What is Driving under
the Influence?
Driving under the influence
occurs when a person operates a motor vehicle and their abilities
are impaired by the consumption of alcohol or drugs to the
extent they are unable to safely operate the motor vehicle.
The Crime can occur on the highways, streets or turnpikes
of the state of Oklahoma, or in a Public Parking Lot, which
is defined as a parking lot dedicated to the Public.
A person 21 or over can be considered
under the influence at .08 grams of alcohol per 210 liters
of blood. Persons under the age of 21 can be charged with
Under 21 DUI with an Alcohol level of .02. The level of alcohol
is determined through use of the breath test or a blood test.
What is Impaired Driving?
Impaired driving occurs when
a person has an alcohol concentration of .06 or .07. If the
person has committed some type of traffic violation, and their
driving has caused danger to the Public. The punishment ranges
up to $500 fine and up to 6 months in jail, and in Oklahoma
City Municipal Court, $1,200 fine and up to 6 months in jail.
If the charge is filed in the District Court, the maximum
fine is $500 and up to 6 months in the County Jail.
What is APC (Actual Physical
Control)?
APC (Actual Physical Control)
occurs when person is sitting in a vehicle which is not moving,
and has the ability to start and drive the vehicle. Police
officers around the state may even arrest a person for APC
when a person is parked in a private parking lot. When a person
realizes they have had too much to drink, and decide that
it is better to stop the vehicle and not driver any further,
it is important to separate the Keys to the vehicle from the
person. Hide the keys outside of the vehicle, or lock them
in the trunk, so that it is impossible to drive off. The
fact that you don't have the key in your possession inside
of the vehicle, will make it extremely difficult for the Government
to prove that you were in Actual Physical Control of the Motor
vehicle.
What should I do if I
am Stopped and have been Drinking?
If you are stopped for drinking
and driving, chances are you were weaving, had some minor
traffic infraction, or a taillight out. If the officer suspects
you are under the influence, they will begin a standard series
of questions used to find out how much you have had to drink.
You may then be asked to perform a series of physical coordination
tests along the roadside or mental agility tests such as counting
backward, reciting the alphabet or counting your fingers.
We recommend that you politely decline to perform these roadside
coordination tests. You are not required by law to take these
physical tests, and they do nothing but provide the government
with inaccurate evidence of your condition. These tests are
not scientifically reliable, and have but one purpose, and
that is to give the officer additional information with which
to prove your guilt or take your Drivers License. Some Police
agencies in the State of Oklahoma may even attempt to use
unapproved breath devises at the scene of the traffic
stop to test your breath. In Oklahoma, there is not one approved
breath test machine that can be used at a roadside stop.
Again, Politely decline to take the roadside breath test,
and ask the officer for the Breath test at the Station. It
is also beneficial to ask for an additional test in addition
to any given by the Officer. This is your right, and will
be given once you have taken the States test. Your duty when
stopped by the Police is to remain calm and be polite. Cooperate,
but don't answer any questions about where you have been or
what you have had to drink, or anything about an involvement
in an accident.
What are the officers
looking for when they stop someone?
After you are stopped, the officers
have been trained to look for certain symptoms that may indicate
consumption of alcohol.
They are:
1. Odor of alcohol on breath
2. Red, watery, glassy and or bloodshot eyes.
3. Slurred speech
4. Staggering when exiting the vehicle
5. Swaying or unsteady on feet
6. Stumbling while walking
7. Leaning on the vehicle for support
8. Fumbling with a wallet trying to get your license
9. Failure to comprehend the officer's questions
10. Combative, argumentative, jovial or other inappropriate
behavior
11. Soiled, rumpled, disorderly clothing
12. Flushed face
13. Disorientation as to time and place
14. Inability to follow directions.
The officer is trained to look
for these things, however, they may arrest you solely because
you smell like alcohol beverage. An arrest based solely on
the Odor of Alcohol, should be determined to be illegal arrest
by the court.
What is the HGN (pen)
test?
HGN stands for Horizontal Gaze
Nystagmus. Nystagmus is the involuntary jerking of the eyes
when moved in a Horizontal direction. The police Officers,
unfortunately think this eye exercise is conclusive of a persons
level of intoxication. In fact many officers only give this
test, and do not complete the other two of the tests in the
3-test battery. Unfortunately, there is no scientific evidence
that the HGN or any of the other so called Field Sobriety
Tests, are scientifically reliable or accurate to determine
if a person is too impaired to drive. There are approximately
35 other causes of Eye Nystagmus that have nothing to do with
alcohol. Unfortunately the officers are not trained about
these other causes, therefore, they never consider them as
a possible cause and automatically blame the Nystagmus on
Alcohol. In addition, there are many people who suffer from
a Natural Nystagmus. It is impossible to differentiate between
Nystagmus caused by Alcohol and Nystagmus caused by something
else. The Bottom lines is that the HGN test is not scientifically
reliable, and is not an accurate test to determine impairment
by intoxication.
What are the Balance Tests?
Two of the Field tests are aimed
at determining your ability to balance and follow directions
at the same time. One is the One Leg Stand@ test, where you
are asked to stand on one leg for 30 seconds with your hands
to your side. The other is the Walk and Turn where you are
asked to walk heel to toe for 9 steps turn around and walk
back 9 steps, also with your hands to your side. These tests
are difficult for many sober people to perform properly. If
a person has a problem with Balance, Coordination, Physical
infirmity, being Overweight, over 65, they will, in all probability,
not be able to perform satisfactory for the officer. The officer
expects perfection. Of you, not necessarily of him in administering
the tests. These tests that bear do not demonstrate a persons
impairment to operate a motor vehicle. They have not been
determined to be scientifically reliable or valid. Our advise
is to politely refuse the officers request to perform any
balance or eye test, alphabet, finger counting, or counting
test, but politely request the officer to allow you to take
a breath test, and an independent test for your use.
Should I submit to Field
tests?
You may then be asked to perform
a series of physical coordination tests along the roadside.
Standing on one leg, walking a line, and the HGN (pen test).
We recommend that you politely decline to perform these roadside
coordination tests. These tests are not scientifically reliable,
and have but one purpose, and that is to give the officer
additional information with which to prove your guilt. These
coordination tests, sometimes referred to as SFST - Standardized
Field Sobriety Tests, have been created by the National Highway
Traffic Safety Administration (NHTSA). Many Courts have determined
that these tests have no scientific basis, and have not been
determined in Oklahoma to be scientifically reliable. Even
the people who designed these tests have admitted that the
tests cannot determine if a persons ability to operate a motor
vehicle is impaired. Even when administered perfectly, under
perfect conditions, the tests are inaccurate 23% of
the time. Unfortunately, these tests are almost never done
correctly. There are very few officers that are able to perform
the tests correctly, under classroom conditions, let alone
out on the highway at night. When not performed correctly,
the tests are not valid.
Do I have the Right to
an Attorney?
Everyone has the right to an
attorney when facing criminal charges. The question is when
does the person get that right. In Oklahoma, the court has
determined that a person has no right to speak to a lawyer
before deciding whether or not to submit to a chemical test
to determine their level of intoxication. All you have to
say is yes or no in response to their request to submit to
a test. You do not have to answer any questions about where
you have been, what you were doing, or how much, or when you
had something to drink. If the officer starts interrogating
you about these things, simply and politely tell that officer
that you wish to talk to a lawyer before you answer any questions,
and that you will take a test.
What will it cost to hire
a Lawyer?
The cost of a lawyer will vary
depending on the amount of work the lawyer will perform to
adequately represent you in both the Criminal action for the
violation of law, and at the Department of Public Safety hearing
to save your drivers license from revocation. In order for
a lawyer to determine what he will have to do. It is absolutely
necessary that he interview the person charged, and review
all of the paperwork given to you. Our office offers a free,
no obligation, consultation regarding the problems that you
are facing. We will review your case and advise you as to
what to expect, as you are moving through the Criminal Court
System, and the problems you may have with the State's attempt
to revoke your drivers license. The Drivers license revocation
is extremely important, and you only have 15 days to request
a hearing. We feel it is in the persons best interests to
have a hearing, because that hearing gives the person an opportunity
to avoid the revocation, and equally important, an opportunity
to be able to cross-examine the complaining witness under
oath. It provides you, as the client, with an valuable opportunity
to find out what the State's case is all about, before you
attempt to negotiate a settlement in the Criminal Action.
A lawyer's time is his stock and trade, and unfortunately
he must charge for that service. Do not miss the opportunity
to have your case properly evaluated by lawyers who are extremely
knowledgeable and experienced in this area of the law. Their
knowledge is your greatest weapon against the government.
Can I represent Myself?
Under the law of the Land, an
individual has an absolute right to represent themselves.
However, most courts will require a person charged with DUI
or some other alcohol related crime to have a lawyer. If a
person has bonded out, the court automatically, will refuse
to provide a person with a court appointed lawyer. They take
the position, that if the person has been able to pay a bondsman,
then they have sufficient money to hire a lawyer. While this
may not be true, you will, be required to hire a lawyer. In
some small Municipalities, the City will permit a person to
represent themselves, however, you must remember an old saying
that lawyers have. That is a lawyer who represents himself,
has a fool for a client. Seek the counsel of a lawyer knowledgeable
in this area of the law, and they will help you decide if
you need a lawyer.
Should I get a Lawyer?
Lawyers have an old saying.
The saying is a lawyer who represents himself, has a fool
for a client. This area of the law, Drinking and Driving,
has become a target crime.The pressure from groups such as
Mothers Against Drunk Drivers, have filled the public's ears
with misinformation, invalid statistics, and hype regarding
the deaths caused by the Drunk Driver. This area of the law
is extremely complicated, and has Scientific aspects, that
are unknown to most lawyers, let alone non-lawyers. Just as
you would not do brain surgery on your relatives, you should
not rely upon your own knowledge to determine if the State
has done it's job properly. Seek the counsel of a lawyer knowledgeable
in this area of the law, and they will help you decide if
you need a lawyer.
Should I take a Chemical
Test?
The decision as to whether or
not to take a chemical test, is one that has to be made by
you if you are arrested. Our best advise, particularly to
the first time offender, is to take a breath and then request
an additional test for your use. The test can prove your
innocence as well as guilt. It is easier to defeat the drivers
license revocation if you take a test than if you refuse to
take the test. This is the most difficult and burdensome part
of the two pronged attack on you by the government In most
cases, the Criminal action can be negotiated to a successful
conclusion regardless of the test result, however, the Oklahoma
Department of Public Safety does not negotiate. You will either
lose your license or not. There is no in between, so it makes
sense to take the test and put yourself into the position
giving you the greatest chance to retain your drivers license.
Do I get to Choose the
Test?
In Oklahoma, the arresting agency
has chosen which test they will administer. The arrested person
has no choice and must submit to the test of the government's
choice. In most cases, that will be a breath test, unless
the breath test cannot be administered in compliance with
the Rules, then a blood test can be administered. After you
have agreed to the states test, you may ask for an additional
test which will be administered at a local hospital at your
expense. You will not be taken to the Hospital for an additional
test unless and until you have submitted to the States breath
test.
What if I Refuse the Test?
If you refuse to submit to the
State's test, none should be given except in the case of a
serious accident, when the State may decide to force you to
take a test, even if you want to refuse. If you refuse to
submit to a chemical test, then the State will take action
to revoke your drivers license for a period of up to 3 years.
The time of revocation varies. For the first revocation it
is 6 months with the possibility of modification to allow
you to driver with an interlock device on your vehicle. For
the second revocation within 5 years, it is 1-year revocation
which cannot be modified. For the third revocation within
5 years, it is 3-year revocation which cannot be modified
for the first year, and then only if you put an Interlock
device on your vehicle.
What things can effect
the Breath Test?
There are many things that can
effect a test of the breath to determine alcohol concentration.
There are approximately 102 compounds that can exist naturally
in the human body that can look like Ethel Alcohol to a Breath
testing machine. The hard part is for this machine to differentiate
between real Ethel Alcohol and these other compounds. While
the current equipment purportedly has safeguards built into
the equipment to protect against improper analysis, the equipment
is never tested to determine if the safeguards are working.
The Intoxilyzer 5000D, has filters that are supposed to filter
out the non-alcohol compounds. Unfortunately Oklahoma uses
a filter wheel with only three filters for this purpose. Even
though the manufacturer has designed a better filter wheel
containing 5 filters instead of 3. They feel this makes the
machine more dependable to more accurately analyze your breath,
to be sure the result is actually Ethel Alcohol, and not some
other compound.
Is there any Regulation
of the Breath and Blood Testing in Oklahoma?
The programs for testing a person
for alcohol and drugs is administered by the Oklahoma Board
of Tests for Alcohol and Drug Influence. They are responsible
for training and issuing permits to persons to allow them
to take tests on the Intoxilyzer 5000D breath testing machine.
They also license Laboratories and Chemists to test blood
and other substances for Alcohol and drugs or other intoxicating
substances. The attorney's in our office have been Certified
by the Board of Tests for Alcohol and Drug Influence and possess
permits as Operators to take tests on the machine, and also
have been issued permits certifying them as Maintenance Supervisors,
qualified to do the Maintenance on the Intoxilyzer 5000D breath
testing machine.
What are the Implied Consent
Warnings?
In Oklahoma, the officer is
required to read you a document designated as the AImplied
Consent Test Request which has been created by the Oklahoma
Board of Tests for Alcohol and Drug Influence. The request
reads as follows:
- You have been arrested, and the arresting officer has
reasonable grounds to believe that you were driving or in
actual physical control of a motor vehicle while under the
influence of intoxicants.
- You are requested to submit to a test or tests for the
purpose of determining the presence and concentration of
intoxicants in your body.
- The test will be a (Breath) (Blood) test and will be
administered at no cost to you.
- In addition to this test, you may at your own expense
have an additional test of your choice, provided that a
sufficient quantity of any specimen obtained shall be available
to the state for testing.
- You are not entitled to consult with an attorney prior
to making your decision on whether or not to submit to the
state's test.
- You may refuse the state's test, but as a consequence
your driver's license will be revoked or denied by the Department
of Public Safety.
- If you consent to testing, are 21 years of age or older
and the test result is 0.08 or more alcohol concentration,
your driver's license will be revoked or denied by the Department
of Public Safety. If you are under the age of 21 and consent
to testing and the test result is 0.02 or more alcohol concentration,
your driver's license will be revoked or denied by the by
the Department of Public Safety.
- Will you take the state's test?
When and how do I get
my notice of revocation?
The
arresting officer is required by Oklahoma Law to serve the
arrested person, with a Notice of Revocation if the arrested
person refused to submit to a chemical test, or took a chemical
test and tested .08 or more. The Notice is on an 8 1/5 by
14 sheet of Gold paper entitled "OFFICER'S AFFIDAVIT AND NOTICE
OF REVOCATION/DISQUALIFICATION" Upon submitting this notice
of revocation to the Oklahoma Department of Public Safety,
the Department will revoke the Drivers License of the arrested
person for a period of 6 months, up to 3 years. If this notice
is not served on the arrested person on the night of arrest,
it could be fatal to the revocation. You should see the advise
of a lawyer knowledgeable in this area.
How long will the Revocation
last?
If you take a chemical test
and score over .08 (for adults) or .02 (persons under 21),
or if you refuse to submit to a chemical test, then the State
will take action to revoke your drivers license for a period
of up to 3 years. The length of revocation varies. For the
first revocation it is 6 months with the possibility of modification
to allow you to drive with an interlock devise on your vehicle.
For the second revocation within 5 years, it is 1-year revocation
which cannot be modified. For the third revocation within
5 years, it is 3-year revocation which cannot be modified
for the first year. After the first year, the court can modify
the revocation, but only with the installation of an interlock
devise on every vehicle you drive.
Is the Revocation automatic?
The revocation is automatic
if you do not request a hearing at the Department of Public
Safety in writing within 15 days of your arrest. After 15
days you lose the right to challenge the revocation, and the
revocation will commence 30 days after your arrest.
This revocation is a separate
problem from the Criminal Action in the Court, and must be
attacked separately.
Should I Request a hearing?
Having a hearing is the preferred
course of action, as it is the only way to defeat the revocation
and avoid having to have a Breath machine on your vehicle.
We recommend that everyone demand a hearing. In order to have
a hearing, a person or their representative, must request
a hearing in writing to the Department of Public Safety within
15 days of the date of their arrest. Failure to do so, will
result in a revocation, and limit your ability to do anything
about the revocation except the possibility of a Modification
permitting you to drive with an Interlock (breath test) Device
on your vehicle.
Is there an Appeal from
Department of Public Safety hearing?
If a person has a hearing at
the Department of Public Safety, and loses, there is an appeal
from that decision. That appeal, is to the District Court
in the County where the Arrest occurred. When an appeal is
filed, a $250 bond can be posted, and the revocation will
continue to be stayed and you will be permitted to drive until
that appeal is complete. The person will be allowed to drive
at all times and for any reason, 24 hours a day, and 7 days
a week with no restriction. That appeal is heard by a District
Judge in the County of the arrest. The Court can either set
the revocation aside, sustain the revocation, or sustain the
revocation and grant a modification allowing the person to
drive a motor vehicle with an Interlock (Breath tester) device
on their vehicle. The court may also grant the person the
authority to drive a vehicle which is owned or leased by their
employer, without the necessity of an Interlock Devise.
What happens on the First Court Date?
What types of Courts do
we have in Oklahoma?
In Oklahoma we have three types
of Courts. Municipal Courts not of record, which are most
municipal courts. Municipal Courts of Record, which are the
Municipal Courts in Oklahoma City, Tulsa, and Lawton, and
the District Courts, in each of the 77 counties. The difference
in these courts is the amount of fine and imprisonment that
each court can impose.
What is a Plea Bargain?
In most cases, the defendant
will not be assessed the Maximum fine for any given crime.
One can reasonably expect to be offered a plea bargain. A
plea bargain is an agreement between the Prosecutor and the
Defendant which must be approved by the Court. As in any negotiation
or agreement, the parties attempt to work out a resolution
of the charge. Plea bargains are based upon facts. Better
facts for the Defendant, means a better plea bargain. Worse
facts mean tougher a plea bargain.
In each case the plea bargain
is controlled by the facts of the case, which means that each
plea bargain offered can be different from one offered to
someone else. Most often, a person is able to get a Deferred
Judgment and Sentence@ which means, the defendant pleads guilty
or no contest, to the charge, and the Sentencing is put off
for a period of time. During that time the defendant is required
to complete certain tasks, such as AA or counseling, Community
Service, and Alcohol Abuse training. If the defendant successfully
completes the requirements, and has no more violations of
the law, the charge is either Dismissed or reduced to some
non-alcohol related traffic offense. This acts to keep the
DUI charge from appearing on a persons traffic record.
Will I have a plea bargain
or a Trial?
The decision of whether to accept
a plea offer from the prosecution, is a decision that is made
by the Defendant. This decision is made based upon the facts
of the case, and the law that applies to any given prosecution.
The lawyers job is to develop facts and apply the law that
will work to the defendants benefit. Sometimes the plea bargain
offer is so bad, that the only decision is to take the case
to trial and let a jury decide guilt or innocence. There
is no hard and fast rule regarding the acceptance of a plea
bargain offer. The lawyer should give the defendant all of
the options, and his best advise, but the defendant will be
the ultimate decision maker in whether to accept a plea or
go to trial.
Trial - The final Chance
to be heard?
The Trial before a Jury or
Judge is the last chance to determine the guilt or innocence
of the defendant. Most cases that go to trial, are done before
a Jury. The jury will be composed of either 6 or 12 people
chosen by random draw from a pool of jurors selected from
lists of registered voters and licensed drivers. The Defendant's
lawyer and the prosecutor will get to question the potential
jurors to determine if they can be a fair and impartial juror.
A juror can be disqualified for Cause, if they are biased
or prejudiced, and cannot be fair to both parties. The Lawyers
can each get to exclude a certain number of jurors, for any
reason, or for no reason. These are called peremptory challenges.
Once the Jurors are selected,
the Prosecution presents it's evidence, and must prove the
Defendant Guilty beyond a Reasonable Doubt. The proof must
be beyond a reasonable doubt, and the jury must be unanimous
in their verdict. If they are not unanimous, then a mistrial
is declared, and the case is then set to be tried before another
jury.
What is the Punishment
for Drinking and Driving?
The Punishment for DUI can range
from a fine of as little as $200 up to $2500, and imprisonment
up to 10 years in the Penitentiary, depending on the persons
prior record. The punishment varies according to the Court
in which the Defendant in Charged, and the Offense. In a Municipal
Court for all municipalities except for Oklahoma City, Tulsa
and Lawton, the Maximum fine is $500, and a maximum of 30
days in Jail. In a Court of Record, which includes Oklahoma
City, Tulsa, and Lawton, the Maximum fine is currently $1200
and up to 6 months in Jail. In all District Courts in Oklahoma,
the Maximum punishment is a $1000 fine and 10 days to 1 year
in Jail for a Misdemeanor DUI to as much as 10 years in the
Penitentiary and $2500 fine for a felony. There are also other
Crimes, such as Aggravated DUI which can carry an addition
punishment of up to 480 hours of Community Service, and 30
day inpatient treatment. Aggravated DUI occurs when a person
has an alcohol level in their body of .15 or above. There
is also a charge of DUI with Great Bodily Injury, which arises
when a person has caused an accident where life threatening
or disfiguring injury is caused to someone while the person
was under the influence of alcohol or other intoxicants.
What is the Maximum Punishment
for a first time offender?
The Punishment for DUI for the
first time offender varies according to the Court in which
the Defendant in Charged. In a Municipal Court for all municipalities
except for Oklahoma City, Tulsa and Lawton, the Maximum fine
is $500, and a maximum of 30 days in Jail. In a Court of
Record, which includes Oklahoma City, Tulsa, and Lawton, the
Maximum fine is currently $1200 and up to 6 months in Jail.
In all District Courts in Oklahoma,
the Maximum punishment is a $1000 fine and 1 year in Jail.
In most cases, the first time offender will not be assessed
the Maximum fine and in most jurisdictions, no jail time will
be given. One can reasonably expect to be offered a plea bargain.
Most often, a person is able to get a deferred Judgment and
Sentence which means, the defendant pleads guilty, or no contest,
to the charge, and the Sentencing is put off for a period
of time. During this time the defendant is required to complete
certain tasks, such as AA or counseling, Community Service,
and Alcohol Abuse training. If the defendant successfully
completes the requirements, the charge is either Dismissed
or reduced to some non-alcohol related traffic offense. This
acts to keep the DUI charge from appearing on a persons traffic
record.
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