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21 Ways to Beat Your Oklahoma DUI Charges

21 Ways to Beat Your Oklahoma DUI Charges
 By Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
There is no such thing as an open and shut Oklahoma DUI case   .   .   .   there just isn't.
And yet even assuming the allegations are true  .  .  .  which they are NOT  .  .  .  there are still a number of DUI defenses that could result in reduced or even dismissed DUI charges.  This is why is it always critical to consult with an experienced Oklahoma DUI defense attorney before making the decision to plead guilty.  Whether your case was in Tulsa or any surrounding city like Broken Arrow, Bixby, Glenpool, Owasso, Sand Springs, or Sapulpa, Oklahoma, the laws concerning DUI or drunk driving or APC in Oklahoma are the same and you only have 15 days to request a hearing on your driver's license which will then impose an automatic stay on the suspension of your license for about 6 months to a year or more.  If you fail to request a hearing within 15 days, then you face the possible suspension of your driver's license and additional penalties.  Always contact a lawyer within 15 days!

As one of the top Tulsa DUI defense lawyers Glen R. Graham explains, “sometimes people plead guilty to a dui  just because they don’t know about the defenses available.  It is my job to evaluate your case and inform you of those defenses.”

In this article, this Tulsa DUI defense lawyer will summarize 20 defenses that can help you beat your Oklahoma DUI charges.   If you have additional questions or would like to speak with this Tulsa Oklahoma DUI defense attorney, we invite you to contact us.

21 Ways to Beat Your Oklahoma DUI Charges

1.   Requesting a timely hearing on your driver’s license within 15 days of the date of your arrest is critical for you to prevent the suspension of your driver’s license.  This right is waived if not requested within 15 days of the date of your arrest.  By making a timely request you will obtain a temporary driver’s license for about 6 months to a year while awaiting the hearing on your driver’s license.  If you wait more than 15 days then the only way to obtain a temporary driver’s license, if you qualify, is to pay a fee to the department of public safety and to have installed in your motor vehicle a interlock device which costs about $80 dollars per month for six months to sometimes many years depending upon the facts of your case (if you qualify).

Note:  Refusing to take a DUI breath or blood test does not prove you are guilty of DUI.  It may be considered by a jury but it is NOT an automatic conviction.  You do have the right under the law to refuse to take a test.

2. Oklahoma DUI breath testing is subject to a wide variety of errors
Oklahoma DUI breath tests are subject to a wide range of errors.  These include (but are not limited to)
  • instrument malfunction,
  • improper handling by the police,
  • your physiological conditions (such as GERD or your diet, both of which are discussed below), and even
  • outside environmental factors (such as radio frequency interference, which is also described below).
While DUI breath testing is the most common way to measure one's BAC, it's not always an accurate one.  This is because of the fact that a DUI breath test doesn't directly measure the amount of alcohol in your blood.  It measures the amount of alcohol present in your breath and then converts that amount to determine the amount of alcohol in your blood.  As a result, DUI breath testing is susceptible to a variety of outside influences that can generate an erroneously high BAC reading.

3. Mouth alcohol can alter the accuracy of your Oklahoma DUI breath test
DUI breath testing instruments are designed to capture a sample of breath from your deep lung tissue (otherwise known as "alveolar air").  When residual alcohol lingers in the mouth...either because
  • dental work trapped small amounts of alcohol-soaked food in your teeth,
  • you burped or regurgitated, or
  • you suffer from GERD, acid reflux or heartburn (discussed below)...
the breath test instrument captures "mouth alcohol" rather than simply aveolar air.  As a result, mouth alcohol can trigger a falsely high BAC reading on an Oklahoma DUI breath test. 

4. Medical conditions such as GERD, acid reflux, and/or heartburn can contaminate your DUI breath test results
  • Gastroesophageal Reflux Disease (more commonly referred to as "GERD"),
  • acid reflux, and
  • heartburn
are all recognized medical conditions that create possible mouth alcohol situations.  This is because these conditions produce a flow of acid that travels from the stomach into the mouth.
When this occurs just prior to or during a DUI breath test, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure.  As a result,  GERD, acid reflux, and/or heartburn can cause a falsely high BAC on an Oklahoma DUI breath test. 

5. A low-carbohydrate, high-protein Atkins-style diet or conditions such as diabetes or hypoglycemia can trick a DUI breath test and result in a false high BAC
Self-imposed conditions such as Atkins-style diets and medical conditions such as diabetes and   hypoglycemia are actually capable of self-producing isopropyl alcohol.  This is because bodies that are deprived of carbohydrates turn to stored fat for energy.  This process produces ketones.  Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol.
The problem...with respect to DUI breath that most Oklahoma DUI breath testing instruments aren't sophisticated enough to distinguish between this self-produced isopropyl alcohol and ethyl alcohol (the type of alcohol that we drink).  As a result, Atkins-style diets or diabetes or hypoglycemia can trick a DUI breath testing instrument into producing a falsely high BAC. Similarly, diabetes can fool the breathalyzer and should be considered as a DUI defense.
6.  "Rising Blood Alcohol" can mean your BAC was higher when you took the test than when you were actually driving
Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system.  If, for example, you had just recently finished drinking...and were investigated for DUI shortly thereafter...your alcohol may not have reached its peak absorption rate.  When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result. 
This is because your BAC at the time of your blood or breath test is irrelevant...what is relevant is what your BAC is at the time of driving.  Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that's what your BAC was at the time of driving...particularly if you were "on the rise".
Prosecutors like to assume that everyone is beyond their peak absorption phase when they submit to Oklahoma DUI chemical testing.  We know, however, that this isn't always the case and that rising blood alcohol is a very legitimate DUI defense.  This "on the rise" defense applies to both DUI blood testing and DUI breath testing.

7. Oklahoma DUI blood testing does not necessarily offer accurate readings
There are a variety of factors that could taint the results of your DUI blood test results:
  • Blood fermentation,
  • improper storage of your blood sample, and
  • blood contamination
are just a few of the reasons why your blood tests results might not be accurate.  This is why we say that Oklahoma DUI blood testing is not fool proof. 
Depending on the circumstances surrounding the collection and storage of your DUI blood test, your Oklahoma DUI defense lawyer may be able to have your BAC results excluded from evidence.  If your BAC is suppressed, your charge must be dismissed.

8. Violations of Title 47  and/or of the Oklahoma Board of Tests can compromise your BAC results
Title 47  and  the Oklahoma Board of Tests sets forth the requirements for
  • collecting,
  • storing, and
  • analyzing
DUI chemical tests.  These regulations are very specific, and any violation of Oklahoma’s Title 47 or the Oklahoma Board of Tests rules can compromise your DUI BAC results.   .
This means that if, for example,
  • it's not a trained technician who draws your DUI blood sample, or
  • if the DUI breath testing instrument that you use hasn't been calibrated according to code,
your BAC could be excluded from evidence...or at the very least, its accuracy will be called into question.

9. If the officer didn't have probable cause to stop, detain, or arrest you for DUI, the evidence--and the case--may get thrown out of court
Before the police can
  • stop your car,
  • detain you to conduct a DUI investigation, or
  • arrest you for a Oklahoma DUI,
they must have a reasonable suspicion or reasonable belief that you are engaged in criminal activity. This reasonable belief is a legal standard known as probable cause.

If an officer doesn't have the probable cause necessary before engaging in any one of these stages, any evidence that is obtained as a result of that illegal procedure will be suppressed.  When a judge suppresses evidence, it means that the prosecution cannot use it against you.  As a result, evidence obtained without probable cause usually results in reduced or dismissed Oklahoma DUI charges. 

10. The officer didn't advise you of your Miranda rights
Despite common misunderstanding, Miranda rights aren't always required in a Oklahoma DUI arrest. They are, however required when (1) you have been arrested, and (2) the officer is conducting a custodial interrogation.  A "custodial interrogation" takes place when an officer asks you questions designed to solicit incriminating responses after you have been arrested.
If these conditions have both been satisfied, the officer must advise you of your Miranda rights or risk having any subsequent statements excluded from evidence.  Depending on the significance of those statements, their exclusion could result in reduced or dismissed DUI charges.

11. There are innocent explanations for physical signs and symptoms of DUI
Most likely, the officer will claim that you exhibited
  • red/watery eyes,
  • a flushed face,
  • slurred speech,
  • an unsteady gait, and
  • had the odor of an alcoholic beverage on your breath.
Whether or not this description is accurate, the fact is that none of these signs or symptoms necessarily means that you are DUI.
And even if you were drinking, these characteristics don't in and of themselves indicate that you were under the influence of alcohol and/or drugs.  Additionally, innocent explanations such as
  • fatigue,
  • allergies,
  • the sun,
  • physical injury,
  • illness...
can explain the physical signs and symptoms that are commonly associated with DUI.

12. Oklahoma field sobriety tests ("FSTs") aren't accurate indicators of alcohol and/or drug impairment
Even the most reliable Oklahoma field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment.   The three tests that have actual data to support their trustworthiness are only between 65-77% accurate at detecting impairment...and that's only if they are precisely administered and scored (which is rarely the case).
And just like the innocent explanations that can account for physical signs of impairment, these same explanations can explain poor performance on FSTs.  Additionally, factors such as
  • officer-induced intimidation,
  • bad weather conditions,
  • poor lighting,
  • uneven surface conditions, and
  • awkward footwear, such as boots, dress shoes or high heels
that have nothing to do with alcohol and/or drugs can cause an individual to "fail" his/her field sobriety tests.

13. DUI isn't the only explanation for bad driving
While the police like to think that all bad drivers must be DUI, we know this isn't the case.
  • Weaving,
  • speeding, and even
  • erratic driving
are often a result of inattention or distraction.  Maybe you were
  • eating,
  • trying to play a CD, or
  • trying to pick up something that dropped, or
  • distracted by your passengers.
The bottom line is that DUI isn't the only explanation for bad driving. The reality is that sober people exhibit moments of bad driving just as impaired drivers.

14. Just because your blood alcohol concentration (BAC) was over the legal limit doesn't mean you were necessarily DUI
Blood alcohol concentration (BAC) is affected by many different factors, not just the actual amount of alcohol in one's body.  These factors include (but are not limited to):
  • errors in Oklahoma DUI chemical testing equipment,
  • errors in obtaining your DUI blood, breath, or (when appropriate) urine sample,
  • your medical conditions, and
  • when you finished drinking alcohol.
Each of these factors can independently affect the accuracy of your BAC results, so don't let the number fool illegal BAC doesn't necessarily mean you are guilty of DUI.

15. There are inherent error rates with Oklahoma DUI chemical testing
Even assuming that all testing conditions are perfect...
  • the testing equipment has been properly maintained and calibrated, and
  • there aren't any physiological conditions that could adversely affect the test...
there is still an inherent error rate with Oklahoma DUI chemical testing.
Experts agree that Oklahoma DUI chemical testing has a +/- error rate of between 0.005-0.02%.  As a result, a Oklahoma DUI defense attorney can challenge BAC results that are between 0.08-0.10%, since they could be lower than the minimum 0.08% required by Vehicle Code 23152b driving with a BAC of at least 0.08%.

16. Oklahoma DUI sobriety checkpoints must adhere to specific legal requirements
If you were arrested at a DUI roadblock, there are a variety of issues that a Oklahoma criminal defense attorney will investigate. Oklahoma DUI sobriety checkpoints must adhere to very strict legal requirements . . . if they don't, you could be falsely arrested for DUI.
These legal requirements relate to the operation of the DUI checkpoint.  Some examples include (but are not limited to):
  • having supervising officers organize and oversee the checkpoint,
  • making sure that the field officers follow a predetermined formula for stopping cars, and
  • publicly advertising the DUI roadblock.
If/when these requirements aren't satisfied, a Oklahoma DUI defense attorney can effectively challenge your DUI arrest and subsequent charges.

17. Radio Frequency Interference (RFI) can contribute to a falsely high BAC result
Radio frequency interference ("RFI") can cause a Oklahoma DUI chemical blood or breath test to produce an erroneously high BAC.  This is because almost all electronic devices...such as those used to analyze DUI blood and breath samples...are susceptible to RFI or EFI (electromagnetic interference).
The electronic components in these instruments can be affected by nearby radio waves.  Radio transmission from
  • patrol cars,
  • the automatic door-unlocking devices found in crime labs,
  • cell phones,
  • microwaves,
  • fluorescent lights, etc...
these are just a few examples of the types of equipment that are capable of interfering with DUI blood and breath testing results.

18. If you're not exhibiting signs of mental impairment, chances are you aren't DUI
With respect to alcohol and/or drugs, there are two types of impairment:  mental impairment and physical impairment.  Most of the impairment that officers claim people exhibit during Oklahoma DUI investigations is physical.  Officers routinely testify that those arrested for drunk driving exhibit
  • an unsteady gait,
  • poor coordination,
  • red/watery eyes, and
  • slurred speech.
However, experts agree that alcohol and/or drug-related impairment always presents itself in the form of mental impairment first.  This means that if an officer testifies that you displayed physical but not mental impairment, your alleged impairment was unrelated to alcohol and/or drug use.  As a result, if you weren't exhibiting signs of mental impairment, you probably weren't DUI.

19. Your DUI BAC doesn't accurately reflect your level of impairment
If a significant discrepancy exists between your BAC and your alleged level of impairment, something is wrong.  This may be the case where you either (1) reportedly exhibited no impairment, or (2) exhibited even slight impairment, but your BAC was even as much as two or three times the legal limit.
When this type of situation occurs (sometimes referred to as a "disconnect" case), and your DUI BAC doesn't accurately reflect your alleged level of impairment, the evidence can't be trusted...something just doesn't add up.

20. You weren't driving
It isn't enough for the police to prove you were under the influence...the crime is driving under the influence.  If, for example,
  • you were involved in an accident and no one saw you driving the car, or
  • if the police found you when you were in your parked car,
then, it will be more difficult for the prosecution to prove one of the key elements of a DUI: that you drove.  If the D.A. can't prove that you were driving, you can't be convicted of an Oklahoma DUI.  The “no driving” DUI defense  should be considered anytime the police didn't actually see you operating the vehicle.  And finally...

21. Even if you were DUI, police misconduct may absolve you of your DUI charges
If you can demonstrate police misconduct, then your DUI charges may have to be dismissed  .  .  .  even if you were actually guilty of DUI.  This is because proper police procedures must be followed.  For example,
  • DUI police reports must be accurate,
  • Title 47 procedures must be complied with, and
  • courtroom testimony must be truthful.
If these (or any other) conditions are purposely manipulated, evidence that was illegally obtained or fabricated will be suppressed.  Depending on how severely this impacts the prosecutor's case, he/she may choose to reduce or even dismiss your charges.  

Disclaimer – contacting this attorney does not constitute the employment of this attorney until officially hired.  Each case is different and the facts and law applying to your case may be different in your jurisdiction.  Always, consult with a criminal defense attorney prior to making legal decisions.