Misdemeanor DUI vs. Felony DUI
In Oklahoma, DUI (driving under the influence) and APC (actual physical control) can be charged as either a misdemeanor charge or a felony charge. If your charge is filed in the municipal court, then the charge will be a misdemeanor as municipal courts do not have the jurisdiction to file felony charges. One caveat...a city police officer can cause the charge to be filed in the county district court or municipal court.
If your DUI arrest is your first arrest, then the charge will be a misdemeanor. In order for a DUI or APC charge to be a felony, you must have a previous DUI or APC conviction from a court of record within the previous ten years. The only courts of record in Oklahoma are the county District Courts or the municipal courts of Oklahoma City and Tulsa. Thus, if your prior DUI conviction was from Edmond, Midwest City, Jenks, etc, your new DUI charge will still be a misdemeanor as these are not courts of records.
The second requirement needed to enhance your DUI or APC to a felony is that the prior must have resulted in a conviction for DUI or APC. If your charge was reduced to a non DUI/APC charge like reckless or careless driving, then your new DUI charge cannot be filed as a felony. If you received a deferred sentence on your prior DUI charge, then the new charge will still be a misdemeanor as a deferred sentence is not a conviction.
The third requirement to enhance your new DUI charge to a felony is that your prior conviction must have occurred within the previous ten years. This requirement runs conviction date to conviction date. So, if your prior conviction occurred on Jan 2, 1999 and you are arrested on January 1, 2009, you may be charged with a felony DUI but it would have to be reduced to a misdemeanor as it would be impossible for the State to obtain a conviction in one day. Thus, the second conviction date would fall outside the ten years and would force a reduction in the charge to a misdemeanor.
Wednesday, May 6, 2009
Monday, May 4, 2009
Time Is Important
When arrested for driving under the influence (DUI) in Oklahoma, an administrative hearing must be requested within 15 days of receiving notice that DPS is going to suspend your license. This notice is normally given to you when you are arrested and is contained on the back of the Officer's Affidavit and Notice of Disqualification. The 15 days is jurisdictional and if missed, generally there is nothing that can be done to save your license.
Time is also important as the sooner Bruce and I can start investigating your case, the higher the liklihood that we can preserve evidence that can protect you. For instance, there are several breath Intoxilyzer rooms that contain video cameras but the cameras are on a loop that erases and records over itself every 10 -15 days. If we are contacted early, we can preserve this tape which can show inconsistences in how the test was administered.
Time is also important as the sooner Bruce and I can start investigating your case, the higher the liklihood that we can preserve evidence that can protect you. For instance, there are several breath Intoxilyzer rooms that contain video cameras but the cameras are on a loop that erases and records over itself every 10 -15 days. If we are contacted early, we can preserve this tape which can show inconsistences in how the test was administered.
Daily Oklahoman DUI Mistake
This last weekend, the Daily Oklahoman did a story about DUI and sports figures. Instead of going to a credible source, they got their information from the lobbying group MADD. The article in the paper stated that if you are arrested for DUI and your breath alcohol level is .15 or higher, you will be charged with Aggravated DUI. While Oklahoma has an Aggravated DUI Statute, not every county charges it.
The mistake in the paper was that the article stated that the penalty for Aggravated DUI was the same as a third time felony. The penalty for a third time felony is 1-10 years in the state penitentiary and/or up to a $7500.00 fine. This is incorrect.
Aggravated DUI is cover under Title 47 Section 11-902 of the Oklahoma Statutes and is as follows:
"D. Any person who is convicted of a violation of driving under the influence with a blood or breath alcohol concentration of fifteen-hundredths (0.15) or more pursuant to this section shall be deemed guilty of aggravated driving under the influence. A person convicted of aggravated driving under the influence shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall comply with all recommendations for treatment. Such person shall be sentenced to not less than one (1) year of supervision and periodic testing at the defendant’s expense, four hundred eighty (480) hours of community service, and an ignition interlock device for a minimum of thirty (30) days. Nothing in this subsection shall preclude the defendant from being charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C of this section."
As you can see, the Aggravated DUI language just adds additional requirements but not change the standard punishment range which for District Court cases is 10 days to one year and/or a fine up to $1000. for misdeameanor cases, 1-5 years and/or a fine of up to $2500 for first felony DUI, 1-7 years and/or fine of up to $5000 for 2nd felony, and 1-10 years and/or fine of up to $7500 for 3rd or subsequent felony DUI/
The mistake in the paper was that the article stated that the penalty for Aggravated DUI was the same as a third time felony. The penalty for a third time felony is 1-10 years in the state penitentiary and/or up to a $7500.00 fine. This is incorrect.
Aggravated DUI is cover under Title 47 Section 11-902 of the Oklahoma Statutes and is as follows:
"D. Any person who is convicted of a violation of driving under the influence with a blood or breath alcohol concentration of fifteen-hundredths (0.15) or more pursuant to this section shall be deemed guilty of aggravated driving under the influence. A person convicted of aggravated driving under the influence shall participate in an assessment and evaluation by an assessment agency or assessment personnel certified by the Department of Mental Health and Substance Abuse Services pursuant to Section 3-460 of Title 43A of the Oklahoma Statutes and shall comply with all recommendations for treatment. Such person shall be sentenced to not less than one (1) year of supervision and periodic testing at the defendant’s expense, four hundred eighty (480) hours of community service, and an ignition interlock device for a minimum of thirty (30) days. Nothing in this subsection shall preclude the defendant from being charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C of this section."
As you can see, the Aggravated DUI language just adds additional requirements but not change the standard punishment range which for District Court cases is 10 days to one year and/or a fine up to $1000. for misdeameanor cases, 1-5 years and/or a fine of up to $2500 for first felony DUI, 1-7 years and/or fine of up to $5000 for 2nd felony, and 1-10 years and/or fine of up to $7500 for 3rd or subsequent felony DUI/
Oklahoma DUI License Suspensions
Length Of Time For Oklahoma Driver’s License DUI Suspensions.
If you are arrested for an Oklahoma DUI (driving under the influence) or APC (actual physical control), the Oklahoma Department of Public Safety (DPS) will attempt to suspend your Oklahoma driving privileges for a period of 180 days if you have not had any prior license suspensions within the previous ten years.
If you have had a previous driver’s license suspension within the previous ten years then the license suspension will be for a period of one year. If it is your third license suspension within ten years, the license suspension will be for a period of three years.
There is no such thing as a work permit in Oklahoma. It is possible to receive modified driving privileges if you only have a 180 day license suspension. This modification requires the installation of an ignition interlock device on your vehicle and can allow for driving 24 hours a day/seven days a week as long as in a vehicle with the ignition interlock device.
A CDL (commercial driver’s license) may not be modified. However, under certain circumstances, you may be allowed to drive company vehicles with an ignition interlock device.
One year and three year revocations may not be modified. The only way to keep driving is to request the hearing timely, win the DPS hearing, and avoid a conviction on the criminal charge. This is possible and Bruce and I have done this numerous times. Contact us for more information.
If you are arrested for an Oklahoma DUI (driving under the influence) or APC (actual physical control), the Oklahoma Department of Public Safety (DPS) will attempt to suspend your Oklahoma driving privileges for a period of 180 days if you have not had any prior license suspensions within the previous ten years.
If you have had a previous driver’s license suspension within the previous ten years then the license suspension will be for a period of one year. If it is your third license suspension within ten years, the license suspension will be for a period of three years.
There is no such thing as a work permit in Oklahoma. It is possible to receive modified driving privileges if you only have a 180 day license suspension. This modification requires the installation of an ignition interlock device on your vehicle and can allow for driving 24 hours a day/seven days a week as long as in a vehicle with the ignition interlock device.
A CDL (commercial driver’s license) may not be modified. However, under certain circumstances, you may be allowed to drive company vehicles with an ignition interlock device.
One year and three year revocations may not be modified. The only way to keep driving is to request the hearing timely, win the DPS hearing, and avoid a conviction on the criminal charge. This is possible and Bruce and I have done this numerous times. Contact us for more information.
Sunday, May 3, 2009
"DUI" ATTORNEY
John had a very good post about the DUI "Specialist".
It makes me shudder when I hear an attorney refer to a case as a "Simple DUI". That says
he does not plan to develop the case, look for weaknesses or defenses--he is going to take the money and quickly do some paper work.
Currently in Oklahoma it takes approximately 4 months to handle a DUI case properly. This is not a 'simple' DUI; it is a case that is being properly developed and defended.
I would suggest you look for the following things in deciding if someone is truly a DUI attorney or an attorney who just wants to make a quick buck from a DUI--there is a big difference:
It makes me shudder when I hear an attorney refer to a case as a "Simple DUI". That says
he does not plan to develop the case, look for weaknesses or defenses--he is going to take the money and quickly do some paper work.
Currently in Oklahoma it takes approximately 4 months to handle a DUI case properly. This is not a 'simple' DUI; it is a case that is being properly developed and defended.
I would suggest you look for the following things in deciding if someone is truly a DUI attorney or an attorney who just wants to make a quick buck from a DUI--there is a big difference:
- Will they meet you at the courthouse or interview over the phone rather than requiring a personal interview in their office?
- How many books have they authored specific to DUI?
- Are the trained as SFST (field sobriety) practitioners and Instructors?
- Have the taught SFST classes?
- Are they DRE (drugs) trained?
- Are they certified by the State BOT to operate and maintain the Intoxilyzer?
- Are they trained to operate the Intoxilyzer 8000?
- How many Intoxilyer 5000's do they own?
- How many Intoxliyer 8000's do they own?
- How many national DUI specific seminars do they attend annually?
- Have they taught other attorneys nationally regarding DUI defense?
- Have they taught Oklahoma Judges about DUI Defense?
- Have they taught police officers in CLEET academy's?
- Were they the first Oklahoma lawyers recognized as Super Lawyers and have they continued to be recognized for multiple years?
- Are they Fellows in the Litigation Counsel of America?
- Have they attended specialized training regarding the HGN test as it relates to eye movement and muscle imbalance?
- Have they attended multiple blood courses including Lab evaluations?
- Have they been trained to actually operate the GC-MS lab machine and had experience doing so?
These are a few of the items that will help distinguish the professional DUI Attorney from the opportunistic pretenders.
Saturday, May 2, 2009
Subsequent DUIs
Occasionally, citizens arrested for DUI are also arrested for driving under suspension. When explaining the importance of requesting an Administrative Hearing with the Department of Public Safety, the client will tell me that it doesn't matter because they are currently suspending and they don't think that there is any reason to fight the new driver's license suspension.
It is these cases where it is especially important to fight the suspension. If the client is suspended, a further suspension will be tacked on to the current suspension. If the client is on a 180 suspension from a previous DUI, then the new suspension period will be for ONE YEAR and is NOT modifiable. If the client is on a one year suspension, then the new suspension will be for THREE YEARS and is NOT midifiable. It is important to fight the license suspension EVERY time.
It is these cases where it is especially important to fight the suspension. If the client is suspended, a further suspension will be tacked on to the current suspension. If the client is on a 180 suspension from a previous DUI, then the new suspension period will be for ONE YEAR and is NOT modifiable. If the client is on a one year suspension, then the new suspension will be for THREE YEARS and is NOT midifiable. It is important to fight the license suspension EVERY time.
Friday, May 1, 2009
DUI Specialists
Over the last year, Bruce and I have seen several new "DUI Attorneys" or "DUI Specialists" popping up on the internet. These are criminal attorneys who think that DUI cases are an easy way to make money. DUI cases are an easy way to make money if you just take the case and plea it at the first opportunity. These dump truck lawyers will mislead you as they are wanting to compete with the real DUI Lawyers that have taken the time and spent the money to educate themselves to protect their clients.
How can you protect yourself? Ask questions. Do you limit your practice to DUI defense? Are you certified to not only administer field sobriety tests but are you also an Instructor? Have you ever taught DUI defense to other lawyers? Have you written any books on the subject of DUI Defense? Do you own an Intoxilyzer 5000 and 8000? Have you attended any advance blood seminars? Have you ever visited a blood lab?
Anyone can put up a website and get a vanity DUI phone number. Anyone can join the National College for DUI Defense. If they are serious about DUI Defense, then they should have and currently be attending the College's Trial College held at Harvard each summer. Several of these new "DUI Attorneys" have never been to a regional or national DUI seminar.
This is one reason Bruce and I offer free consultations as we feel it is important that you have a comparision with real DUI lawyers that practice solely DUI defense. Even if you are considering another attorney, it is worth your time to schedule your free consultation so that you can rest assured that the attorney you hire is what he or she says they are. There is nothing to lose and you will receive your free copy of the Oklahoma DUI Survival Guide that Bruce and I co-authored. To schedule your free consultation, call John at 1-888-DUI-ARREST if in Oklahoma City/Western Oklahoma or Bruce at 1-877-DUI-EDGE if in Tulsa/Eastern Oklahoma.
How can you protect yourself? Ask questions. Do you limit your practice to DUI defense? Are you certified to not only administer field sobriety tests but are you also an Instructor? Have you ever taught DUI defense to other lawyers? Have you written any books on the subject of DUI Defense? Do you own an Intoxilyzer 5000 and 8000? Have you attended any advance blood seminars? Have you ever visited a blood lab?
Anyone can put up a website and get a vanity DUI phone number. Anyone can join the National College for DUI Defense. If they are serious about DUI Defense, then they should have and currently be attending the College's Trial College held at Harvard each summer. Several of these new "DUI Attorneys" have never been to a regional or national DUI seminar.
This is one reason Bruce and I offer free consultations as we feel it is important that you have a comparision with real DUI lawyers that practice solely DUI defense. Even if you are considering another attorney, it is worth your time to schedule your free consultation so that you can rest assured that the attorney you hire is what he or she says they are. There is nothing to lose and you will receive your free copy of the Oklahoma DUI Survival Guide that Bruce and I co-authored. To schedule your free consultation, call John at 1-888-DUI-ARREST if in Oklahoma City/Western Oklahoma or Bruce at 1-877-DUI-EDGE if in Tulsa/Eastern Oklahoma.
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