Search Engine Blog Blog Search Engine Yahoo Verification Oklahoma Criminal Defense: February 2009

Some of the Options in a Tulsa Criminal Felony Case

A Description of Some of the Options in a
Tulsa Felony Criminal Case

By: Glen R. Graham, Tulsa Criminal Defense Attorney, (918) 583-4621, more information at his web site:

The Initial Appearance: Room 173 at 9:30 a.m. - Preliminary Arraignment (scheduling for preliminary hearing) – purpose is to schedule a preliminary hearing but usually it gets passed to give the defendant time to fully retain the lawyer.

Another word for "arraignment" would be to "schedule." So, a preliminary arraignment is a scheduling date for the preliminary hearing. Initially, it is passed for the defendant to employ or pay the attorney.

The next court appearance might be to apply to Drug Court, DUI Court, Accelerated Accountability Procedure Docket, Veteran's Court, Mental Health Court, or some other court.

If not applying for the other courts or if the type of charges or prior record does not qualify or if the prosecutor has not agreed to the other courts, then the case is set for Preliminary Hearing – Room 347 or 344 at 9:00 a.m. on the 3rd Floor. The witnesses to the case are subpoenaed by the State to appear and testify in the event that the defendant wants to challenge the evidence.

CHOICES: (For Your Attorney - An Application for Tulsa Drug Court or Tulsa DUI Court is posted at )

A. Drug Court or DUI Court: This should be done several days before the preliminary hearing, otherwise the court may require a waiver of the preliminary hearing before scheduling it.Drug Court or DUI Court is a court supervised treatment program for people with serious addictions to drugs or alcohol or both. It is an “intensive” supervision program normally something that is chosen as an alternative to prison by someone with a prior record, currently on probation, or as an alternative to prison. Starts with daily requirements like AA/NA meetings and weekly appearances in front of a judge, five phase program, lasts 1-2 yrs

B. Veteran's Court - If you are a qualified Veteran, and you are charged with a non-violent qualifying offense, then you may apply to "Veteran's Court." It is similar to the Drug/DUI Court. You and your attorney fill out an application and the prosecutor reviews it and either accepts you or denies your admission. The court makes the final ruling. If you qualify, then an assessment is performed and you will be assigned a mentor or case worker. It involves a treatment plan and multiple follow up court appearances to check on your progress.

C. Accelerated Accountability Docket or Community Sentencing - If you qualify and if you are charged with the type of qualifying offense, then you may be accepted to the AAP court. This is held in room 173 and is only for non-violent offenders which are accepted by the prosecutor. The prosecutor reviews the police reports and the nature of the case and can accept you into this type of court or not. If accepted, your attorney will negotiate a plea bargain for probation and a level of services inventory (LSI) is performed. This is a type of assessment performed by a probation officer whereby they give you a questionnaire to answer to determine what kind of social problems you may have if any. If you have a drug or mental problem, then it will require you to obtain an assessment and treatment. If you lack a diploma or have reading problems, then it will require you to obtain a diploma or get tutoring to learn to read. The court will order you to get help for whatever problems are discovered. You will get probation but required to obtain treatment for your problems.

D. Mental Health Court: (An Application for Tulsa Mental Health Court is posted for your attorney at ) It is limited to certain non-violent offenders who have records that do not prevent them from being admitted and who have non-violent pending charges. It is a treatment type program for people who have "mental health" issues. It involves following a treatment plan and close supervised monitoring by the court and by a staff of treatment providers and counselors.

E. Option - Challenge the Evidence & Have an Actual Probable Cause Hearing: You can have or put on the preliminary hearing where witnesses are called to testify. The issue is whether there is “probable cause” to believe that a crime was committed and that the defendant committed the crime. If no, case is dismissed. If yes, then the court gives you another court date to return before the assigned Judge above the 3rd floor in about one week. At that time you can try to work out a “different plea bargain” or you can order a transcript (written record of what happen which is prepared by the court reporter) of the preliminary hearing and file motions based upon the transcript and the new judge will determine those motions.

The preliminary hearing is normally the main chance to challenge the sufficiency of the evidence, the constitutionality of the arrest, search, and seizure. If you waive you hearing, then you are normally waiving your right to challenge the case and the evidence.If you put on the preliminary hearing then the prosecutor will normally withdraw their recommendation.After the preliminary hearing then the plea bargain may get better or it may get worse, so the final decision on whether to accept the plea bargain or reject the plea bargain is always up to the defendant.

F. Can waive the preliminary hearing because you have a “plea bargain” of some type worked out on the case.

G. Plea Bargain - Option 1 - Presentence Investigation (PSI) – Case may be passed (you waive preliminary hearing) for you to complete a presentence investigation. This leaves it up to the judge to decide whether to give you probation or not and whether to give you a deferred or suspended sentence and what the probationary terms will be. This involves an “investigation” by a probation officer who will perform a urine test on you for drugs/alcohol and a background investigation: criminal record check, social history, soc.sec.number check on employment history, letters to victim, copies of the official police version of the event, your version, a LSI evaluation psychological - social assessment with recommendations, copies of treatment information, and the probation officers recommendation. The Judge will sentence you in part based upon this report, but the Judge always has the final authority to decide what the final sentence will be in your case. If you qualify, the court may allow you to have probation, may allow you to have a “deferred” sentence – probation without a conviction or a “suspended” sentence – probation with a conviction or no probation or a split sentence.

H. Plea Bargain – Option 2 – Suspended sentence - you may be able to plead out without a presentence investigation to a straight suspended sentence. This is a felony conviction with probation but without a presentence investigation.

I. Plea Bargain – Option 3 – Deferred sentence – you may be able to plea out without a presentence investigation to a “deferred” sentence that is probation without a felony conviction. You will still have an “arrest” record but no conviction. If you successfully complete the terms of probation and return on the scheduled review date then the case is dismissed and the conviction is expunged, but you still have an “arrest” record.

J. Plea Bargain – Option 4 – if the prosecutor agrees – amended to misdemeanor – you may be able to plead out to a misdemeanor but only if the prosecutor agrees. This is normally only done in rare cases when there is some “weakness” in the case and the defendant does not have a prior criminal record.

K. Plea Bargain – Option 5 – if the prosecutor agrees – pass the case to obtain additional information or witness information or discovery or other information or to pay off restitution.

L. Option 6 – if bad charges or bad prior record – straight in-time prison recommendation. If you waive preliminary hearing or if you have a preliminary hearing and are given a new court date one week later, then it will be set in front of another judge.The next date is called “District Court Arraignment.” At that time you can order a copy of the transcript of the preliminary hearing and file written motion to dismiss, suppress, or other motions. You can also attempt to work out a different plea bargain.You can set the case for jury trial.

M. Opition 7 - Or, you can pass the case for no issue disposition for about thirty (30) days. If you waived preliminary hearing based upon an PSI recommendation: You will appear in front of another judge one week later, then the court will pass the case for thirty (30) days for a no issue disposition date. When you return to court then the court will expect you to enter a plea and begin the presentence investigation. You will enter a plea of guilty in front of the judge and the PSI probation officer will urine test you for drugs that day and begin the presentence investigation. Then court will pass the case for another thirty (30) days for you to complete the presentence investigation. When you return to court it will be for sentencing based upon the presentence investigation.

The judge always has the final authority to determine your sentence.If you are unable to work out an acceptable plea bargain, you might be able to obtain a recommendation from the judge and enter a “blind” plea without a recommendation from the prosecutor and have the judge sentence you.

Most Important Option: You do have the option or the Constitutional right to a jury trial.

A non-jury trial or trial by the judge is only possible if the prosecutor will waive their right to a jury trial and have a trial by the judge. In rare cases, it might be possible to have a non-jury trial or trial by the judge based upon the transcript of the preliminary hearing, and then appeal the court decision or rulings on the motion to suppress evidence. There is no right to appeal the judge’s rulings on the motions to suppress evidence or any other motions unless this is agreed to or unless there is an actual jury trial. A plea or accepting a plea bargain waives any appeals on the motions.

Can Provocation or Justifiable or Excusable Cause be a Defense to Assault and Battery with a Dangerous Weapon in Oklahoma

Can "Provocation" or "Justifiable or Excusable Cause" be a Defense to Assault and Battery with a Dangerous Weapon under Oklahoma Law?
By Glen R. Graham, Tulsa Criminal Defense Attorney,

Under the Oklahoma Uniform Jury Instructions, OUJI-CR-4-13, in the comments section therein is a discussion about the strange but true case of Eckhart v. State, 1956 OK CR 6, 292 P.2d 451, which provides the answer to the above question: "yes."
The Oklahoma Uniform Jury Instructions, OUJI-CR-4-13, provides that under the definition of the elements of the offense for assault/battery/(assault and battery) with a dangerous weapon by use of a firearm, under section 4 - that it be committed "without justifiable or excusable cause."

Further, section 5, requires that it be committed "with intent to injure the person." That the defendant used a particular device in a manner likely to produce injury or great bodily harm does not eliminate the necessity of proving that the defendant specifically intended to inflict such corporal harm.

For example, in Eckhart v. State, ibid, the defendant fired a shot at some laborers working on the roof of the building in which the defendant lived. The events leading up to the altercation included the facts that the workmen had disconnected the defendant's air conditioning on the previous day, and that they had begun working on the room at 5:30 a.m. on the day of the shooting. The defendant was awakened when chunks of plaster were dislodged from his ceiling and struck him as he lay in bed. One of the workmen stood only a few feet from the defendant as the defendant fired the shot.
The court reduced the defendant's conviction for assault with a dangerous weapon to simple assault, on the ground that the defendant's intent to injure someone was not established by these circumstances. At most, the court believed that the defendant was provoked by the incidents of the past day and fired a shot in order to scare the workmen and to demonstrate his grievance.

In Eckhart, ibid, the court held: "Rather, we think the accused was provoked and fired the shot in the air to scare the workmen and it certainly had that effect. The evidence was sufficient to show the accused was guilty of a simple assault. The maximum punishment for assault is 30 days in the county jail and a fine of $100 which we feel would be a just sentence in this case."
In Eckhart, the court reversed his conviction for assault with a dangerous weapon with a 9 month jail sentence and modified his sentence, and found him guilty of simple assault, a misdemeanor, and imposed a sentence of 30 days in jail and a fine of $100 dollars.

Preparing to Make the Best Impression and to Win Your Case in Tulsa Criminal Court

Preparing to Make the Best Impression and to
Win Your Case in Tulsa Criminal Court

By Tulsa Criminal Defense Attorney,
Glen R. Graham - Call (918) 260-8184

When you go to court, you should want people who have the power to incarcerate you or to impose a sentence on you to have some empathy or understanding or to care about you or to "like you." The Judge, prosecutor, lawyers, jurors and others are typically older, conservative people who will feel more empathy toward you if you dress in a manner appropriate to court. First impressions do count. If you dress inappropriately, the court may believe you are dressed like a person who needs more discipline in their lives and may impose that on you.
You cannot control other people, but you can control your own behavior and dress and style which will cause other people to have either a good reaction to you or a bad reaction to you.

An inappropriate hair style may alienate people. Do not forget to comb your hair and don't look like you just got out of bed.

A disciplined, appropriate dress and good manners can go a long way. Stand up when you speak to the court. Do not interrupt court. Take your hat off when you are in the court room. Do not wear sunglasses in court. Do not chew gum or read a newspaper while in court. Don't forget to turn your cell phone off while you are inside the court room.

A short hair cut or a burr hair cut can make you look like a law enforcement officer. A short hair cut is "conservative" and it is more likely that the court will treat you with respect if your look conservative. A defendant who looks like a law enforcement officer is going to get more consideration from the court and the prosecutor.

Men should wear slacks and a nice button collar shirt. Women should wear a nice conservative shirt and either slacks or an appropriate "business attire." You do not have to wear a suit, although if you dress up, a court might believe you are more "respectful" of the court than some other people.

Do not wear nose rings, facial piercings, ear rings, diamonds, or jewelry. Cover your tattoos with a long sleeve shirt or other clothing.

You should not dress like a "criminal." You should not dress like a teenager. You should not dress like a person who would commit a crime. Do not wear loud clothing. Do not over-dress, but do not under dress. Do not wear tank tops, t-shirts, gold chains, jumper or jogging suit, shorts, or any non-conservative clothing. Do not dress like the "Fonz" for court. Dress more like "Richie Cunningham." Do not wear a black leather jacket. Do not dress like a drug dealer or a rock star on MTV. Do not dress down for court but don't dress like a drug dealer either.

Currently, there is a problem finding adequate parking around the court house in Tulsa, Oklahoma. Also, you may have to wait in line to go through a metal detector before you can enter the court house. All of this takes time. You should arrive about 30 minutes before you court time, so that you can find adequate parking and so that you can wait in line to get inside the court house and so that you can be on time to court. There are several places to park around the court house which charge about $5.00 dollars to park all day or about $2.00 per hour. If you are willing to walk about six to eight blocks, you might be able to park for free. Most people are not willing to walk several blocks and so they chose to pay to park.

You should wait inside the court room for your name to be called and answer when your name is called. Sometimes, your lawyer may be late for court so you need to be patient and you need to answer when your name is called.

DUI and DWI in Tulsa, Glenpool, Broken Arrow, Bixby, Sand Springs

Attorney Information on DUI and DWI in Tulsa and Glenpool and Broken Arrow and Bixby and Sand Springs --- What to Expect? By Tulsa Criminal Attorney, Glen R. Graham (918) 260-8184
More information at:

Each case is different and there is no cookie cutter approach. One size does not fit all. Each person in the world has a different life story to tell and their cases are as different as that individual's life story. People are human beings entitled to be treated with dignity, respect, and as individuals and not just a number.

Are you a repeat offender? Are there any treatment programs available? What about DUI Court or Alternative Sentencing Courts or Accelerated Accountability Procedure or Community Sentencing or Mental Health Court or Drug Court or Tulsa's New Veteran's Court or any of the other alternative programs? See the prior post for more information:

What are the specific facts of your case? What are the mitigating circumstances? What are the factors that may cause your case to be treated more harshly or less severely than other cases? What kind of prior record do you have? What was your breath-alcohol result or your blood-alcohol result? Did you timely request a hearing on your driver's license which is like a free chance for discovery in your case?

What are the totality of the circumstances of your case?

Over the years, I have represented many people on different types of cases and each case is different. Once I represented a security officer who was suffering from a cold and took some nyquil and then a little bit of alcohol. Unfortunately, the nyquil already has alcohol and when you add alcohol or medicine with alcohol then the result can be intoxication. This person was a licensed CLEET certified security officer and having a conviction for an alcohol offense could result in repercussions more severe that the actual offense warranted under the totality of the circumstances. This person legitimately suffered a cold and took nyquil and alcohol but the combination results in synergism or multiplies the effects of the medicine and results in a medical intoxication. After discussing this matter with both the judge and prosecutor, we obtained a plea bargain whereby the offense was reduced to a much less severe penalty upon completion of certain requirements which kept an alcohol related conviction off of his record.

Upon conviction or as part of a plea bargain most Oklahoma courts are going to require a substance abuse assessment and are going to require the person to follow the recommendations of the assessment. Also, most are going to require completion of a DUI school, victim impact panel class, and payment of fines and costs. However, each case is different and alot can depend upon the specific facts and the totality of the circumstances.

One very important aspect of any DUI or APC offense is to request a hearing on your driver's license from the Department of Public Safety within 15 days of the date of your arrest. If you make a timely request for a hearing within 15 days, then the DPS will give you a temporary drivers license. At the hearing, your attorney may use the hearing as a discovery tool to see what the case is all about and to see what defenses might be available.

What about the test? Was it administered in accordance with the rules of the Board of Tests for Alcohol and Drug Influence ? For more information about the rules of the BOT and to access the rules, see:

To request documentation on the specific machine from the Board of Tests, see: ? Were correct procedures followed?

The refusal of a person to take a breath or blood test is admissible at trial in the case. 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).

Unless supported with medical evidence to an alleged mental incapacity due to emotional distress, drivers can not be found immune from the implied consent laws. Hollis v. State ex rel Department of Public Safety, 2008 OK 31, 183 P.3d 996.

The Department of Public Safety has authority to administratively suspend a drivers license. 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.

If a timely request for an administrative drivers license hearing is made within 15 days of the date of arrest, then a person arrested for DUI or APC is 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.

What about the stop? Did the officer have sufficient legal probable cause to stop you? Was there a violation of a traffic law prior to stopping you?

Why are there three (3) results listed for the breath test on the officer's affidavit, if you took the breath test:

The Oklahoma Rules of the Board of Tests have a permissible variance between each of the two (2) breath tests to be considered valid. The variance here in Oklahoma that is acceptable between the two (2) samples is + .03%. So, on the print out or officer's affidavit will be listed the results of blowing into the machine. There are 3 results. The first two are testing the machine and unless there is a variance of more than plus or minus .03 per cent then the machine is considered "working." If there is a variance of more than .03 %, then a re-test must be performed or the test is considered invalid.