The information printed in the Eddie Sutton article in the February 15, 2006 Daily Oklahoman concerning the penalties for DUI and the statutory requirements for DUI are incorrect. The information posted applies to a DUI under 21 which is designed for those persons under the age of 21 who have a BAC below .08 and greater than .02. Eddie Sutton is not charged under this statute as he is not under the age of 21. The DUI law that Eddie Sutton will most likely be charged under is Title 47, Section 11-902 of the Oklahoma Statutes which carries a penalty of not less than ten days nor more than one year in the county jail and a fine of not more than $1,000.00. The statute requires that the driver be "under the influence of any intoxicating substance other than alcohol which may render such person incapable of safely driving or operating a motor vehicle". 47 O.S. 11-902 (A)(3).

See video of Eddie Sutton news conference
911 Transcripts of Eddie Sutton DUI charge
Stillwater Police Department diagram of Eddie Sutton DUI accident
Stillwater Police Department Witness Statements of DUI accident
Stillwater Police Department report of Eddie Sutton DUI arrest 

Oklahoma uses a machine called the Intoxilyzer 5000-D, which is commonly called the “breathalyzer”. (I call it the Intoxiliar because of its inaccuracies)

• The Intoxilyzer 5000-D costs about $7,500. Some models have been in service for 15 or more years.
• The Intoxilyzer 5000-D is simply a computer based on very old technology. The brain of this thing is a Z-80 microprocessor, which was introduced in 1975, over 30 years ago. Remember the “Radio Shack” TRS-80? Its processor was the Z-80.
• The machine works on the theory of Infrared Spectrosphopy, which is the absorption of infrared light. There is a light bulb at one end of the breath cylinder and at the other end is a filter wheel with 3 filters. As you blow into the tube, the theory is that alcohol will absorb the light rays and not show up on the filter wheel.
• The amount of Breath actually measured is very small (only 81 cc.) and must be converted to a number we will understand. The conversion the machine makes would be similar to taking a paper towel tube and increasing it to the size of a 55-gallon drum. Any error in the testing will be exaggerated by that amount.

Many people, including lawyers, will look at a breath test result and say, “Oh, you scored a high number, you will be convicted”. THIS DOES NOT HAVE TO BE TRUE, but it does show a total lack of understanding of the testing process and procedures. I have trained extensively and understand how the machines work and what problems can occur in them.

Your lawyer’s knowledge in this area of DUI litigation often is the difference between a conviction and being found NOT GUILTY.

How accurate are the chemical testing procedures?

• Oklahoma law provides that a suspect can be tested by blood, breath or both.
• Blood testing is generally considered to be the most reliable and accurate method. However, this is the least desirable by the police because it is more expensive and time consuming. Additionally, blood testing would allow you to have a second test performed on your blood sample by your own expert.
• Breath testing is more convenient, cheaper and is not subject to retesting. The machine is capable of preserving a sample, the law allows retesting of any saved sample but it cost about $2 to retain the sample and no agencies are willing to spend the money or subject themselves to being rechecked.

To be clear, the police use the cheapest, most convenient, non-testable, scientifically debated chemical test when your freedom is on the line.

If you are arrested for DUI and have a license from a state other than Oklahoma, the officer more than likely will keep your drivers license. Oklahoma will retain your license and suspend your driving privilege even though it cannot suspend your driving privilege in your home state.

45 states belong to the Interstate Drivers License Compact and all member states report driving violations to each other. Your licensing state may or may not take action, depending on the outcome of your DUI case in Oklahoma and what is actually reported to the licensing state. An example is Kansas. Kansas will not suspend your Kansas license if Oklahoma only reports an administrative revocation; they require a conviction on the criminal case before they will take action against a Kansas license. Different states have different rules.

To preserve your rights, I must request a hearing within the required 15 days. If not, your privileges will be suspended in Oklahoma and your home state will be notified. Due to the different rules, an attorney cannot be current on the regulations for all 50 states. That is why it is to your advantage to have a DUI LAWYER protecting you. I am in contact on a daily basis with DUI attorneys all across the nation. I am able to access information and provide you with professional advice from other nationally known DUI attorneys who practice daily with your states agency. This expertise is provided at no additional charge to you as the client.

In Oklahoma, you will be given 2 tests and those tests must be within .03 of each other. If your first test was .08, an acceptable second test could range from .05(not intoxicated) to .11 and be acceptable. CLOSE ENOUGH FOR GOVERNMENT WORK!

• Neither the State nor the manufacture of the machine will allow anyone other than law enforcement to test the machine for its accuracy and reliability. For a procedure to be accepted as accurate and reliable in the scientific community, it must be open and available for the scientific community to test and retest the procedure. This is not permitted with the Intoxiliar. What are they hiding?
• The number produced by the machine comes from a mathematical formula in the machine. The manufacturer will not divulge this formula, claiming it is ‘proprietary.’ Again, what are they hiding?
• A sample of your breath could be saved for retesting for about $2 but the State chooses not to save it. Why don’t they save a sample when your Freedom is on the line?
• A few of the many other issues that can affect the accuracy of a breath are: body temperature, breath temperature, power surges, radio frequencies, mouth contaminates(smokeless tobacco, dentures, denture adhesives, mints, lip balm etc), physical problems, exposure to certain chemicals, diabetes, esophageal hernia, heartburn, liver disease, certain diets, certain medications, machine malfunctions, improper maintenance, and improper training. This is not an inclusive list.

There is a way to get your license back but you must act IMMEDIATELY. . .

• I only have 15 days from the date of your arrest to appeal your license suspension.

• Your driving privileges continue for 30 days from the date of your arrest, but the period for initiating your appeal is 15 days.

• This is not the same as your court date. This is a completely separate hearing and a separate deadline.

• The first step is to request a hearing with the Department of Public Safety. If that request is not received by the Department of Public Safety within 15 days of your arrest, you will lose your license and this revocation cannot be appealed.

• The appeal is technical in nature and is based upon the Board of Test guidelines and procedures followed by the police. This requires an experienced DUI LAWYER.

• The Department of Public Safety does not give work or daytime licenses. You either get it back completely or not at all.

• You may be able to get a modification for driving but this is AFTER your license is suspended.

• You are entitled to a hearing, even if your license was suspended at the time of your arrest.

Many lawyers will tell you trying to get your license back is a waste of time.

It is for them because they do not know the procedures and polices to effectively fight for you or they just don’t care.

Think------ If we appeal your license suspension and loose, the worst that can happen is that your license will be suspended. THAT IS THE SAME THING THAT WILL HAPPEN IF YOU DON’T FIGHT, so this appeal is actually free representation for you. ALSO, there are some important tactical advantages to having the hearing.

Also, DO NOT let an attorney “phone in” this hearing. He would do this because he does not value your case enough to spend the time to physically appear in another court. Again, there are tactical reasons why your attorney should physically appear for this hearing.

Special problems attach if you have a Commercial Drivers License or a Pilots License.

DO NOT GIVE UP WITHOUT A FIGHT—Only good things can come from having this hearing.

You can estimate the percent of alcohol in the blood by number of drinks in relation to body weight. To make an estimate:

1. Count your drinks (1 drink equals 1 ounce of 100-proof liquor, one five ounce glass of table wine or one 12-ounce bottle of regular beer).

2. Use the chart below and under number of "drinks" and opposite "body weight" find the percent of blood alcohol listed.

3. Subtract from this number the percent of alcohol "burned up" during the time elapsed since your first drink. This figure is .015% per hour. (Example: 180 lb.
man - 8 drinks in 4 hours / .167% minus (.015x4) = .107 %

[Created from NHTSA chart, with modifications]

SOCIAL ISSUES

Men account for an overwhelming majority of those arrested for DUI. However, the percentage of female arrestees has increased rapidly in the last 2 decades.

There are several factors that account for the growing number of females accused of DUI, social and physiological.

Law enforcement officers’ attitudes towards women have changed over the decades. It was once more likely for an officer to ensure that a female drunk driver got home safely, rather than put her in a jail cell.

There is no doubt that the changing role of women in American society has played its part as well. More women are in the workforce and there are more female professionals. These changing lifestyles of women place them in positions that are more conducive to a DUI arrest.

GENDER/TEST BIAS

While the above issues are factors, the most pressing issue is test bias. Studies have shown that women tend to score higher on breath testing machines. This is because the machines are set for an average male's lung capacity. This is inherently unfair to women and should be addressed by your lawyer. The average woman’s body has a higher fat to muscle ratio than does a man. This affects the absorption of alcohol because the average male’s body is 68% water while the average female’s body is only 55% water. Water and alcohol mix and quickly distribute throughout the body; thus a male tends to dilute alcohol more quickly than does a female.

Alcohol also affects women differently than men due to the fact that women metabolize alcohol more slowly. Women have less of the ADH enzyme. This causes a larger proportion of the ingested alcohol to reach the blood system prior to being converted to acetate. Women experience fluctuations in hormone levels during their menstrual cycle that may affect the rate of alcohol metabolism. This makes a woman more susceptible to elevated blood alcohol concentrations at different points in the cycle. They will experience their highest BAC during their premenstrual stage. Since body temperature is also elevated at this time, and during menopause, a women's true blood alcohol level may be overstated because breath testing in Oklahoma assumes that the temperature of expired breath is 34 degree Celsius. Every degree above “average” will result in a 6.9% false high reading. In addition, there is also some evidence that a woman taking birth control pills will produce higher BAC levels.

Thus a woman of the same size and drinking the same amount as a man will often show a higher BAC reading. Men and women’s bodies are not the same but the machine used by the police assumes they are. You should consult a DUI attorney who is capable of protecting you from this bias.

• “Dump truck” is what attorney’s call other lawyers who only want to dump their clients by pleading them guilty instead of offering a vigorous defense. Unfortunately, there are a number of such lawyers and they can be spotted in several ways.

• Any attorney that quickly leads the conversation into a discussion about plea bargaining is suspect (unless there are several prior convictions, injury accident or other complications).

• Another sign of a "dump tuck" lawyer are promises to get it all taken care of quickly, with no appearance by you. One such attorney advertises, “NO COURT APPEARANCES, NO TIME OFF WORK”. You cannot fight these type of charges that way. Not surprisingly, the ad also says, “LOW COST”.

• Low cost and quality representation are two traits that you do not find at the same time. If the attorney is primarily selling himself as a low fee alternative, it means he is either not as well qualified or he will spend much less time on the case than is required. Far too often, both are the case in DUI representation.

• Another warning sign would be an attorney who is willing to quote a low fee over the phone after a very short conversation. He/she has already decided they will just go through the motions. It is reasonable to spend 1 to 1 ½ hours with your attorney before deciding to hire him and there is no fee for such an appointment.

• Be wary of the attorney who meets you for the first time at court and wants money to be there. This is not representing you. He doesn’t even KNOW WHO YOU ARE! Your first meeting should be in an office and it should be a detailed investigation into the case. Only then, can the lawyer give an initial evaluation and advise you properly for the next stages.

• You should be assured the attorney is capable, willing and ready to take your case to trial. You are best represented in any discussion from a position of strength rather than weakness.

There is no legal requirement to take any field sobriety tests and as such, you should never take them. These are subjective tests that are only 65%-77% correct when administered in perfect conditions, administered exactly as designed and evaluated impartially.

The Officer ALREADY THINKS YOU ARE INTOXICATED—why else would they request you take the test? An officer who already is biased against you is the one who will be ‘grading’ your performance. In America you DO NOT HAVE TO PROVE YOUR INNOCENCE---- it is the Officer’s duty to prove your guilt. You have no obligation to do his job or help at this point.

The best response is to ask the officer "Am I REQUIRED to take these tests?” The honest answer is no. Any other answer could leave a jury with the impression the officer is deceptive. At this point tell the officer that you would like to talk to an attorney before deciding what to do.

The Officer most likely will refuse your request but there is a huge difference between refusing to take the tests and asking to talk to an attorney before making your decision.

Please note----the refusal discussed above applies to the Field Sobriety Test only. Refusal of the Breath Test is a different issue with different rules.