Breath Test Rendered Invalid in All Open Oklahoma DUI Cases

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September 30, 2016
Oklahoma City, Oklahoma

Thousands of pending Oklahoma DUI-related driver’s license cases will potentially be dismissed thanks to attorney Brian Morton of the Hunsucker Legal Group in Oklahoma City and the Edge Law Firm in Tulsa.

On Monday, September 26, the state Supreme Court denied a motion to hear a case in which Morton challenged the procedures by which the Oklahoma Board of Tests approved breath-testing devices used in DUI cases. By refusing to hear the case, the Supreme Court effectively upheld the decision of the Oklahoma Court of Civil Appeals, which said that the Board of Tests did not properly approve parts of the breathalyzer machine.

Based on this ruling, the breath test in all open or pending driver’s license cases is now invalid, which means that the Oklahoma Department of Public Safety (DPS) will not be able to revoke licenses based on the breath test.

“In order for [DPS] to revoke the license, they must show that they followed the rules and procedures. They didn’t do that,” said John Hunsucker, founder and principal attorney of the Hunsucker Legal Group.

Every DUI in Oklahoma consists of two cases—a criminal case dealing with the act of driving under the influence and an administrative case dealing with the driver’s license.

Morton, a former DPS prosecutor who now exclusively defends clients in their administrative driver’s license cases, explained the details of the case.

“I had a case in a local district court in which I argued that the Board of Tests’ rules required the use of a new mouthpiece for every breath sample taken and that DPS had not shown compliance.

“That set the judge in the case to looking into the Board of Tests’ administrative rules and resolutions,” Morton said. “He found that they were basically circumventing the Administrative Procedures Act, which effectively invalidated the current breathalyzer test.”

Morton also clarified that the decision will affect all open driver’s license cases in Oklahoma, not just those being handled by the Hunsucker Legal Group and Edge Law Firm.

“This is literally going to have an impact on thousands of cases across the state of Oklahoma,” he said.

“For the second time in just three years, our firms have had a hand in invalidating the breath test in Oklahoma,” Hunsucker added. “DPS must be held accountable just like everyone else, and we must ensure that they act in accordance with their own rules.”

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