Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and we’re talking today about DUIs, DWIs, and what Oklahoma calls actual physical control. These are all crimes that you could be facing if you engage in an activity including drinking and driving.

There is a huge misconception in this world about what is legal, and what is not legal. There’s no law that says you cannot have a drink, and then drive a car. The law says you cannot drive a car while impaired or under the influence of alcohol. What does that mean in application?

Well, real briefly, we have three different types of drunk-driving in Oklahoma. The first one is DWI. We don’t see a whole lot of DWI charges because it’s a very limited number of folks. DWI stands for driving while intoxicated, and it’s something less than DUI. It generally applies when your blood alcohol content 0.05 to 0.07. So, it’s less than the mandatory requirement for DUI which is a 0.08 blood alcohol content. But it’s something greater than, “I’ve had a drink, and I got in the car.”

So, DWI is the first charge that you might see when dealing with DUI charges in the state in Oklahoma. Although, it’s not applied as often, it is certainly a nice benefit for individuals who were charged with DUI, and the scientific evidence comes back and says maybe they weren’t. It carries pretty much the same range of punishment. The consequences for probation are pretty much the same.

So, we’ll kind of skip over DWI for those purposes, and talk about what most of us know to be drunk driving in Oklahoma. It’s called driving under the influence – DUI. Sometimes, referred to as a ‘dewey.’ DUI simply means that you are driving a vehicle under the influence of alcohol, law enforcement believes that either by scientific evidence, or subjective evidence of their observations, that you’re body is under the influence, and therefore, you’re not safe to drive.

The range of punishment for DUI in Oklahoma is very great. Much like some of our other charges, like possession of marijuana, and domestic violence that we’ve talked about in the past. Your first time DUI is almost always treated as a misdemeanor, unless it has some aggravating characteristic. So, most folks first-time DUI is a misdemeanor. The range of punishment is a mandatory 10 days in the county jail, up to a year, and up to a $1000 fine.

Many people think about DUIs and they realize that a lot of their friends and family members have them. It has a very morally unsound connotation. And judges are harsh on DUIs. And prosecutors are harsh on DUIs. And our legislature, as we speak right now, are trying to make DUI charges and convictions enhanceable so that people will be charge with felonies in a quicker, more efficient way. So, they can be very, very dangerous. They’re also one of the most common crimes we commit, and also one of the safest crimes to commit.

What you have to know, if you’ve been charged with a DUI, or you’re being arrested for a DUI, is how to interact with law enforcement, and what to expect moving forward. So, if you’re pulled over, and you’ve had a few drinks, and you know that the police officer’s going to ask you a serious of questions. My first advice to folks is you’re not require to answer any of their questions. You’re only required to give your driver’s license and insurance verification. And if you can find a polite, respectful way to decline other questions, that’s my first piece of advice.

You have a Fifth Amendment right to remain silent. I strongly encourage that you use it. And you can do it in a simple way as saying, “Officer, I do not wish to engage in consensual contact, and answer any of your questions at this time.” That sounds a lot easier said than done. We want to engage with law enforcement, and we want to answer their questions, and they know that. They’re banking on the fact that we’re going to be a little bit nervous. But, what you have to understand is that these questions are designed to elicit answers that give rise to arrest you for DUI. So, if you answer those questions, you are causing yourself more harm than good.

One of the that a law-enforcement officer will ask you to do if he believes that you’re driving under the influence of alcohol, is engage in field-sobriety tests. And you’re not required to engage in field-sobriety tests. And, in fact, I encourage most people not to do so. The tests are incredibly subjective. They’re set up for you to fail, and the officer’s observations, especially if you’re not recorded, and here in Oklahoma City most law-enforcement officers are not equipped with dash-cams or body-cams to be able record your actions. So, the evidence that’s going to be presented against you is simply the police officer’s interpretation of how well you followed those instructions. And usually, that is not to your benefit. So, I would encourage you to resist the urge to prove your sobriety by getting up and doing field-sobriety tests. Those tests are designed to make you look guilty, and have you arrested.

The next question everybody always asks is, “Do I blow, or do not blow, into the Breathalyzer machine?” And this is a very sensitive topic. And everybody asks drunk-driving lawyers this question all the time. If we represent people in DUIs, should I blow, or should I not blow? And, 10 years ago, the answer was if you think there’s a possibility that you might be DUI don’t blow. Because you’re giving them evidence to convict you criminally.

Now, a DUI charge has two elements to it. Not only do you have a criminal battle to fight – whether, or not you’re going to jail and paying $1000 fines for your actions. But, you also have a civil matter going on. And that’s through The Department of Public Safety. And The Department of Public Safety says that you do not have a right to drive a vehicle in the state of Oklahoma. You have the privilege to drive a vehicle in the state of Oklahoma. And they, with all of their incredible lobbying, expenses, have lobbied the legislature, and have really changed the way DUI laws are handled and how people give advice.

If you refuse to blow in a Breathalyzer, and law enforcement has suspected and accused you of DUI, your refusal to blow will result in the revocation of proceedings from The Department of Public Safety. Depending on your history, and if you’ve ever had DUIs in the past, how long you’ll be revoked, and how long you’ll be subjected to what we call a modified driver’s license, is determined based upon your priors. But a refusal’s going to revoke you for at least six months. And in order to get re-instated you will have to put a breathalyzer in your car for an additional 18 months. So, a refusal means two months of a breathalyzer in your car if we lose DPS hearings, and we don’t have any other issues to deal with there.

So, whether to blow, or not blow, only you know how much you’ve had to drink. If you know you are not above the legal limit of 0.08, then I would certainly encourage you to consider blowing for two reasons. Number one, it will give exculpatory evidence to you DUI charge, and we may be able to get it down to a DWI or complete dismissal. In the alternative, it keeps your driving privileges intact with The Department of Public Safety.

There are other ways that DUIs can go down. We could talk for hours about defending DUIs in Oklahoma, but we just have a limited amount of time. So, we’re going to move quickly to how you find yourself charged with a felony DUI. If you have been arrested, and entered a plea, and been convicted for a DUI within the last 10 years, your next DUI is very likely to be filed as a felony charge. So, you get one shot a misdemeanor, and if you pick up another one it’s very likely you’ll be dealing with a felony charge. The range of punishment there is one year to five years in The Department of Corrections, and an increased fine. Your second felony within 10 years carries 1 to 10 years in The Department of Corrections, and a $5000 fine. And your third felony DUI within 10 years carries up to 20 years in The Department of Corrections and up to a $5000 fine.

It is clearly obvious that the legislature is trying to discourage folks with chronic drinking problems from getting behind the wheel of the car. Not telling you not to drink. They’re telling you not to get behind the wheel of the car and put at risk the lives of everybody else on the road.

How else do you find yourself with felony charges with a DUI? One of the things we see more, and more often, is that the driver has a child in the car. If you have a child in the car, and you’re arrested for, suspected of, and charged with DUI, you can likely expect to get charged with child endangerment, as well. Which is a felony crime – carries up to four year in The Department of Corrections and up to a $5000 fine.

Another quick way to make an otherwise benign, simple DUI a felony is if you’re involved in an accident that results in personal injury of another person. That is problematic, and it is an enhancer, and depending on your priors, and facts and circumstances could give rise to felony charges. It could give rise to simply a misdemeanor charge of personal injury DUI which carries up to a year and up to a $2500 fine.

What happens if you are charged, and you go to court, and you decide to enter a plea. Well, Oklahoma laws are pretty specific. And each municipality kind of deals with these things in their own vein. But if we’re dealing strictly with state court, and that’s probably the best way to do it for these purposes, is upon a plea of guilty, or no contest, and a finding of guilt by a judge, whether we’re convicted of the DUI, or we’re placed on a simple deferred, Oklahoma law mandates that we do some things.

The first thing you’re going to have to do is a drug and alcohol...