in his pocket, unaware that the phone had re-dialed Spaw. Spaw said “Hello” several times into the phone, but got no response. Soon, Spaw realized that Huff and a colleague were discussing business, part of which was the possible replacement of Spaw’s superior. Later, Spaw and a co-worker listened to a conversation between Huff and his wife, part of which involved Huff relating to his wife parts of his conversation with his colleague. Spaw took handwritten notes and recorded pat of the phone call.

Huff and his wife later learned of the open phone call, which lasted approximately 80 minutes. Huff and his wife sued Spaw for violation of the Federal law that prohibits intercepting and disseminating electronic communications. On appeal, the Circuit Court held that Huff had no claim, since he did not avail himself of the easiest and most effective prevention (turning off the phone). By failing to take that simple measure, Huff had no “reasonable expectation of privacy”, something the Federal law requires as a prerequisite to relief. Huff’s wife, however, did have a reasonable expectation of privacy, that was not affected by her husband’s lapse in judgment. Therefore she is permitted to proceed against Spaw.

The lesson here is “beware the butt dial”, and it applies to both the sender and receiver.

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The U.S. Supreme Court has ruled that the Takings Clause applies to personal property as well as real property. In the words of Chief Justice Roberts, “The Fifth Amendment applies to personal property as well as real property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”

Read the Opinion here.

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A division of the Oklahoma Court of Civil Appeals has ruled that a Trial Judge can award Joint Custody of minor children over the objection of one of the parents.

There have been a wealth of decisions by the Oklahoma Supreme Court that allowed the termination of Joint Custody because of continuous acrimony between the parties. This has led some to believe that Joint Custody should not, or cannot, be ordered if it appeared that the parties could not operate with a high degree of cooperation.

In Bilyeu v. Bilyeu, the Court noted that the parties were quite hostile to one another during the Divorce proceedings, but also noted that both were totally devoted parents, capable of cooperation in the best interests of the children after the stresses of the proceedings were gone. Believing that Joint Custody was in the best interest of the children, the Court ordered Joint Custody over the objection of the mother. On Appeal, the Appeals Court determined that the vast majority of the past cases were not initial custody determinations, but were requests to modify a Decree after there was a demonstrated pattern of hostility not related to Court proceedings.

You can read the opinion here.

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