Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and we’re talking today about DUIs, DWIs, and what Oklahoma calls actual physical control. These are all crimes that you could be facing if you engage in an activity including drinking and driving.
There is a huge misconception in this world about what is legal, and what is not legal. There’s no law that says you cannot have a drink, and then drive a car. The law says you cannot drive a car while impaired or under the influence of alcohol. What does that mean in application?
Well, real briefly, we have three different types of drunk-driving in Oklahoma. The first one is DWI. We don’t see a whole lot of DWI charges because it’s a very limited number of folks. DWI stands for driving while intoxicated, and it’s something less than DUI. It generally applies when your blood alcohol content 0.05 to 0.07. So, it’s less than the mandatory requirement for DUI which is a 0.08 blood alcohol content. But it’s something greater than, “I’ve had a drink, and I got in the car.”
So, DWI is the first charge that you might see when dealing with DUI charges in the state in Oklahoma. Although, it’s not applied as often, it is certainly a nice benefit for individuals who were charged with DUI, and the scientific evidence comes back and says maybe they weren’t. It carries pretty much the same range of punishment. The consequences for probation are pretty much the same.
So, we’ll kind of skip over DWI for those purposes, and talk about what most of us know to be drunk driving in Oklahoma. It’s called driving under the influence – DUI. Sometimes, referred to as a ‘dewey.’ DUI simply means that you are driving a vehicle under the influence of alcohol, law enforcement believes that either by scientific evidence, or subjective evidence of their observations, that you’re body is under the influence, and therefore, you’re not safe to drive.
The range of punishment for DUI in Oklahoma is very great. Much like some of our other charges, like possession of marijuana, and domestic violence that we’ve talked about in the past. Your first time DUI is almost always treated as a misdemeanor, unless it has some aggravating characteristic. So, most folks first-time DUI is a misdemeanor. The range of punishment is a mandatory 10 days in the county jail, up to a year, and up to a $1000 fine.
Many people think about DUIs and they realize that a lot of their friends and family members have them. It has a very morally unsound connotation. And judges are harsh on DUIs. And prosecutors are harsh on DUIs. And our legislature, as we speak right now, are trying to make DUI charges and convictions enhanceable so that people will be charge with felonies in a quicker, more efficient way. So, they can be very, very dangerous. They’re also one of the most common crimes we commit, and also one of the safest crimes to commit.
What you have to know, if you’ve been charged with a DUI, or you’re being arrested for a DUI, is how to interact with law enforcement, and what to expect moving forward. So, if you’re pulled over, and you’ve had a few drinks, and you know that the police officer’s going to ask you a serious of questions. My first advice to folks is you’re not require to answer any of their questions. You’re only required to give your driver’s license and insurance verification. And if you can find a polite, respectful way to decline other questions, that’s my first piece of advice.
You have a Fifth Amendment right to remain silent. I strongly encourage that you use it. And you can do it in a simple way as saying, “Officer, I do not wish to engage in consensual contact, and answer any of your questions at this time.” That sounds a lot easier said than done. We want to engage with law enforcement, and we want to answer their questions, and they know that. They’re banking on the fact that we’re going to be a little bit nervous. But, what you have to understand is that these questions are designed to elicit answers that give rise to arrest you for DUI. So, if you answer those questions, you are causing yourself more harm than good.
One of the that a law-enforcement officer will ask you to do if he believes that you’re driving under the influence of alcohol, is engage in field-sobriety tests. And you’re not required to engage in field-sobriety tests. And, in fact, I encourage most people not to do so. The tests are incredibly subjective. They’re set up for you to fail, and the officer’s observations, especially if you’re not recorded, and here in Oklahoma City most law-enforcement officers are not equipped with dash-cams or body-cams to be able record your actions. So, the evidence that’s going to be presented against you is simply the police officer’s interpretation of how well you followed those instructions. And usually, that is not to your benefit. So, I would encourage you to resist the urge to prove your sobriety by getting up and doing field-sobriety tests. Those tests are designed to make you look guilty, and have you arrested.
The next question everybody always asks is, “Do I blow, or do not blow, into the Breathalyzer machine?” And this is a very sensitive topic. And everybody asks drunk-driving lawyers this question all the time. If we represent people in DUIs, should I blow, or should I not blow? And, 10 years ago, the answer was if you think there’s a possibility that you might be DUI don’t blow. Because you’re giving them evidence to convict you criminally.
Now, a DUI charge has two elements to it. Not only do you have a criminal battle to fight – whether, or not you’re going to jail and paying $1000 fines for your actions. But, you also have a civil matter going on. And that’s through The Department of Public Safety. And The Department of Public Safety says that you do not have a right to drive a vehicle in the state of Oklahoma. You have the privilege to drive a vehicle in the state of Oklahoma. And they, with all of their incredible lobbying, expenses, have lobbied the legislature, and have really changed the way DUI laws are handled and how people give advice.
If you refuse to blow in a Breathalyzer, and law enforcement has suspected and accused you of DUI, your refusal to blow will result in the revocation of proceedings from The Department of Public Safety. Depending on your history, and if you’ve ever had DUIs in the past, how long you’ll be revoked, and how long you’ll be subjected to what we call a modified driver’s license, is determined based upon your priors. But a refusal’s going to revoke you for at least six months. And in order to get re-instated you will have to put a breathalyzer in your car for an additional 18 months. So, a refusal means two months of a breathalyzer in your car if we lose DPS hearings, and we don’t have any other issues to deal with there.
So, whether to blow, or not blow, only you know how much you’ve had to drink. If you know you are not above the legal limit of 0.08, then I would certainly encourage you to consider blowing for two reasons. Number one, it will give exculpatory evidence to you DUI charge, and we may be able to get it down to a DWI or complete dismissal. In the alternative, it keeps your driving privileges intact with The Department of Public Safety.
There are other ways that DUIs can go down. We could talk for hours about defending DUIs in Oklahoma, but we just have a limited amount of time. So, we’re going to move quickly to how you find yourself charged with a felony DUI. If you have been arrested, and entered a plea, and been convicted for a DUI within the last 10 years, your next DUI is very likely to be filed as a felony charge. So, you get one shot a misdemeanor, and if you pick up another one it’s very likely you’ll be dealing with a felony charge. The range of punishment there is one year to five years in The Department of Corrections, and an increased fine. Your second felony within 10 years carries 1 to 10 years in The Department of Corrections, and a $5000 fine. And your third felony DUI within 10 years carries up to 20 years in The Department of Corrections and up to a $5000 fine.
It is clearly obvious that the legislature is trying to discourage folks with chronic drinking problems from getting behind the wheel of the car. Not telling you not to drink. They’re telling you not to get behind the wheel of the car and put at risk the lives of everybody else on the road.
How else do you find yourself with felony charges with a DUI? One of the things we see more, and more often, is that the driver has a child in the car. If you have a child in the car, and you’re arrested for, suspected of, and charged with DUI, you can likely expect to get charged with child endangerment, as well. Which is a felony crime – carries up to four year in The Department of Corrections and up to a $5000 fine.
Another quick way to make an otherwise benign, simple DUI a felony is if you’re involved in an accident that results in personal injury of another person. That is problematic, and it is an enhancer, and depending on your priors, and facts and circumstances could give rise to felony charges. It could give rise to simply a misdemeanor charge of personal injury DUI which carries up to a year and up to a $2500 fine.
What happens if you are charged, and you go to court, and you decide to enter a plea. Well, Oklahoma laws are pretty specific. And each municipality kind of deals with these things in their own vein. But if we’re dealing strictly with state court, and that’s probably the best way to do it for these purposes, is upon a plea of guilty, or no contest, and a finding of guilt by a judge, whether we’re convicted of the DUI, or we’re placed on a simple deferred, Oklahoma law mandates that we do some things.
The first thing you’re going to have to do is a drug and alcohol assessment, and any follow-up that they recommend. That’s conducted by a state-qualified assessor. It’s a battery of questions. They take you’re answers and plug them into a formula and they make recommendations as to what you need to do address the issues that found us here. Oftentimes, experienced assessors also know what the law is. And they know upon a finding of guilt, or a plea, that you’re going to have to engage in two other programs.
So, we know we’re going to have to do a drug and alcohol assessment of some kind. And it’s very likely, that as a result of that assessment, the follow-up recommendations will be that you go to a DUI school, and a victims’ impact school. DUI schools come in different varieties. First-time offenders are generally only required to do a 10 hour DUI school. That means you go to class for 10 hours. It’s an active participation. There’s a workbook. There’s some defensive driving skills in there. Basically, it’s about informing you what physiologically happens in your body when you drink to discourage you from engaging in further drinking and driving. If you’re a repeat offender it is possible that you will be required to do a 24 hour DUI school.
Almost everyone is required to go through a victims’ impact panel. A victims’ impact panel is something that has kind of been supported, and pushed through, by Mothers Against Drunk Drivers. It is designed to inform, scare, and shame the participants into seeing what is the worst-case scenario. Although, most people engage in driving while having had a couple of drinks, and most people will do this repeatedly throughout their entire life, and never be in a car accident. It is the rare occasion that a car accident occurs, and fatalities occur. And this fear of this happening is what is really driven DUI laws to become so strict.
Victims’ impact panel is a one-time event that you go, and you will listen to three individuals who have been directly impacted by DUI. Most likely, you’re going find a first responder, a police officer, an EMSA driver, a fireman. They’re going to show you a series of videos and images of mangled cars, and damaged bodies. And they’re going to talk to you about the impact that arriving on these scenes have upon them personally. It’s a very emotional experience. The next person you’re likely to hear from is someone who has been directly affected. Either they’ve lost a loved one, or they’ve been mangled and majorly injured themselves. They are the victim of the DUI, and they will share their story to explain to you the impact that this has had on their life. And then, the third person you generally hear from is an offender. Usually working some rehabilitative program. And part of that is to come out and share his story. And he will come out and talk about the consequences he suffered both emotionally, mentally, and legally when he engaged in drunk driving and was ultimately, probably caused someone some very serious harm. And has suffered long-term effects, as opposed to most folks who just get to plead to probation.
And that’s a quick overview of what to expect in a DUI case. Every municipality deals with the order in which you’re going to do it, and where you need to go, in different specific ways. So, it’s important that if you’re charged with DUI, or DWI, that you contact an experienced DUI lawyer. Someone who deals in defending drunk driving cases, so they can direct you so you’re not using your money superfluously and doing things that are unnecessary because you’re going to have to do it another way.
Finally, one of the ways that you can be charged under a drunk driving statute in the state of Oklahoma is a thing called actual physical control. Actual physical control is a real interesting charge in the state of Oklahoma, because what it’s saying is that you’re not driving a vehicle, but you have keys, the vehicle is operational, and you’re drunk. Therefore, they hold you to the same level of responsibility as if you had actually put the keys in the ignition and got on the road. This is dangerous and scary because many folks have been told, you know, if you’re driving and you realize you that you’re a little too drunk to drive the best thing to do is to pull over. Crawl in the backseat and take a nap. Sleep that off so that you don’t continue to put yourself and others at risk. Because of our aggressive legislative needs, and our policies here in Oklahoma, actual physical control, when you make a decision to not drive, but to remain in, or around, your vehicle while your intoxicated, the court system and the cops are going to treat you exactly the same as if you’d gotten in that car and driven off. The statute fall under the same statute of DUI. The range of punishment is exactly the same. And the motivation to do the right thing quickly goes away.
People come all the time and ask, “How could this have happened? I was trying to do the right thing by not driving my vehicle.” The sad reality is, the way the laws as they exist today almost encourage DUI because it’s better to take the risk of going and not getting pulled over, than to do the right thing and pull over in a parking lot in a safe, lit environment. Because there’s a strong likelihood that someone’s going to report you. Or, law enforcement will show up. And the damage is just as bad as if you had just gone ahead and driven home.
With respect to DUI defense in Oklahoma, those are the three primary things that you would see: DUI, DWI, and actual physical control. It’s important that if you are arrested for this charge, the sooner you get in with a lawyer the better. Because we can start navigating your way through this obstacle that is the criminal justice system. And the sooner we get started, the easier it is for you. and the more beneficial it is for defending your case. Whether, or not, we’re working towards a plea negation. Or, whether, or not, we’re working towards an .ultimate trial for the purposes of acquittal. The sooner you get in with your lawyer, and start strategizing the better.
And that’s all we have to say today about drunk driving in Oklahoma. Thanks for joining us. We’ll be back next week with another topic.
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