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Anatomy of a DUI Case
Driving Under the Influence or "DUI" for short is a criminal case against a driver who allegedly was incapable of safely operating their motor vehicle due to being under the influence of alcohol or other intoxicating substances. Some states call it a DWI but in Oklahoma it is a DUI. A DWI, or Driving While Impaired, is a lesser offense and is charged against people who have a BAC of .06 & .07. An APC is short for Actual Physical Control and and is charged against people who are under the influence of intoxicants but who aren't driving at the time of their arrest. For instance, being parked while under the influence can result in an APC being filed. An APC is treated exactly the same as a DUI, so when I reference a DUI in this article, it applies to APC as well. The DUI statute in Oklahoma is Title 47 Section 11-902.
Part I. The Stop & Arrest.
A DUI case starts right when a driver decides to get behind the wheel. However, for practical purposes, a DUI commences when that person is pulled over by an officer of the law. Most DUI's are triggered by some alleged traffic infraction on that the driver committed. Law enforcement must have reasonable suspicion to pull you over for an alleged crime. Generally, it will be speeding, swerving, defective equipment, inoperable lights, expired tags or some other petty driving behavior. Once approached, the officer will ask you for your driver's license and insurance. This is where the investigation really begins. The officer will attempt to detect an odor of alcohol on your breath or person. They will also watch to see if you fumble trying to get the paperwork they are asking for. They will also listen for slurred speech and look for red, bloodshot, watery eyes.
If the officer believes you have been drinking he will generally ask you to exit the vehicle. He will also ask if you have been drinking. NEVER ADMIT TO DRINKING. Once out of the vehicle, you will probably be asked to perform some Standard Field Sobriety Tests.
The first SFST is the "Horizontal Gaze Nystagmus Test", often called the "eye test" or the "pen test." Essentially what the officer is looking for is whether the eye can smoothly pursue the stimulus or whether the eye begins to "jerk." It is vastly more complex than this but this is the basic scenario.
The second SFST is the "Walk and Turn Test." This test requires the subject to walk a straight line and pivot at a certain point. Stumbling off the line is an "indicator" of intoxication.
The third SFST is the "One Leg Stand." The driver is required to stand on one leg and point the opposite foot outwardly and count to a number indicated by the officer.
Bays Law recommends that you simply refuse to take these SFST's. They are subjective and designed to incriminate you. Politely refuse and SFST's. Normally if an officer is giving you the SFST battery, he has already decided to arrest you. This brings us to the issue of the breath and/or blood test.
Most police departments will offer you the breath test. This test will be performed on the Intoxilyzer 5000. If the results of the breath test indicate a .08 BAC, you will be booked in on suspicion of DUI.
Departments can also use a blood test as their preferred test if they choose beforehand. Similarly, if the result indicates a BAC of .08 or higher, you will be booked on suspicion of DUI. Of Course, there is much more to the stop and aren't than what is written here, but a consultation with an experienced DUI lawyer is the only way to truly evaluate the legality of your stop and arrest. Part II. Retaining a Lawyer Along with fighting the criminal case, I also fight to keep you driving legally. Once arrested on suspicion of DUI, within 15 days, you have to request a formal hearing with The Department of Public Safety. The Officer's Affidavit is your license for the 30 days proceeding your arrest. If a hearing is requested, you will begin to receive temporary licenses from DPS. This keeps you driving while the hearing date is pending. Often it takes DPS up to 60 days to set a hearing date and the date of the hearing gets continued from time-to-time for officer or lawyer conflicts. You do not need to be present at this hearing unless I feel it would be beneficial for your case. This is rare, however. Part IV. Going to Court From your arraignment to a jury trial, I will make sure you understand everything that will happen so you are never caught off guard in court. Most cases end in a plea bargain. By and large this is a good thing. Plea bargains take nearly all the uncertainty out of going to court. Plea bargains can be either a negotiated plea or a blind plea. A negotiated plea means that I have worked out a deal with the prosecutor and you have agreed to it. A blind plea means we can't work out a deal with the prosecutor and we enter a guilty/no contest plea to the judge and he hands out a sentence. A blind plea is a little risky in that the judge can sentence you within the entire range of punishment. A negotiated plea is best because it minimizes risk. If you think you can save money by not hiring a lawyer, you are mistaken. A good DUI lawyer can save you a tremendous amount of money and heartache. Winning a driver's license hearing can save you nearly $1000 and countless hours of trouble. For more information on legal fees, please consult that section of my website.
If you think you don't need a lawyer for your DUI, you are mistaken. You are probably staring at a long white piece of paper called an "Officer's Affidavit and Notice of Revocation/Disqualification." What you may not know is that you only have (15) fifteen days after receiving that piece of paper to save your license. If you do nothing, your license will be suspended. It doesn't matter if you are being charged in city court or you are on your third felony in the state courts, without a lawyer, you are at a distinct disadvantage. You are out on bond and at some point, you will be in court and going to court without a lawyer is like going to war without a gun.
Part III. DUI Representation
Make an appointment as soon as you get out of jail and keep it. The clock is ticking. The initial consultation is free to you. We will discuss strategy, potential defense, the legal process and how we are going to go about saving your driver's license. I will answer any questions you may have.
You can learn more about Legal Fees by clicking on that link above. Once retained, the work starts immediately.
At the hearing we can win or lose based upon the facts. If we win, your license is returned. If we lose, we can appeal to the District Court and ask that the revocation be set aside or we can ask for modified driving privileges.
A Modified Driver's License or MOD is only available to those who have not had a prior license suspension for 10 years. If your revocation is only for (6) months, you can get a modified license from DPS (usually). There are some cases where DPS won't agree to a MOD. One such case I have seen is where the licensee (the driver) resists arrest or assaults the officer. Sometimes DPS will not be agreeable to a MOD in that case.
The term of suspension varies. First offenders are only looking at a (6) month suspension. Second-time offenders are looking at a (1) year long suspension. Next time around is (3) years and after that, the licensee is potentially looking at a lifetime revocation of driving privileges. There is more to this under the, "Can I save My License" section of my website. If your license suspension is longer than 180 days (six months), you are not eligible for a MOD.
Much to the surprise of clients, going to Court tends to be a rather uneventful and often boring ordeal. In fact, most of the important stuff happens outside of Court. However, no matter where you got your DUI, you will be in Court at some point. In some city courts, it is very casual and non-formal. In some state courts, there is a high degree of formality and your manner of dress can become a concern for the judges. The trick is to hire a lawyer who knows the courts and knows the judges so you can be prepared before you ever into a courtroom.
You can also have a bench trial (trial by judge) or a jury trial. DUI cases do not often end in trial. One reason is because most lawyers (in my opinion) don't have a sufficient enough understanding of DUI law and the science behind these prosecutions. Another reason is DUI's are relatively easy to prove and rather difficult to defend. They do happen, however, and there is only one real consideration when deciding to try a case. Can we raise reasonable doubt in the minds of a jury? That is the only legally relevant question. Most of the time, if a case will be easy to win at trial, it will be dismissed at some point, so the really easy one's don't make it to trial often. It is often those cases that are in the gray area that pose the most problems.
Part V. The Money
Here is a list of what you could pay if things go wrong for you. NOTE: This is a worst case scenario and your case will vary based on the facts.
1. Legal Fees--$500-$3500 depending on the case.
2. Bond/Bail--$200-$1000 cash out of pocket
3. Impoundment fees--$250-$350 depending on how long it was in impound.
4. Fines--Up to $1000 for misdemeanor or $5000 for a 3rd felony.
5. Court Costs--Up to $1000 (usually around $700)
6. VCA (Fine)--Usually less than $200 per count. No less than $35
7. Cost Of Incarceration--$49/day (charged in Cleveland County a lot)
8. Victim Impact Panel class--$50
9. DUI School--$150-300
10. Alcohol Assessment--$160
11. DPS Appeal Fee--$374
12. DPS modification Fee--$150
13. Installation Fee for Ignition Interlock Device--Varies
14. Monthly charge for IID--$50
15. Re-Instatement fee from DPS--$300
VI. Future Impact
It is difficult to say what the potential impact of a DUI could be. Clearly, jail, fines, license suspension, being terminated from employment, being sanctioned by the military, being unable to find a job in some sectors (particularly the federal and state government). How much your DUI will impact your life is a variable that has to take into consideration your position in life. If you work in an oil field and don't drive as part of your job, maybe you won't have any employment problems. If you are a nurse, doctor, lawyer, teacher, child-care provider, military person or work for the city, state or federal government, your employment may be in trouble.
Personally, I have represented lawyers, doctors, nurses, servicemen and women, a local pop star, several prominent citizens, college athletes and many others. As part of that representation I will try to prevent as many potentially damaging things from happening as possible. For instance, several times I have represented my clients at nursing boards when they were in danger of losing their license. Take your DUI seriously and hire a good lawyer, you will appreciate the advantage of skilled legal representation in the long run.
VII. Special Cases
Students
Oklahoma DUI Statute With My Commentary in Red
A. It is unlawful and punishable as provided in this section for any person to drive, operate, or be in actual physical control of a motor vehicle within this state, whether upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings, who: 1. Has a blood or breath alcohol concentration, as defined in Section 756 of this title, of eight-hundredths (0.08) or more at the time of a test of such person’s blood or breath administered within two (2) hours after the arrest of such person; A .08 BAC or higher is not necessary for conviction but it is presumed that if you are .08 or higher, you are incapable of safely operating your motor vehicle. 3. Is under the influence of any intoxicating substance other than alcohol which may render such person incapable of safely driving or operating a motor vehicle; or 4. Is under the combined influence of alcohol and any other intoxicating substance which may render such person incapable of safely driving or operating a motor vehicle. B. The fact that any person charged with a violation of this section is or has been lawfully entitled to use alcohol or a controlled dangerous substance or any other intoxicating substance shall not constitute a defense against any charge of violating this section. This means that it doesn't matter if you were drinking, taking drugs, doing both or even on your prescription medication, you can be found guilty of DUI. It is not a defense that your doctor prescribed you the medication. 2. Any person who, within ten (10) years after a previous conviction of a violation of this section or a violation pursuant to the provisions of any law of another state prohibiting the offense provided in subsection A of this section, is convicted of a second offense pursuant to the provisions of this section or has a prior conviction in a municipal criminal court of record for the violation of a municipal ordinance prohibiting the offense provided for in subsection A of this section and within ten (10) years of such municipal conviction is convicted pursuant to the provision of this section shall be deemed guilty of a felony and shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall be sentenced to: a. follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, or b. placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed five (5) years and a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), or c. treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. However, if the treatment in subparagraph a of this paragraph does not include residential or inpatient treatment for a period of not less than five (5) days, the person shall serve a term of imprisonment of at least five (5) days. 3. Any person who is convicted of a second felony offense pursuant to the provisions of this section shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall be sentenced to: a. follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, two hundred forty (240) hours of community service and use of an ignition interlock device, or b. placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed seven (7) years and a fine of not more than Five Thousand Dollars ($5,000.00), or c. treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. Second Felony-1-7 years in the Department of Correction. Up to a $5000 fine and 240 hours of community service. Breathe machine must be installed on your vehicle. However, if the treatment in subparagraph a of this paragraph does not include residential or inpatient treatment for a period of not less than ten (10) days, the person shall serve a term of imprisonment of at least ten (10) days. 4. Any person who is convicted of a third or subsequent felony offense pursuant to the provisions of this section shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall be sentenced to: a. follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, followed by not less than one (1) year of supervision and periodic testing at the defendant’s expense, four hundred eighty (480) hours of community service, and use of an ignition interlock device for a minimum of thirty (30) days, or b. placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed ten (10) years and a fine of not more than Five Thousand Dollars ($5,000.00), or c. treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. Third or Subsequent Felony-1-10 years in the Department of Corrections and up to a $5000 fine. 480 hours of community service and a breathe machine installed in your vehicle for up to 30 days. 5. Any person who, within ten (10) years after a previous conviction of a violation of murder in the second degree or manslaughter in the first degree in which the death was caused as a result of driving under the influence of alcohol or other intoxicating substance, is convicted of a violation of this section shall be deemed guilty of a felony. 6. Provided, however, a conviction from another state shall not be used to enhance punishment pursuant to the provisions of this subsection if that conviction is based on a blood or breath alcohol concentration of less than eight-hundredths (0.08). 7. In any case in which a defendant is charged with a second or subsequent driving under the influence of alcohol or other intoxicating substance offense within any municipality with a municipal court other than a court of record, the charge shall be presented to the county’s district attorney and filed with the district court of the county within which the municipality is located. D. Any person who is convicted of a violation of driving under the influence with a blood or breath alcohol concentration of fifteen-hundredths (0.15) or more pursuant to this section shall be deemed guilty of aggravated driving under the influence. A person convicted of aggravated driving under the influence shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall comply with all recommendations for treatment. Such person shall be sentenced to not less than one (1) year of supervision and periodic testing at the defendant’s expense, four hundred eighty (480) hours of community service, and an ignition interlock device for a minimum of thirty (30) days. Nothing in this subsection shall preclude the defendant from being charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C of this section. This is what is known as an "Aggravated DUI." Although this is filed against a defendant sometimes, a prosecutor will usually dismiss it and just charge you under the regular DUI statute. This section is very punitive and a lot of prosecutors feel like it takes away some of their power to plea bargain cases. 1. The Department of Mental Health and Substance Abuse Services pursuant to paragraph 1 of subsection A of Section 612 of Title 57 of the Oklahoma Statutes; or 2. A correctional facility operated by the Department of Corrections with assignment to substance abuse treatment. F. The Department of Public Safety is hereby authorized to reinstate any suspended or revoked driving privilege when the person meets the statutory requirements which affect the existing driving privilege. G. Any person who is found guilty of a violation of the provisions of this section shall be ordered to participate in, prior to sentencing, an alcohol and drug substance abuse evaluation and assessment program offered by a certified assessment agency or certified assessor for the purpose of evaluating and assessing the receptivity to treatment and prognosis of the person. The court shall order the person to reimburse the agency or assessor for the evaluation and assessment. The fee for an evaluation and assessment shall be the amount provided in subsection C of Section 3-460 of Title 43A of the Oklahoma Statutes. The evaluation and assessment shall be conducted at a certified assessment agency, the office of a certified assessor or at another location as ordered by the court. The agency or assessor shall, within seventy-two (72) hours from the time the person is evaluated and assessed, submit a written report to the court for the purpose of assisting the court in its final sentencing determination. If such report indicates that the evaluation and assessment shows that the defendant would benefit from a ten-hour or twenty-four-hour alcohol and drug substance abuse course or a treatment program or both, the court shall, as a condition of any sentence imposed, including deferred and suspended sentences, require the person to follow all recommendations identified by the evaluation and assessment and ordered by the court. No person, agency or facility operating an evaluation and assessment program certified by the Department of Mental Health and Substance Abuse Services shall solicit or refer any person evaluated and assessed pursuant to this section for any treatment program or substance abuse service in which such person, agency or facility has a vested interest; however, this provision shall not be construed to prohibit the court from ordering participation in or any person from voluntarily utilizing a treatment program or substance abuse service offered by such person, agency or facility. If a person is sentenced to imprisonment in the custody of the Department of Corrections and the court has received a written evaluation report pursuant to the provisions of this subsection, the report shall be furnished to the Department of Corrections with the judgment and sentence. Any evaluation and assessment report submitted to the court pursuant to the provisions of this subsection shall be handled in a manner which will keep such report confidential from the general public’s review. Nothing contained in this subsection shall be construed to prohibit the court from ordering judgment and sentence in the event the defendant fails or refuses to comply with an order of the court to obtain the evaluation and assessment required by this subsection. If the defendant fails or refuses to comply with an order of the court to obtain the evaluation and assessment, the Department of Public Safety shall not reinstate driving privileges until the defendant has complied in full with such order. Nothing contained in this subsection shall be construed to prohibit the court from ordering judgment and sentence and any other sanction authorized by law for failure or refusal to comply with an order of the court. H. Any person who is found guilty of a violation of the provisions of this section may be required by the court to attend a victims impact panel program, if such a program is offered in the county where the judgment is rendered, and to pay a fee, not less than Fifteen Dollars ($15.00) nor more than Twenty-five Dollars ($25.00) as set by the governing authority of the program and approved by the court, to the program to offset the cost of participation by the defendant, if in the opinion of the court the defendant has the ability to pay such fee. I. Any person who is found guilty of a felony violation of the provisions of this section may be required to submit to electronic monitoring as authorized and defined by Section 991a of Title 22 of the Oklahoma Statutes. J. Any person who, within ten (10) years after a previous conviction of a violation of this section or a violation pursuant to the provisions of law of another state prohibiting the offense provided in subsection A of this section or a violation of a municipal ordinance prohibiting the offense provided in subsection A of this section, pleads guilty or nolo contendere or is convicted of a violation of this section shall not be required to undergo the alcohol and drug substance evaluation program required by subsection G of this section. The court shall, as a condition of any sentence imposed, including deferred and suspended sentences, require the person to participate in and successfully complete all recommendations from the evaluation, such as an alcohol and drug substance abuse treatment program pursuant to Section 3-452 of Title 43A of the Oklahoma Statutes. K. Any person who is found guilty of a violation of the provisions of this section who has been sentenced by the court to perform any type of community service shall not be permitted to pay a fine in lieu of performing the community service. L. When a person is found guilty of a violation of the provisions of this section, the court shall order, in addition to any other penalty, the defendant to pay a one-hundred-dollar assessment to be deposited in the Drug Abuse Education and Treatment Revolving Fund created in Section 2-503.2 of Title 63 of the Oklahoma Statutes, upon collection. M. In any case in which a person is convicted of violating the provisions of this section and who was transporting in the motor vehicle a child fifteen (15) years of age or younger, the fine shall be enhanced to double the amount of the whole sum otherwise prescribed.
2. Is under the influence of alcohol;
C. 1. Any person who is convicted of a violation of the provisions of this section shall be deemed guilty of a misdemeanor for the first offense and shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall follow all recommendations made in the assessment and evaluation and be punished by imprisonment in jail for not less than ten (10) days nor more than one (1) year. Any person convicted of a violation for a first offense shall be fined not more than One Thousand Dollars ($1,000.00).
First Offense-10 days to 1 year in jail. Up to a $1000 fine.
A second conviction within (10) years is a Felony.
Firt Felony-1-5 years Prison and up to a $2500 fine.
However, if the person does not undergo residential or inpatient treatment pursuant to subparagraph a of this paragraph the person shall serve a term of imprisonment of at least ten (10) days.
E. When a person is sentenced to imprisonment in the custody of the Department of Corrections, the person shall be processed through the Lexington Assessment and Reception Center or at a place determined by the Director of the Department of Corrections. The Department of Corrections shall classify and assign the person to one or more of the following:
