What is Oklahoma's law on drinking and driving?
Oklahoma's laws against drinking and driving are set
forth in Oklahoma Statutes 47 § 11-902 and 47
§ 761. Basically, these laws make it illegal to
operate a motor vehicle if you are under the influence
of alcohol or any other intoxicating substance to a
degree that renders you incapable of safely driving the
vehicle. The first offense for driving under the
influence is a misdemeanor and punishable by up to a
year in jail and up to a $1,000 fine.
Oklahoma also has an implied consent law. This law makes
consenting to take a test to determine your
blood-alcohol content a condition of driving on Oklahoma
roads. The effect of this law is to force you to either
take a test or face losing your license automatically
for refusing it.
What is the difference between
DUI and DWI?
In Oklahoma, the abbreviation DUI stands for "driving
under the influence," while DWI stands for "driving
while impaired" and is the less severe of the two
offenses. DUI is defined as operating a motor vehicle
with blood-alcohol content (BAC) of eight-hundredths
(0.08) or more determined by the test administered
within two hours of the time of the arrest or driving
under the influence of other intoxicating substances
which may render a person incapable of safely operating
a vehicle. In addition to the suspension of driving
privileges, a first offense DUI carries from 10 days to
one year in jail and a fine of up to $1,000. A BAC result
of fifteen-hundredths (0.15) can be filed as an
Aggravated DUI, which carries enhanced treatment and
probationary requirements. If a driver's BAC is below
0.08, there is still a possibility that they can be
charged with DWI, which is defined as operating a vehicle
while the driver's ability is impaired by the
consumption of alcohol or any other substance that is
capable of adversely affecting the central nervous
system, vision, hearing or other sensory motor
functions. The punishment for a DWI is up to six months
in jail and a fine of $100-$500.
But be careful. The two terms DUI and DWI can be misleading. There
is no uniformity in what various states call "drunk
driving" laws. For example, DWI is a less severe charge
than a DUI. However in another state it may be exactly
the opposite. You should also note that in Oklahoma
there is an actual-physical-control (APC) charge. APC
is, for all practical purposes, a DUI covering those
situations in which an intoxicated person is in control
of a vehicle but is not driving at the time of the
arrest. For example, an intoxicated person parked in a
car with the engine off could be charged with APC.
Although the difference between DUI and DWI can often be
one drink, the differences between these two offenses
legally are very significant. If your test result is
0.08 or over, your license will be suspended for 180
days. Often a first-time suspension can be modifiable,
which allows the driver to operate a vehicle with an
ignition interlock device during the suspension period.
An interlock device requires a driver to blow into a
mouth piece to insure he or she is not driving after
consuming alcohol. Subsequent offenses carry longer
suspension periods that are not modifiable. A DWI
conviction only carries a 30-day license suspension
for a first offense. As with a DUI, subsequent DWI
convictions carry longer suspension terms. Also, a
subsequent DUI after a prior conviction within 10 years
will be filed as a felony. A first felony offense can
carry up to five years in prison and a fine of up to
$2,500. Often a small amount of alcohol can make a
significant difference should you be arrested.
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ALCOHOL CONTENT CHART
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What do you do if you are stopped by a police officer after
drinking alcohol?
The most important thing to remember when you are pulled
over by the police is to be calm, courteous and, most of
all smart. First of all, pull over immediately. A DUI
is a significant charge, but it pales in comparison to
having an accident while trying to elude the police. Do not risk your life and those of others to
avoid the DUI. Simply pull over and deal with the
situation as best you can.
You probably will be asked to step from the vehicle and
perform a series of tests, including the HGN (horizontal-gaze nystagmus test), the walk-and-turn test, and the
one-leg stand. The HGN test allows the officer to
observe for irregular eye movements, which is a
characteristic of intoxication. The other tests are
designed to test for impaired balance and coordination.
If, after these tests, the officer decides that he has
enough evidence to warrant taking you to the police
station, he will inform you that he is placing you under
arrest and handcuff you. Make sure that you keep your
cool during the arrest and do not say something
incriminating.
Anything you say will become part of the police report,
which the district attorney will use in deciding what
type of plea bargain he or she will negotiate with your
attorney. You want that report to read like you were a
perfect lady or gentleman and a pleasure to arrest. The
driver cannot be forced to take these test, but
refusing to do so will most likely result in your
arrest.
Once at the station, you will be asked if you wish to
take a breath test. You have a right to refuse this test
unless it is believed that you may have been involved
with an accident that caused death or serious bodily
injury. But if you do refuse, your license will be
revoked for 180 days for the first BAC test refusal or
failure within 10 years. There is a possibility that the
suspension would be modifiable so that you could drive
with an ignition interlock device during the suspension.
Subsequent failures or refusals carry increased license
suspensions, which are not modifiable.
It is important during your arrest to be as alert to the
situation as possible. Should it be necessary to take
your case to trial, you are going to be your most
important witness, so pay attention to what is
happening. For example, time often plays an important
role in DUI cases. By taking note of the time of your
arrest, you will be able to better estimate about how
long you have been drinking and how much alcohol you
have consumed. Also, the lapse of time between your
arrest and the administration of the breath test can be
important because of the rate the human body
metabolizes alcohol.
If you are arrested for a DUI, it is likely that you
will be detained for a few hours and may be forced to
stay the night in jail. If this happens, request your
phone call and notify someone of your situation. There
typically are only four people you should consider
calling: a family member, a friend, a bail bondsman or
your attorney. However, keep in mind that you may be
allowed only one phone call; so once again, be smart and
call someone who can pay your bail and pick you up.
Frankly, your attorney probably should be the last
person you call since you must pay for his or her
services, and that can be very expensive, especially if
you are arrested in the middle of the night.
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What should you expect after
you are
released from jail?
The first thing you should do is read your copy of the
ticket and officer's affidavit very carefully since they contain some very
important information about your case. The first event
of note will be your arraignment, at which you will be
given a copy of your charges and will be asked to enter
a plea of guilty or not guilty. At this time, no matter
what, plead not guilty. A not-guilty plea will not be
used against you in any way and allows you to maintain
all of the rights to which you are entitled. In most cases,
there is no need to have an attorney present at your
arraignment. As long as you enter a not-guilty plea,
nothing will be done at this time that has any effect on
your case.
The Department of Public Safety (DPS) receives
information on your charge. If the arresting officer's
affidavit indicates you had a BAC of 0.08 or greater or
that you refused the breath test, they will suspend your
license for the required period of time. You can contest
your revocation or ask for a temporary license/work
permit, but to do so, you must send a written request
within 15 days of your arrest.
After your arraignment, should the case be a
misdemeanor, you most likely will be placed on some type
of scheduling or calling docket. At this stage, you once
again will enter a plea (again not guilty) and request a
jury trial, a non-jury trial, or to have your case set
for disposition which, in the case of a DUI charge, you
almost will never want to do at this time. If you
request a jury trial, you will have increased court
cost, but often it is well worth it since the request
preserves your right to a jury trial. It is best to have
already contacted an attorney, who can help you decide
whether or not you will need a jury trial. With felony
cases, the case will most likely be scheduled for a
conference after the arraignment. Unlike misdemeanor
cases, you also have a right to a preliminary hearing in
a felony case. At this hearing the state would have to
put on evidence to show the crime of DUI was committed
and show probable cause you were responsible for the
crime.
Your case then will either be set for a jury trial, a
non-jury trial or a disposition. At a disposition, you
waive all of your rights and enter a guilty plea or nolo
contendere (no contest). Almost always, your attorney
will already have negotiated your sentence with the
district or city attorney's office, and although not
bound by this arrangement, the judge usually follows the
prosecuting attorney's recommendation on your sentence.
Whether at trial, plea or any other court appearance,
remember to show the judge the utmost respect. It is
best to address the judge as "your honor."
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What is probation?
Should you decide to enter a plea of guilty or no contest on a first offense, you will
most likely be placed on probation, typically for one year. Usually, with first-offense DUI
cases, you will not have a probation officer. However,
during the probationary period, you will be required to
have a DUI evaluation, complete a DUI school, attend a
victim-impact panel, and complete community service. You
must avoid violating any city, state or federal laws
while on probation. If you do violate the law or fail to
complete any of your probation requirements, your
probation can be revoked or accelerated (depending upon
the type of sentence), and you may be facing the maximum
penalty on both counts.
As one may expect, the punishment for subsequent DUI
offenses increases dramatically. Not only would a
license suspension be lengthy and non-modifiable, a
subsequent offense after a DUI conviction will be filed
as a felony and you are facing the possibility of being
sentenced to time in prison. A first-time felony DUI in
Oklahoma carries from one-to-five years in prison and a
fine of up to $2,500.
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What will a DUI do to your record
and insurance?
Should your insurance company discover that you have
received a DUI, you can count on them raising your rates
or cancelling your coverage. Should you not contest the
suspension of your driver's license, a failed or refused
blood alcohol content test will go on your driving
record. That record is not expugnable and is accessible
to insurance companies. Should you desire to contest the
suspension of your license and prevent the test
refusal or failure from being reported on your driving
record, you must request an administrative hearing
within 15 day of your arrest.
Two important but often misunderstood terms in criminal
law are "deferred" and "suspended" sentences. The term
deferred means that your sentence is being deferred
until the end of a probationary period. Your case will be
eligible to be dismissed upon successful completion of
that probationary period. A suspended sentence is a
conviction for the crime, but the jail time is being
suspended during the probationary period.
Unlike courts, insurance companies are not bound by the
"beyond a reasonable doubt" standard. They can use the
fact that you failed or refused a breath test even if
your are victorious at trial or your case is dismissed.
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What happens if you are arrested
for more than one DUI?
A subsequent DUI within 10 years after a DUI conviction
will be filed as a felony and is punishable by
one-to-five years in prison and up to a $2,500 fine. Both
the prison time and fines increase for subsequent felony
convictions. Additionally, should you fail or refuse a
breath test twice in a 10-year period, you will loose
your license for one year, and no modification will be
available. A third offense can result in a three-year
suspension that is not modifiable. Subsequent DWI
convictions also carry longer license suspension periods
that are not modifiable.
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What should you do if you are
arrested for a DUI?
DO NOT BLINDLY GIVE UP YOUR RIGHTS! DUI
cases are not simple traffic cases. A proper DUI defense
requires the assistance of an experienced DUI lawyer. Do
yourself a favor.
CALL FOR A FREE INITIAL
CONSULTATION.
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