Category: Criminal Defense

Felony Murder Rule in Oklahoma

Felony Murder Rule in Oklahoma

Oklahoma law allows one to be charged with first degree murder, if death results during the commission of certain felony (regardless of their intent). This is referred to as the “Felony Murder Rule”. This rule covers any person committing or attempting to commit the underlying felony, along with any accomplices. This concept is referred to as “the felony murder rule”.  

The Felony Murder Rule grew out of the following principle: one who is responsible for unintended death of another, during the perpetration or attempted commission of a felony, was guilty of murder. The threat posed by the commission of felonies warranted strict response and as a result, the threats serve as a justification for the harshness of the rule.

Felony Murder Rule in OklahomaThe expansion of what crimes constitute a felony have caused narrowing of the Felony Murder Rule in Oklahoma. Currently, the Felony Murder Rule attaches to the commission or attempted commission of the following crimes (See OUJI-CR 4-65):

[forcible rape]

[robbery with a dangerous weapon]

[kidnapping]

[escape from lawful custody]

[first-degree burglary/arson]

[murder of a person other than the deceased]

[shooting/discharge of a firearm/crossbow with intent to kill a person other than the deceased]

[intentional discharge of a firearm/[specify other deadly weapon] into a dwelling/(building used for business/public purposes)]

[unlawful distributing or dispensing of controlled dangerous substances]

[trafficking in illegal drugs]

There are two critical elements of felony murder: commission of a felony, and death to the victim as a consequence of the defendant’s conduct in committing that crime.

The Felony Murder Rule does not require that any particular intent or mental state be established in order to convict the defendant of felony-murder. In addition, all co-felons participating in the felony may be convicted of murder where the conduct of any one of the participants causes death in the commission of the crime.

The committee comments on the jury instruction for this crime illustrate how the rule has been narrowed. See OUJI-CR 4-93:

“Several points must be emphasized regarding the “any felony” language of section 701.8. First, the Oklahoma Court of Criminal Appeals announced in Barnett v. State, 2011 OK CR 28, ¶¶ 10-15, 32, 263 P.3d 959, 963-64, that it would no longer require the precedent felony to be an independent crime that was not included within the resulting homicide, and the Court abandoned the merger doctrine, which previously had restricted the crime of second degree felony murder.

In addition, the “any felony” language raises the specter of a forger being convicted of murder if he accidentally trips his victim and causes the victim to strike his head and suffer death. Many jurisdictions have circumscribed the scope of the “any felony” rule by judicial decision. See, e.g., People v. Washington, 62 Cal. 2d 777, 402 P.2d 130 (1965); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). The restriction of the felony-murder rule to those crimes which evince some potential for peril to others is more in accordance with the common law development of the doctrine than it is an unfettered interpretation of the “any felony” provision. Indeed, at common law the felony-murder rule was in fact more narrow and less arbitrary because, at the time the doctrine developed, the few existing felonies were themselves punishable by death. W. LaFave & A. Scott, Criminal Law§ 71, at 545-48 (1972).

The Oklahoma Court of Criminal Appeals has afforded explicit recognition to this limiting principle. In Wade v. State, 1978 OK CR 77, 581 P.2d 914, the defendant committed the felony of possession of a loaded pistol in an establishment where beer or alcoholic beverages were consumed, in contravention of 21 O.S. Supp. 1976, §§ 1272.1 – 1272.2. In affirming the defendant’s conviction for felony-murder in connection with the homicide of a woman by the defendant, the Court articulated a requirement which must link the underlying felony to the homicide: “The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.” Id. ¶ 4, 581 P.2d at 916.

Thus, the Court has adopted an approach to the question of whether the particular felony at issue might form the basis for a felony-murder charge that requires an examination of the circumstances in which the crime was committed, as well as of the crime itself. As an abstract proposition, some felonies, such as burglary or robbery, are inherently dangerous to life, while others, such as larceny or false pretenses, are not. But the facts of the particular case, including the circumstances under which the felony was perpetrated, must be examined in order to determine whether even a nonperilous felony is committed in such a way as to create a potential danger to life.

The determination of the inherent or potential peril to human life engendered by the defendant’s conduct must be made by the trial judge. Should he find the felony-murder rule inappropriate as applied to a particular felony, he should not instruct on it. Should he find the felony-murder rule applicable, he must determine which felony or felonies to name and define in the instruction.”

See OUJI-CR 4-93 here. http://www.okcca.net/online/oujis/oujisrvr.jsp?oc=OUJI-CR%204-93

If you have questions regarding the Felony Murder Rule in Oklahoma, or any other crime,  contact our Tulsa criminal defense attorneys at (918)592-1144 for a consultation. Our firm has been protecting the rights of Oklahomans for over 30 years.

 

Oklahoma left lane law - Tulsa Traffic Ticket Attorneys

Oklahoma Left Lane Law; Effective November 1 2017

Oklahoma Left Lane Law

Effective November 1, 2017, a new left lane restriction for vehicles driven on a two lane divided highways was put into place. The new restriction states that a vehicle may not be driven in the left lane, except when overtaking and passing another vehicle, other than in situations where traffic conditions or road configurations require the use of the left-hand lane in order to maintain safe traffic conditions.

Violations of the left lane restriction may result in a ticket, which are about $235, according to the Tulsa World

The new law was added to the Oklahoma Statute at 47 O.S. 2011, Section 11-309. The text of the new law is as follows:

[5] Upon a roadway which is divided into four or more lanes, a vehicle shall not impede the normal flow of traffic by driving in the left lane shall not be driven in the left lane except when overtaking and passing another vehicle; provided, however, this paragraph shall not prohibit driving in a the left lane other than the right-hand lane when traffic conditions or, flow, or both, or road configuration, such as the potential of merging traffic, require the use of lanes other than the right-hand the left lane to maintain safe traffic conditions.

The statute can be viewed here

The Tulsa Police Department recently issued a statement regarding this law:

“The Tulsa Police Department has been inundated with questions about the amended Oklahoma left lane law, which  was primarily intended for highway application. We would like to clear up some confusion on the law and clarify what actions can be made by Tulsa Police Officers.

Municipal Officers cannot write citations for state traffic laws when there is not a municipal ordinance mirroring the same law. If need be, municipal officers can enforce the state law by an arrest but those incidences would be rare.

The City of Tulsa does have a city ordinance that is similar the State’s left lane law. The ordinance is Title 37 Section 640 A which states “Whenever any two-lane street has been divided into marked lanes for traffic, the driver of a vehicle shall drive in the lane nearest the right-hand edge or curb of the roadway when such lane is available for travel, except when overtaking another vehicle or in preparation for a left turn.”

This ordinance has been enforceable for several years although it is rarely cited by Tulsa Police Officers. In the last three years this citation has been written 89 times in the City of Tulsa. 2015 – 30, 2016 – 33 and 2017 (YTD) – 26 citations. Due to the natural flow of traffic on city streets the application of this ordinance is limited.”

The statement was reported here.

If you have questions regarding this law, or have questions regarding traffic violations in Tulsa, contact our office for a consultation. As we have expressed in prior blog posts, it is important to understand the consequences of a ticket prior to paying the fine. 

Underage DUI in Oklahoma

Underage DUI in Oklahoma

Underage DUI in Oklahoma

Similar to a DUI charged against an adult, an underage DUI criminalizes the actions of a driver who operates or is in actual physical control of a motor vehicle while intoxicated. However, underage DUI by someone under 21 involves two violations: illegal consumption/possession of alcohol and driving while intoxicated. As the State would like to deter such behavior, violations involving underage DUI in Oklahoma are subject to strict laws and penalties.

Much like driving under the influence, underage drinking and driving is a significant problem in the United States. Motor vehicle crashes are the leading cause of death among youth ages 15 to 20. The rate of fatal crashes among alcohol-involved drivers between 16 and 20 years old is more than twice the rate for alcohol-involved drivers 21 and older

Zero Tolerance Laws

In order to reduce the number of underage drivers involved in alcohol-related crashes, Oklahoma joined many other states in passing “zero tolerance” laws which make it illegal for an underage driver to operate a vehicle after consuming any amount of alcohol. These zero tolerance laws derive from the Federal Zero Tolerance Bill, which was enacted to discourage drunk driving among minors. The bill requires that all states make it illegal for a minor to drive with a blood alcohol level of .02 percent or higher. A summary of the Federal Zero Tolerance Policy can be viewed here. http://dui.findlaw.com/dui-laws-resources/underage-dui-zero-tolerance-laws.html

Underage DUI in Oklahoma Statute; Title 47 § 11-906

  1. It is unlawful, and punishable as provided in subsection B of this section, for any person under twenty-one (21) years of age to drive, operate, or be in actual physical control of a motor vehicle within this state who:
  2. Has any measurable quantity of alcohol in the person’s blood or breath at the time of a test administered within two (2) hours after an arrest of the person;
  3. Exhibits evidence of being under the influence of any other intoxicating substance as shown by analysis of a specimen of the person’s blood, breath, saliva, or urine in accordance with the provisions of Sections 752 and 759 of this title; or
  4. Exhibits evidence of the combined influence of alcohol and any other intoxicating substance.

 

  1. Any person under twenty-one (21) years of age who violates any provision of this section shall be subject to the seizure of the driver license of that person at the time of arrest or detention and the person, upon conviction, shall be guilty of operating or being in actual physical control of a motor vehicle while under the influence while under age and shall be punished:
  1. For a first conviction, by:
    1. a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00),
    2. assignment to and completion of twenty (20) hours of community service,
    3. requiring the person to attend and complete a treatment program, or
    4. any combination of fine, community service, or treatment;
  2. Upon a second conviction, by:
    1. assignment to and completion of not less than two hundred forty (240) hours of community service, and
    2. the requirement, after the conclusion of the mandatory revocation period, to install an ignition interlock device or devices, as provided by subparagraph n of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes, for a period of not less than thirty (30) days.
    3. In addition, a second conviction may be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by requiring the person to attend and complete a treatment program, as recommended by the assessment required pursuant to subparagraph c of paragraph 2 of subsection D of this section, or by both; or
  3. Upon a third or subsequent conviction, by:
    1. assignment to and completion of not less than four hundred eighty (480) hours of community service, and
    2. the requirement, after the conclusion of the mandatory revocation period, to install an ignition interlock device or devices, as provided by subparagraph n of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes, for a period of not less than thirty (30) days.
    3. In addition, a third or subsequent conviction may be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Thousand Dollars ($2,000.00), or by requiring the person to attend and complete a treatment program, as recommended by the assessment required pursuant to subparagraph c of paragraph 2 of subsection D of this section, or by both.

 

  1. The court may assess additional community service hours in lieu of any fine specified in this section.
  2. In addition to any penalty or condition imposed pursuant to the provisions of this section, the person shall be subject to:
  1. Upon a first conviction:
    1. the cancellation or denial of driving privileges as ordered by the court pursuant to subsection B of Section 6-107.1 of this title,
    2. the mandatory revocation of driving privileges pursuant to Section 6-205.1, 753 or 754 of this title, which revocation period may be modified as provided by law, and
    3. the continued installation of an ignition interlock device or devices, at the expense of the person, as provided in subsection D of Section 6-212.3 of this title, after the mandatory period of cancellation, denial or revocation for a period as provided in paragraph 1 of subsection A of Section 6-212.3 of this title;
  2. Upon a second conviction:
    1. the cancellation or denial of driving privileges, as ordered by the court pursuant to subsection B of Section 6-107.2 of this title,
    2. the mandatory revocation of driving privileges pursuant to Section 6-205.1, 753 or 754 of this title, which period may be modified as provided by law,
    3. an assessment of the person’s degree of alcohol abuse, in the same manner as prescribed in subsection H of Section 11-902 of this title, which may result in treatment as deemed appropriate by the court, and
    4. the continued installation of an ignition interlock device or devices, at the expense of the person, as provided in subsection D of Section 6-212.3 of this title, after the mandatory period of cancellation, denial or revocation for a period as provided in paragraph 2 of subsection A of Section 6-212.3 of this title; and
  3. Upon a third or subsequent conviction:
    1. the cancellation or denial of driving privileges as ordered by the court pursuant to subsection B of Section 6-107.2 of this title,
    2. the mandatory revocation of driving privileges pursuant to Section 6-205.1, 753 or 754 of this title, which period may be modified as provided by law,
    3. an assessment of the person’s degree of alcohol abuse, in the same manner as prescribed in subsection H of Section 11-902 of this title, which may result in treatment as deemed appropriate by the court, and
    4. the continued installation of an ignition interlock device or devices, at the expense of the person, as provided in subsection D of Section 6-212.3 of this title, after the mandatory period of cancellation, denial, or revocation for a period as provided in paragraph 3 of subsection A of Section 6-212.3 of this title.

 

  1. Nothing in this section shall be construed to prohibit the filing of charges pursuant to Section 761 or 11-902 of this title when the facts warrant.

 

  1. As used in this section:
  2. The term “conviction” includes a juvenile delinquency adjudication by a court; and
  3. The term “revocation” includes the cancellation or denial of driving privileges by the Department.

If you have questions regarding Underage DUI in Oklahoma, contact one of our Tulsa DUI lawyers for a consultation.

Oklahoma DUI law amendment 2017- Refusing a Breathalyzer Test

Oklahoma DUI law amendment 2017; Refusing a Breathalyzer Test

Last week, we discussed SB 643 also known as the Impaired Driving Elimination Act 2, which was signed into law in June and will become effective November 1, 2017. We discussed that, among other changes, the law’s most substantive changes are (1) creation of the Impaired Driver Accountability Program and (2) the criminalization of refusing to take a breathalyzer test. This week, we will focus on the new law’s impact on refusing a breath test following an arrest for DUI.

The Act adds the following language the DUI statute:

Oklahoma DUI law amendment 2017- Refusing a Breathalyzer Test“It shall be a misdemeanor, punishable by a fine of not more than One Thousand Dollars ($1,000.00) and not more than ten (10) days in jail, or by both fine and imprisonment, for a conscious person under arrest for driving or being in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings within this state to refuse to submit to a test of the person’s breath for the purpose of determining the alcohol concentration thereof.”

In all, fifty states, an “implied consent” law exists when it comes to administering breath tests, because states consider driving a privilege and not a right. While there have always been stiff penalties for refusing to submit to testing under the implied consent laws in Oklahoma, it has not been a separate criminal offense. The new law making refusal a misdemeanor is in line with a Supreme Court decision last year. In Birchfield v. North Dakota, 579 S.Ct. __ (2016), individuals challenged their respective states’ statutes criminalizing the refusal to submit to a blood alcohol test. The Supreme Court upheld a State right to criminalize such a refusal–applying the “search incident to lawful arrest” exception to the Fourth Amendment’s warrant requirement. The Court reasoned that breath tests involve minimal physical intrusion. These tests reveal a limited amount of information (the amount of alcohol on an individual’s breath), are used to find something that is routinely exposed to the public, and participation in a breath test unlikely will cause greater embarrassment than beyond the arrest itself. In light of this Supreme Court decision, the new state law is likely to pass constitutional muster-at least as it relates to making refusal to submit to breath testing a misdemeanor.

However, the law attempts to remove the role of DPS and the current ability to challenge the administrative revocation/suspension of an individual’s license following an arrest for DUI. A constitutional challenge has already been filed against the bill, alleging the law will remove administrative safeguards designed to protect individuals who have be wrongfully accused.  

The final version of the bill can be viewed here

This blog post is not intended to be a full summary of the new Oklahoma DUI law. If you have questions regarding the new law, contact one of our Tulsa DUI lawyers for a consultation regarding your specific facts and circumstances.

Oklahoma DUI Law Amendment 2017; Interlock Devices

Oklahoma DUI Law Amendment 2017; Interlock Devices

Oklahoma DUI Law Amendment 2017; Interlock Devices

In June 2017, Governor Mary Fallin signed SB 643, amending the DUI law in Oklahoma. The changes in the bill, referred to as the “Impaired Driving Elimination Act 2” will go into effect on November 1, 2017. There are many small changes to the DUI law contained in the Act, but two very substantive changes will go into effect: (1)Requirement of interlock devices/creation of the Department of Public Safety Impaired Driver Accountability Program, and (2)criminalization of refusing to take a breathalyzer test. This blog post will focus on the requirement of interlock devices and the creation of the Department of Public Safety Impaired Driver Accountability Program.

Interlock devices are not new in Oklahoma. Ignition interlock systems are devices used to prevent a vehicle from starting if the driver has been drinking alcohol. The device uses a built-in breathalyzer and set to a pre-programmed amount. If the driver blows into the device and exceeds that amount, the interlock locks the vehicle’s ignition. The cost of an Interlock device can quickly add up with install fees, monthly monitoring, etc. The current law requires interlock devices for first time offenders when he/she has a blood alcohol concentration of .15 or more (aggravated driving under the influence).[1] The current law also provides provisions for more severe interlock restrictions for subsequent DUI offenses. However, the new law effective November 1, 2017 will require interlock devices for conviction (or plea) of all DUI offenses.

Offenders will have the option of entering the Impaired Driver Accountability Program, or challenging the DUI charge through the court process. The IDAP program requires strict compliance with rules, but will allow a clean record following completion of the program. Challenging the DUI charge through the court process could result in longer suspensions.

The final version of the bill can be viewed here.

Oklahoma DUI Law Amendment 2017; Interlock DevicesOklahoma DUI Law Amendment 2017; Interlock Devices

In the Bill Summary prepared on May 24, 2017, the legislature stated the following regarding the Act:

  • Stipulates DPS create an Impaired Driver Accountability Program (IDAP)
  • A $200 fee is established per participant.
  • The measure establishes a fee for a restricted driver’s license at $50 in addition to the IDAP program fee of $200 which will be deposited into the Public Safety Restricted Revolving (245) Fund.
  • Creates the following schedule of penalties relating to the ignition interlock device:
Crime Penalty
Knowingly allowing a person required to use an interlock device to drive a vehicle without one A misdemeanor with a fine up to $500 and/or up to 6 months in county jail
Willfully attempting to interfere with the proper functioning of the interlock device A misdemeanor with a fine up to $500 and/or up to 6 months in county jail
A person who is required to drive a vehicle with an interlock device who does not (with the exception of an employer’s vehicle) A misdemeanor with a fine up to $500 and/or up to 6 months in county jail

This blog post is not intended to be a full summary of the new Oklahoma DUI law. If you have questions regarding the new law, contact one of our Tulsa DUI lawyers for a consultation regarding your specific facts and circumstances. Monroe & Keele, P.C. has defended the rights of Oklahomans for over 30 years. Contact our Tulsa criminal defense attorneys today.

[1] 47 §11-902 (D)

Federal vs State Jurisdiction; Federal Criminal Defense Lawyer Oklahoma

Federal vs State Jurisdiction; Federal Criminal Defense Lawyer Oklahoma

Federal vs State Jurisdiction; Federal Criminal Defense Lawyer Oklahoma

What Makes a Crime Federal Rather Than State?

There are two sets of courts for criminal prosecutions in Oklahoma: state and federal courts. While the courts share power, each has its own system, courthouse, prosecutors, and judges. Federal judges are nominated by the president (approved by the senate), and serve in that capacity for life. Federal prosecutors are skilled and have more resources at their disposal than their state counterparts. Facing charges in federal court is significantly more serious than any criminal offense filed in state court, both in how the case will be tried and in the level of penalties that can be imposed. In a report issued United States Attorneys’ Annual Statistical Report released last year, detailing the convictions during FY2012, 97% of all federal offenders pleaded guilty.

You may ask, what makes a crime federal rather than state? In short, federal crimes are those that break the federal legal code and state crimes break state laws. However, in a large number of cases, there is concurrent jurisdiction for the same crime, meaning the charges can be brought in either court. For example, possession of marijuana is a violation of both Oklahoma state and federal law. Technically, it can be charged in Oklahoma state court or federal court. However, you will not see many federal agencies pursuing investigations or arrests of a small amount of marijuana. Drug trafficking cases with large quantities of illegal drugs account for a significant percentage of federal cases, and defendants prosecuted federally for drug cases account for a large portion of inmates in federal correctional facilities. Of the 84,360 federal criminal cases in which the offender was sentenced in fiscal year 2012, 30% were for drugs.

One other component to most federal criminal prosecutions is the requirement that the crime in question impact interstate commerce. Congress is granted the broad authority to regulate interstate commerce, which includes criminal activities that have a “substantial impact” on interstate commerce. While there has been a rapid expansion of what substantially impacts interstate commerce over the last fifty years, the Supreme Court did put a limit on Congress’ use of the commerce clause in the United States v. Lopez. The Court held that Congress overreached in passing the Gun-Free School Zones Act because the possession of a gun near a school zone was a local matter.

Federal vs State Jurisdiction; Federal Criminal Defense Lawyer Oklahoma

If you have questions regarding federal or state charges in Oklahoma,  contact our Tulsa criminal defense attorneys by phone at (918)592-1144 for a consultation.

Oklahoma Civil Forfeiture; Drugs Found in Close Proximity to Firearms

Oklahoma Civil Forfeiture; Drugs Found in Close Proximity to Firearms

Oklahoma Civil Forfeiture; Drugs Found in Close Proximity to Firearms

In this post, we will examine the legal standard involved in civil forfeiture cases when drugs are found in close proximity to firearms. Civil Forfeiture is a legal process through which the state or federal government first confiscates and then seeks to permanently seize private property from an individual. This private property can be cash, bank accounts, real estate, vehicles, or other personal property.  Civil forfeiture actions in Oklahoma are most often connected to drug-related arrests under the Uniform Controlled Substances Act. These civil forfeiture statutes allow the government to seize property when there is a connection between the property and the illegal activity or substance.

Oklahoma Civil Forfeiture

Oklahoma statutes authorize forfeiture of weapons when they are “available for use in any manner to facilitate a violation of the Uniform Controlled Dangerous Substances Act.”[1] The relevant question that follows: what does it mean to “facilitate a violation”? In order to examine this issue, we will examine a case that involved drugs found in close proximity to firearms.

In State ex rel. Redman v. $122.44, Joe Harrell, Jr. was arrested and convicted of possessing some 22 ounces of packaged marijuana with the intent to distribute.[2] Inside his residence, a safe was found containing, among other things, 17 firearms and .09 grams of marijuana residue. The state sought to seize the firearms under the statute referenced above. At the trial, the state sought to prove the firearms were used to “facilitate a violation” of the Controlled Substances Act through testimony from the officer  “that the safe was being used to store marijuana, and “if you’re selling marijuana and you’re getting it out of a safe, there are weapons there [that] could be, you know, intimidating [to] make sure you don’t get ripped off.” [3]  The trial court found in favor of the state. Mr. Harrell appealed and the Oklahoma Court of Civil Appeals affirmed the decision in favor of the state. It was appealed to the Supreme Court, where the decision was reversed because the state failed to prove the connection between the property and the offense. The Court held the State must demonstrate that the connection between the property sought in forfeiture and the underlying offense is more than incidental or fortuitous. It noted that the mere presence of an item with drugs and a dangerous capability of the item to protect the drugs are not alone sufficient to establish the nexus necessary for forfeiture. The Court stated :”Not only did the State fail to establish the basis for an inference that the weapons in the safe ‘facilitated’ Mr. Harrell’s possession of marijuana with intent to distribute, the opinion testimony of the officer as well as the conclusions of the trial court and the Court of Civil Appeals, were all based on the erroneous assumption that Mr. Harrell sold marijuana at his residence.”

In the case discussed above, the Oklahoma Supreme Court found there was not a sufficient connection between the firearms and drugs in order to justify forfeiture of the firearms. However, whether the property is being used to facilitate a criminal act will be a very fact specific analysis and the outcome may vary based on just a relatively small difference in facts. If you have questions regarding civil forfeiture in Oklahoma, contact our office to speak with one of our Tulsa civil rights attorneys. You can contact us by phone at (918)592-1144 or contact us online.

[1] 63 O.S. Supp.2008 § 2-503(A)(9)

[2] State ex rel. Redman v. $122.44, 231 P. 3d 1150 – Okla: Supreme Court 2010

[3]  Id.

Oklahoma CDL Violations - Tulsa CDL Violation Attorneys

DUI Series; Oklahoma CDL Violations

A commercial driver’s license (CDL) is a special license issued by the State of Oklahoma that allows an individual to drive certain types of vehicles. Drivers are required to have a CDL in order to drive vehicles over a certain weight, buses, and vehicles containing hazardous materials. In addition to passing certain medical requirements, an individual must pass a comprehensive written test and road test in order to earn the Oklahoma CDL.There are many federal and state laws applicable to commercial driver’s licenses: vehicle and trailer loading, record keeping, and many other CDL specific laws is necessary in order to keep the CDL. The rules are more stringent than rules for automobile drivers, in many cases. When an individual operates a commercial motor vehicle, he or she is giving consent to alcohol testing if pulled over. This law applies to everyone, residents and nonresidents alike. Refusing to take the alcohol testing upon request by a law enforcement officer will result in an automatic revocation of an individual’s driving privilege, even if he or she has not been drinking. The law applies to an individual who holds a CDL-even if the individual is operating his or her own personal vehicle or while operating a commercial vehicle. Under Oklahoma law, it is illegal to operate a commercial motor vehicle (CMV) with a Blood Alcohol Concentration (BAC) of 0.04 percent or more.

In addition, there are several other violations that could result in revocation of your CDL.

  • Driving a CMV under the influence of alcohol.
  • Driving a CMV while under the influence of a controlled substance.
  • Leaving the scene of an accident involving a CMV.
  • Committing a felony involving the use of a CMV.
  • Driving a CMV when the CDL is suspended.
  • Causing a fatality through negligent operation of a CMV.

Any of the following violations will result in the individual losing his/her license and will be suspended as follows:

  • First offense — One Year
  • Second offense — Lifetime

An individual will also lose his/her CDL for at least three (3) years, if the offense occurs while operating a CMV carrying hazardous materials. You will lose your CDL for lifetime if you use a CMV to commit a felony involving controlled substances. Moreover, if you have any detectable amount of alcohol under .04%, you will be put out-of-service for twenty-four hours.[1]

In Oklahoma, any individual charged with DUI, DWI, or APC charge will not receive a work permit or a hardship CDL. You can request an administrative hearing within fifteen days of the date of arrest. If timely requested, you may be able to obtain a “modified” operator driver’s license. However, this is not a CDL.

Any DUI related CDL violation can adversely impact your freedom and future. The best course of action would be to enlist the help of qualified Tulsa DUI Lawyers.  Contact our Tulsa DUI  lawyers by phone at (918)592-1144 or online for a consultation. Our attorneys have been representing Oklahomans for more than 30 years.

[1] Commercial Driver License Manual, Federal Motor Carrier Safety Administration, 1.3.2 (2005)

Oklahoma CDL Violations; Serious Traffic Violations

Oklahoma CDL Violations; Serious Traffic Violations

Oklahoma CDL Violations; Serious Traffic Violations

Serious Traffic Violations

In addition to the stiff penalties related to DUI when a person holds a CDL (link to prior blog), there are also serious traffic violations that may result in disqualification or loss of a CDL.[1] “Serious traffic violations” are the following:

  • Excessive speeding (15 mph or more above the posted limit).
  • Reckless driving.
  • Improper or erratic lane changes.
  • Following a vehicle too closely.
  • Traffic offenses committed in a CMV in connection with fatal traffic accidents.
  • Driving a CMV without obtaining a CDL or having a CDL in the driver’s possession.
  • Driving a CMV without the proper class of CDL and/or endorsements.
  • Using an electronic communications device to read or send a text messages while driving a commercial motor vehicle.
  • Using a hand held cellular telephone while driving a commercial vehicle.

Penalties include:

  • First Offense: No loss of license.
  • Second offense within a 3-year period: For at least 60 days, if you have committed two serious traffic violations within a three-year period involving a CMV.
  • Third Offense within a 3-year period: For at least 120 days, for three or more serious traffic violations within a 3-year period involving a CMV.[2]

Traffic Violations in Your Personal Vehicle

The Motor Carrier Safety Improvement Act (MCSIA) of 1999 requires that a CDL holder be disqualified from operating a commercial motor vehicle if the CDL holder has been convicted of certain types of moving violations in their personal vehicle.

If your privilege to operate your personal vehicle is revoked, cancelled, or suspended due to violations of traffic control laws (other than parking violations), you will also lose your CDL driving privileges. If your privilege to operate your personal vehicle is revoked, cancelled, or suspended due to alcohol, controlled substance or felony violations, you will lose your CDL for one-year.

Additionally, in Oklahoma, the law requires the CDL holder to notify his/her employer within thirty days of a traffic violation conviction. In addition, if you get a traffic ticket in another state, you are required to inform your employer and the Oklahoma Department of Motor Vehicles.

If you have questions regarding Oklahoma CDL violations, or other Oklahoma traffic tickets, contact one of our Tulsa criminal attorneys for a consultation. Our firm has been protecting the rights of Oklahomans for over thirty years.

[1] 47 O.S. Section 6-205.2

[2] https://www.ok.gov/dps/Driver_License_Suspensions/Commercial_Driver_License_Disqualification/Serious_Traffic_Offenses.html

Oklahoma DPS Supsensions; Defects in the Officer’s Affidavit

Oklahoma DPS Suspensions: Defects in the Officer’s Affidavit

Oklahoma DPS SuspensionsLast week we discussed the requirement of a statement of an officer contained in the Officer’s Affidavit that he/she had reasonable grounds to believe the person arrested for DUI had been operating (or was in actual physical control) of the motor vehicle. This week, we will discuss another issue related to the Officer’s Affidavit; whether the Officer’s Statement must be signed by the officer with personal knowledge of the facts contained therein, or if a signature by an officer with personal knowledge of the facts contained therein is sufficient basis for DPS to rely on in suspending an individual’s driving privileges.  This distinction may not seem clear, but is demonstrated by the facts of the Martinez case below.[1]

Mr. Martinez was observed being in actual physical control of a vehicle while intoxicated by Officer A, who administered a field sobriety test. Because Officer A had been on a 10-hour shift, Officer B told Mr. Martinez he was under arrest and placed him in the back of his patrol car. Officer B transported Mr. Martinez to the jail and administered a BAC test. Officer B then made out the sworn report required by 47 O.S. 754(c) stating he had reasonable grounds to believe the arrested person had been operating (or was in actual physical control) of the motor vehicle. The dispute in this case arises here; Does 47 O.S. 754(c) require the same officer(Officer A) who observed the conduct in the statement sign the form or is it allowable to for an officer who has personal knowledge of the conduct(Officer B) to sign the Officer’s Affidavit?

Mr. Martinez challenged the suspension contending the Oklahoma statutes require Officer A to sign the Officer’s Affidavit. In deciding that case of first impression, the Court of Civil Appeals of Oklahoma rejected Mr. Martinez’ contention and held that the form can be signed by any law enforcement officer with personal knowledge of the facts contained therein. In making the ruling, the Court noted that the form is one not used in making determinations of justification—the form merely establishes prima facie evidence for revocation which can be rebutted later—it therefore does not need to be made by the “arresting officer”.

If you have questions regarding a Tulsa DUI arrest or Oklahoma DPS Suspensions, contact one of our Tulsa DUI Attorneys at (918)592-1144 or online here for a consultation.

[1] Martinez v. State ex rel. Dept. of Public Safety, 2014 OK CIV APP 17.