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:
“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.