What is the difference between a DPS license hearing and a criminal case?
All DUI cases consist of two separate actions. The first matter is the criminal case, in which the government seeks to prove each element of the crime beyond a reasonable doubt to a judge or jury. Criminal charges carry punishments such as fines and/or jail time.
The second matter is a civil action against your driving privileges. This action is completely separate from the criminal charge. The Oklahoma Department of Public Safety (DPS) will hold an administrative hearing to determine whether the Oklahoma Board of Tests (BOT) rules were followed during your arrest. If police did not adhere to BOT rules while administering field sobriety or chemical blood alcohol tests, your driving privileges will be reinstated.
It is critical to note that the DPS administrative hearing must be requested within 15 days of the arrest; otherwise, your license will be automatically revoked 30 days after your arrest for a period of no less than 180 days.
What indicators of drunk driving are police looking for?
The National Highway Traffic Safety Administration has set forth several indicators of drunk driving. Some of these signs include: weaving, swerving, drifting, turning with a wide radius, straddling lanes, almost striking an object or vehicle, following too closely, braking erratically, signaling inconsistently with actions, and driving slower than 10 mph below the limit.
What should I say if I am stopped and asked if I have been drinking?
You should always be polite and courteous with law enforcement officers; however, you should NOT admit guilt or apologize for anything. Do not try to talk yourself out of the situation. If the officer asks whether you have been drinking, it is best to say that you would like to speak to an attorney before answering any questions.
What should I do if asked to take a field sobriety test?
You are not legally required to take any field sobriety test. FSTs are highly subjective in nature, and you should never agree to take one. The best way to refuse is to ask the officer, “Am I required to take these tests?” The answer should be “no,” and if the officer gives any other answer, the jury may get the impression that the officer is deceptive. You also can ask the officer, “Are these tests 100% accurate?” Again, the answer should be “no.” At this point, tell the officer that you would like to speak to an attorney before deciding what to do.
Are field sobriety tests accurate?
If performed in a controlled environment by a trained officer who administers the tests in the prescribed manner, field sobriety tests can be an indication of intoxication. However, this is rarely done.
Research conducted by the National Highway Traffic Safety Administration concluded the Horizontal Gaze Nystagmus test (the “pen test”) to be 77% accurate, the Walk-and-Turn test 68% accurate, and the One-Leg Stand test 65% accurate, when conducted in the prescribed, standardized manner. Any deviation from the standard will compromise the tests’ accuracy. There are multiple factors such as weight, age, physical disabilities and weather or environmental conditions that can skew the tests.
Can my performance on an FST be affected by factors other than alcohol?
Yes. Multiple factors may affect one’s ability to perform the field sobriety tests; in fact, the National Highway Traffic Safety Administration has admitted that even sober drivers can have difficulty performing the tests. Factors affecting performance of an FST include: nervousness, fatigue, illness, headlights from other traffic or strobe lights from police cars, wind or other adverse weather conditions, dust in the eyes, inner-ear disorders, age, weight, footwear, and general lack of coordination.
Should I take the chemical BAC test?
Generally speaking, it is not a good idea to refuse the chemical test in Oklahoma. However, if you already have prior DUI convictions on your record and are more concerned about avoiding jail time than saving your license, then you should only take the chemical test if you are sure you can pass it.
If you have no prior DUI arrests and are pulled over by city police, a chemical BAC result of 0.15% or higher will increase the likelihood of state charges being brought against you, rather than municipal charges (municipal charges are better than county or state charges). The decision to file the charge in municipal court depends on the discretion of the police officer and/or local prosecutors. Some agencies like sheriff’s departments and the Oklahoma Highway Patrol will always file their charges in State District Court.
A test result of 0.15% or higher can also result in stiffer penalties if you are found guilty. On a first time offense, the refusal to take the test or a BAC of .15% or more will also require an additional 18 months of the ignition interlock on your vehicle after license reinstatement.
If you do submit to a chemical test (usually a breath test), politely ask for a blood test immediately after taking their test. Tell the officer that you will pay for it. Police will probably try to talk you out of this by saying it won’t matter or it is expensive and unnecessary, but don’t let them sway you. Keep insisting that you want a blood test and that you will pay for it.
How is breath testing done in Oklahoma?
The Oklahoma state legislature has approved the use of Intoxilyzer brand breath-alcohol analyzers for BAC breath testing. This machine comes in several different models—some based on technology over 30 years old—which Oklahoma law enforcement agencies are authorized to use. You can read more about the Intoxilyzer machine here.
How accurate is BAC breath testing?
The Intoxilyzer machine works on the theory that the amount of alcohol detected in your breath corresponds to the ratio of alcohol in your blood (your blood alcohol content, or BAC). This theory is inherently flawed for two reasons.
Only breath that comes from the deepest part of your lungs (alveolar breath) can render an accurate BAC reading. In other words, if alcohol from your mouth (referred to as mouth alcohol) mixes with the breath sample, the Intoxilyzer may give an inaccurately high BAC reading.
The second fatal flaw of the Intoxilyzer machine is that it makes the breath-to-blood BAC conversion based an assumption that everyone has the same blood/breath ratio of 2100/1 (2100 parts of alcohol in the breath for every one part of alcohol in the blood). However, this is not the case. This machine is really more of an alcohol estimator.
If you have been charged with DUI in Oklahoma, don’t leave your case to chance—call the Hunsucker Legal Group at 405-231-5600 to schedule a free consultation.
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