If I Want To File A Petition In the District Court Of The County Where I Was Arrested, Where It Took Place, What Does That Petition Look Like? How Does Somebody Get It? What's The Process?
The Hunsucker Legal Group will draft a legal petition. This petition states that the person was arrested by the law enforcement agency. They were issued a notice of revocation, and they're appealing that revocation. We file that, get it set for a hearing date, and then send notice to Service Oklahoma so that they can stay the revocation of the person's driving privilege until we can resolve that case in the district court.
After The Petition Has Been Filed And There's A Hearing That's Going To Be Scheduled, Can You Walk Me Through That Hearing, How It Works, and What's Involved?
The hearing, basically, it's a non-jury trial. It's a bench trial to a judge, not to a jury. Service Oklahoma bears the burden, even though they're listed as the defendant in those cases. Service Oklahoma bears the burden of proving, by a preponderance of the evidence, a few different things depending upon whether it was a breath test or whether it was a refusal.
But in essence, they have to show: (1) that the officer had probable cause to believe that the person was operating or in actual physical control of the motor vehicle, (2) that the officer arrested the individual, (3) that the officer advised them of the consequences of taking a test or refusing to take the test, and (4) that the person either took the test and tested over the legal limit or the person refused to take the test.
At those hearings, Service Oklahoma will bring in the officer and any other pertinent witnesses, and they'll testify under oath before the judge. The defense attorney has the opportunity to cross-examine those witnesses. In the conclusion of the Service Oklahoma’s case, the defense attorney has an opportunity to enter any evidence that they may have to the judge.
At the conclusion of that there are closing arguments made by both sides, and the court will, most oftentimes, render a decision. Sometimes it will render a decision immediately. Sometimes there are instances where issues have come up that are new or novel where the court wants to have briefs submitted, or the court just wants more authority. In those instances, the court will take the matter under advisement and issue a ruling at a later date. That shows basically how it works.
At the conclusion of that, the judge really just kind of has two choices. They can either set aside the revocation. If they do that, that means Service Oklahoma has not proved their case. Or the court can sustain the revocation, meaning that Service Oklahoma has met their case. At that point in time, the driver would be required to install an ignition interlock device on their vehicle for the revocation period in order to reinstate their license. At this point, an individual may not sit out the revocation whether driving or not.
What Are Some Of The Common Ways That You Have Been Able To Challenge The Revocation At These Hearings?
Well, most of them are fact-driven, meaning that it depends on what happened in each individual case. Two come to mind recently. In one, an individual was pulled over. The basis for the stop initially was that the client had failed to signal a right-hand turn. What we were able to show was that he was in a right-turn-only lane, so he couldn't go straight or do anything else. He had to turn right. The officer was behind him in that same lane, so the officer, likewise, was going to have to turn right.
There was no other traffic around. It was early in the morning, so it was just the officer and my client on the roadway. Because my client was in a turn-only lane, the argument was that, "Well, by operation of law, he has to go that way." His failure to signal doesn't affect anybody because even the officer has to make that same right-hand. The court found that to be correct and ruled in our favor finding that my client, because there was no traffic around, was not required to utilize a signal.
Had there been another car there, say at that same intersection, then he would have had to use a signal because he could have had an effect on that car sitting at the intersection. But because there wasn't, we won the case.
Last week on Monday, I had a very unusual case wherein an individual was waiting for an Uber to show up. His wife had stepped off the curb and injured her foot. A friend of theirs offered to let them sit in the vehicle out of the cold and get her off her foot while they waited for their Uber. Since it was cold, they had the engine running to have heat in the vehicle. Well, my client was sitting in the driver's seat with the engine running when a police officer came walking through the parking lot and encountered him and subsequently arrested for actual physical control.
We were able to show that encounter wasn't the first time the officer had contacted my client. The client had contacted him twice just minutes before, and both times advised the officer that they were waiting for an Uber. When he came up to arrest my client for being in the vehicle at that time, they were even showing him the phone where Uber was on its way, but yet the officer still went ahead and arrested.
We were able to convince the court that, since there was no intent to operate the motor vehicle at all, they were just using it as a place of refuge. It did not violate the law, and the court agreed with us.
Does The Person Accused Of DUI Have To Be At This Hearing?
They do not. Their attorney can represent them in challenging the revocation. They used to have to be at the hearing if they wanted a modification. Under the old law, if a person sought a modification, it was at the discretion of the court. I would have to present my client's testimony in the event that we were not successful in challenging the revocation to show what their driving needs were, that they didn't have any other means of getting to and from work, so to speak, without being able to drive with the ignition interlock device.
The only reason our client would need to be there is if I actually have to call them as a witness in the case, but those cases are very few and far between because we rarely ever want to put our client on the stand, especially if they have pending criminal charges.
If Somebody Took The Breath Test, Is Any Of The Evidence From Used In The Hearing? For Example, if Somebody Blew Over The Legal Limit Or They Had A Blood Test, Does That Matter At The Hearing Or Can That Be Used In The Hearing?
Yeah, it can be used in the hearing. As a matter of fact, if the person took a breath or blood test, Service Oklahoma has the additional burden of showing that those tests were done in accordance with Oklahoma State law and the Oklahoma Board of Test administrative rules. There have been several cases over the past several years where DPS (now Service Oklahoma) has not met its burden in showing compliance with those rules. More often than not, there's a problem with the rules or how the Board of Rules promulgated their rules throughout, which resulted in the throwing out of breath test or blood test results. But yeah, if you get a breath or blood test, Service Oklahoma has to also show that those are valid tests that were done.
Then Are They Able To Bring Up Past DUI Charges At This Hearing?
Well, the way it works is the court, Service Oklahoma can't use prior revocations to, essentially it's showing that, "Well, gee, judge, they had a DUI before, so obviously they must've had a DUI this time.” They can't utilize previous DUI's for that position. What they can use it for though is after the court determines that Service Oklahoma has met its burden and they're going to revoke them, Service Oklahoma would then utilize the driving record to show previous DUI's where the individual had been revoked within the past ten years, which would increase the revocation period.
For example, a first-time revocation is for six months, a second-time revocation is for one year, and a third-time revocation, third or subsequent revocation, is for two years. If I had a client who had a previous revocation within the past ten years, Service Oklahoma would have to show that to the court in order to get the revocation this time around to be a one-year revocation.
If The Hearing Is Lost, Is There A Way To Appeal That Hearing?
Yes. It actually affects both sides – Service Oklahoma, should they lose, and myself, should I lose that case. You have a right to appeal to the Oklahoma Supreme Court. Unfortunately, you only have 30 days from the date the final order is entered by the district court to appeal that, so it's a very quick process. The Oklahoma Supreme Court, most generally, will assign those types of cases to the Oklahoma Court of Civil Appeals, which is a lower court to the Supreme Court.
It usually just involves filing the appeal by submitting briefs, transcripts, and documents that were filed in the case from the district court. They just review those documents, and then they'll determine whether the court was correct or whether the court had erred. Depending upon how they rule, both parties do have the right at that point in time to file what's called a writ of certiorari to the Oklahoma Supreme Court asking them to review the Court of Civil Appeals case. Sometimes the Supreme Court will do that, but sometimes they deny it. If they deny it, the Court of Civil Appeals’ opinion is the one that will stand.
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