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Summary of Oklahoma Impaired Driving Statutes & Laws.

COMMON ACRONYM(S) USED TO DESCRIBE “DRUNK DRIVING”: DUI, APC, U21-DUI, Agg. DUI, DWI, DUI-D

PROHIBITED VEHICULAR ACTIVITY:  “drive” 47 O.S. Section 11-902(A)
“operate or…be in actual physical control” 47 O.S. Section 11-902(A)
Oklahoma Uniform Jury Instruction (“OUJI”) -CR 6-17)

COVERED VEHICLES OR DEVICES:  “a motor vehicle” 47 O.S. Supp.2001,
Section 11-902 (A)

COVERED LOCATIONS:  “…upon public roads, highways, streets, turnpikes, or other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings…”  47 O.S. Section 11-902

IMPAIRED DRIVING OFFENSES:
Driving Under the Influence (alcohol or drugs or intoxicating substance or combination in excess of .08 alcohol or blood concentration) 47 O.S. Section 902-1

Actual Physical Control (in excess .08 alcohol or blood) 47 O.S. Section 901-1

Under 21 years old with a DUI (.02 or higher for person under 21 or any measurable amount of acts or exhibits of under the influence)  47 11-906.4

Aggravated DUI (.15 alcohol or breath result) 47 O.S. Section 11-902 (D)

Driving While Impaired (.05 to .07)  47 O.S. Supp. 1995 Section 761.  This is the lesser included offense in Oklahoma.  Bernhardt v. State, 719 P.2d 832, 833 (Okl.Cr.1986)

Driving While Under the Influence of Drugs/intoxicating substance 47 O.S. 11-902

DUI with personal injury 47 O.S. Section 11-904(A) (1)
DUI with great bodily harm 47 O.S. Section 11-904(B) (1)

DUI with child 15 years or younger in vehicle 47 O.S. Section 11-902(M)

DUI/Guardian Interlock—allowing a person to operate your vehicle with one installed
47 O.S. Section 11-902(a)

DEGREE OF IMPAIRMENT REQUIRED:
For DUI or APC alcohol or drugs or combination:  Is under the influence of alcohol or intoxicating substance other than alcohol or under the combined influence of alcohol and any other intoxicating substance which may render such a person incapable of safely driving or operating a motor vehicle.  47 O.S. Section 11-902 (2), (3), (4).   Note:  Oklahoma standard of “rendering person incapable of safely driving or operating motor vehicle” is same for alcohol or non-alcohol intoxicating substance or combination of both.

Lawfully entitled to use alcohol or controlled dangerous substance or intoxicating substance is not a defense.  47 O.S. Section 11-902(B)

PENALTIES FOR IMPAIRED DRIVING OFFENSES:
DWI first misdemeanor offense conviction:  six month incarceration in the County jail with from $100 to $500 fine, court costs and incarceration costs.

DUI/APC first misdemeanor offense conviction (.08 to .14 alcohol or intoxicating substance or combination):
---municipal courts “not of record”: zero to 30 days incarceration plus fines of $750 and victim compensation assessment (“VCA”) and court costs.
---municipal courts “of record” e.g., Oklahoma City and Tulsa Municipal Courts: zero to 180 days incarceration with fines of up to $1500 and court costs. 
---in all County District Courts  10 days up to one year incarceration with fines up to $1000; 47 O.S. Section 11-902 (C)(1)  Note:  all first offenses in Oklahoma are misdemeanors unless “great bodily injury is involved”.
Note:  VCA is a general crime fund established by the Oklahoma legislature with the intent to reimburse crime victims or their families who meet eligibility requirements.  Minimum VCA for misdemeanors is $35 per count regardless if there was an actual victim or not.  Minimum VCA for felonies is $45 per count.  VCA acts as an additional fine.

DUI/APC under 21 (misdemeanor):  no incarceration but on first offense $100 to $500 fine with 20 hours of mandatory community service; Second offense involves no incarceration, up to $1000 fine and 240 hours of community service; Third offense involves no incarceration, $100 to $2000 fine with 480 hours of community service and on all offenses, ignition interlock and inpatient/outpatient treatment are alternatives.
47 O.S. Section 11-906.4

Aggravated DUI first misdemeanor offense conviction (.15 blood or breath or higher):
10 days up to one year in county jail plus 28 days inpatient treatment, one year supervision with periodic testing plus 480 hours of mandatory community service, ignition interlock device minimum of 30 days plus regular misdemeanor penalties. 

DUI/APC first felony offense conviction within 10 years of a prior conviction from a “court of record” & including other states:  1-5 years incarceration in the state penitentiary/Department of Corrections (“D.O.C.”) plus up to $2500 fine, court costs, and VCA and DUI assessment with treatment.  47 O.S. Sections 11-902 (C) (2)

DUI/APC  second felony within a 10 year look back:  1 to 7 years DOC incarceration & not less than 10 days inpatient or imprisonment with not more than $5000 fine and/or inpatient treatment, aftercare, 240 hours community service, ignition interlock, DUI assessment, VCA and court costs.  47 O.S. Section 11-902 (C) (3)

DUI/APC third or more felony within a 10 year look back:  1-10 years DOC incarceration & not less than 10 days inpatient or imprisonment with not more than $5000 fine and/or inpatient treatment, aftercare, 480 hours community service, ignition interlock, DUI assessment, VCA and court costs.  47 O.S. Section 11-902(C) (4)

DUI with personal injury (misdemeanor):  90 days incarceration up to one year with not more than $2500 fine, VCA and court costs.  47 O.S. Section 11-904 (A) (1).  Second offense within 10 years results in  1-5 years DOC with up to a $5000 fine, VCA and court costs.  47 O.S. Section 11-904(A) (2)

DUI second offense within 10 years involving personal injury:  1-5 years incarceration with not more than a $5000 fine, restitution, VCA and court costs.  47 O.S. Section 11-904 (A) (2)

DUI with personal injury involving great bodily harm:  1-5 years incarceration with not more than a $5000 fine, restitution, VCA and court costs.  47 O.S. Section 11-904(B) (1)

DUI with a child under 15 as passenger of vehicle:  standard misdemeanor or felony penalties plus two times the fine amount of a base misdemeanor or felony DUI.  47 O.S. Section 11-902(M)

Note:  All of the above penalties involving City or County Jail time may involve the citizen paying the costs of said incarceration.

Penalties for DUI/APC or DWI offenses are found at Oklahoma Administrative Code (“OAC”) 595:10-7-2.
First offense DUI    =     5 points.

STATUTORY DRUNK DRIVING PRESUMPTIONS:
Measurable BAC of more than .05 but less than .08 for DWI and .08 and above for DUI with relevant evidence on the issue of being under the influence of an intoxicant and has prima facie effect. 47 O.S. Section 756 (2).  BAC of .05 or less is prima facie evidence that the person was not under the influence of alcohol.  47 O.S. Section 756 (1).  For those over 21 years of age evidence by blood or breath of an alcohol concentration of 0.08 or more shall be admitted as prima facie evidence that a person is under the influence of alcohol.  47 Section 756(3).  Other competent evidence bearing on the question of whether a person was under the influence of alcohol or an intoxicating substance or the combination is admissible.  47 O.S. Section 757.

Intoxicating substance means substances contained in the Uniform Controlled Dangerous Substances Act and any other substance, other than alcohol, which is capable of being taken and adversely affects the central nervous system, vision, hearing or other sensory or motor functions.  47 O.S. Section 751 (2)

IMPLIED CONSENT LAWS:
Oklahoma statutes governing Implied Consent hearings and chemical tests are found at 47 O.S. Section 751 et seq.  DPS has the burden of proof by a preponderance of evidence.
Peters v. Oklahoma Department of Public Safety, 557 P.2d 908 (Okl.1976).

The issues are:
1.whether the officer had reasonable grounds to believe the licensee was DUI or APC;
2.whether the licensee was arrested;
3.whether the licensee submitted or refused the requested test;
4.whether the licensee was informed that the license would be revoked for refusing the State’s test or if the test results were in excess of 0.08.  47 O.S. Section 754(F) (2).

Tests permitted:  Blood, breath, saliva or urine specimens 47 O.S. Section 756 (A)—law enforcement agency may designate blood or breath test as first test of choice.  47 O.S. Section 751 (B) Failure to designate a specific test means that breath first shall be tested for alcohol concentration absent a death or great bodily harm.  47 O.S. Section 751 (B)
To determine the concentration of other intoxicating substances---blood, saliva or urine shall be the tests.  47 O.S. Section 751.

Type of advisement required: Of implied consent law requirements; of penalties for refusing testing; of administrative suspension; of right to independent tests. 47 O.S. Section 751 and 47 O.S. Section 754.  There are 8 elements that the officer must advise the citizen of: 
1.Reasonable grounds to believe driver is under the influence;
2.You are requested to submit for testing:
3.The test will be a BREATH/BLOOD at no cost;
4.You may have at your own expense an independent test;
5.You are not entitled to consult with an attorney prior to your decision;
6.You may refuse the State’s test but will have your license suspended;
7.If over 21 and .08 or greater alcohol concentration will result in a license suspension or if under 21 and .02 or greater alcohol concentration will result in a license suspension.
8.Will you take the State’s test?  Abbreviated from DPS form. DPS: LD 1188-04 REV. 0701 (back) REV 1201 Statutorily defined throughout 47 O.S. Section 751 et seq.

Penalties for refusal: Immediate license seizure with 6 month suspension on first offense. Second offense within 5 years results in a one year suspension.  Third offense within 5 years results in up to a 3 year suspension.

Admissibility of refusal: Admissible.  47 O.S. Section 753.  Persons within two hours have the ability to “recant” and change their mind and take the State’s test if done within a short period, with testing equipment available, if no substantial inconvenience to police will result, and if the person had been in the custody of the arresting officer and under observation the whole time.  Baldwin v. State ex rel. Department of Public Safety, 849 P.2d 400 (Okl.1993).  Not cooperating with the officer is refusal by action.  BOT Action 97-1 and Application of Kunneman, 501 P.2d 910 (1972).

Administrative Per Se Law: Immediate license seizure and 6 month license suspension if BAC is .08 or more for over 21 years of age; for under 21, immediate license seizure and 6 month license suspension for BAC of .02 or higher or any measurable quantity and Judge may seize license for an under 21 year old and cause the suspension of the license until the person reaches 21 years of age.

All citizens are entitled to an administrative law hearing on the issue of license revocation.  Requests must be made in writing within 15 calendar days of the arrest.    
47 O.S. Section 754 (D).  Appeals De Novo on the merits (47 O.S. Section 755) and for license modification (47 O.S. Section 755) is allowed in the District Court where the offense occurred. 

CHEMICAL TEST LAWS:
Evidence of the alcohol concentration or any intoxicating substances in the blood or breath or urine or saliva of the person in accordance with 47 O.S. Sections 752 and 759 is admissible in any trial or proceeding arising out of an allegation of DWI, DUI or APC to show impairment or alcohol or intoxicating substance levels or if a person had a specific level of alcohol concentration.  47 O.S. Section 756.  Sample taken must be in accordance with Oklahoma Board of Chemical Tests 47 O.S. Section 759 and the specimen must have been taken within 2 hours of the arrest of the person.  47 O.S. Section 754 (F) (1) (b) and 47 O.S. Section 756 (C).

Oklahoma only uses the Intoxilyzer 5000-D manufactured by CMI, Inc. for breath testing.  Oklahoma Administrative Code (“OAC”) Title 40 Board of Tests for Alcohol and Drug Influence Chapter 20 Specimens 40:30-1-3.   Breath tests are reported in grams of alcohol per two hundred and ten liters of breath (g/210 L) truncated to two decimal places.  Results within 0.03 of each of the two breath samples are confirmatory. OAC 40:30-1-3 (d).   Each breath testing sequence consists of two exhalations and one simulator analysis.  OAC 40:30-1-3.

For blood results, “alcohol concentration” means grams of alcohol per one hundred milliliters of blood. 47 O.S. Section 756 (B)

BLOOD-DRAWING STATUTE: Blood may be withdrawn only by a licensed medical doctor, licensed osteopathic physician, licensed chiropractic physician, registered nurse, licensed practical nurse, physician’s assistant, certified by the State Board of Medical Licensure and Supervision, an employee of a hospital or other health care facility authorized by the hospital or health care facility to withdraw blood or other qualified person authorized by the Board of Chemical Tests for Alcohol and Drug Influence acting at the request of a law enforcement officer may withdraw blood to determine the concentration of alcohol or other intoxicating substance.  47 O.S. Section 752 (A) et seq.  Forced blood draws are allowed if there is an allegation of DUI with great bodily harm or manslaughter.  47 O.S. Section 753.

INDEPENDENT TEST STATUTE: Oklahoma allows a person to request and receive an independent test provided that the person first submits to the law enforcement officer’s test, and then makes separate arrangements and at the person’s expense to be tested and provide the State with an excess specimen for the State’s testing.  47 O.S. Section 752.

If the State requests blood, then a person has 60 days from the date of the collection of the blood to request and make arrangements at the person’s expense to have an authorized laboratory analyze the specimen.  47 O.S. Section 752 (E).

PLEA BARGAINING STATUTES: Yes. Oklahoma allows plea bargaining on misdemeanor and felony DUI’s.  Oklahoma allows a person to be sentenced to “counseling” in lieu of jail in DUI and drug cases per the recent decision of Hicks v. State of Oklahoma, 2003 OK CR 10 (2003 Supp.). 

On first offense misdemeanors and felony DUI/APC charges in Oklahoma, a person may receive:
1.a reduction in the charges;
2.an amended charge;
3.a suspended sentence; 22 O.S. Section 991a
4.a deferred sentence; 22 O.S. Section 991a or a deferred prosecution 22 O.S. Section 305.1.
5.a sentence of incarceration;
6.a fine only;
7.a conviction without jail or a fine;
8.a split sentence (certain amount of jail and then probation);
9.Night or weekend jail; 22 O.S. Section 991a-2.
10.Community Sentencing programs 22 O.S. Sections 988.19, 990a-1.1
11.Delayed sentencing option for young adults 22 O.S. Section 996.3

Note: For DUI/APC cases dismissed within one year of the arrest, a person may apply for an expungement of all arrest and court records.  22 O.S. Section 18 & 19.  For a person who successfully completed a deferred sentence, a person may apply for an expungement of only the court records through 22 O.S. Section 991 (C).

Respectfully submitted to the NCDD,

Thomas W. Hosty, OBA # 15260

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