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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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:

  1. 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.
  2. You are requested to submit to a test or tests for the purpose of determining the presence and concentration of intoxicants in your body.
  3. The test will be a (Breath) (Blood) test and will be administered at no cost to you.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. Will you take the state's test?

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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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Date of Arrest?

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Who was the Arresting Agency?

Did you take a Breath or Blood Test?

If you took a Breath test, what were the Test results?

Did you request an additional test?

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Fabian & Associates Inc, P.C.
228 Robert S. Kerr, Suite 700
Oklahoma City, Oklahoma 73102

CALL 1-866-626-3186