21 Ways to Beat
Your Oklahoma DUI Charges
By Glen R. Graham, Attorney at Law, Tulsa,
Oklahoma
918-583-4621
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 testing...is 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 you...an 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 high...by 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.
