More information at: http://www.glenrgraham.com/
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: http://oklahomacriminaldefense.blogspot.com/2008/09/tulsas-alternative-courts-tulsa-drug.html
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: http://www.ok.gov/bot/index.php
To request documentation on the specific machine from the Board of Tests, see:
http://www.ok.gov/bot/reqdoc.php ? 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.
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