Oklahoma DUI/DWI FAQS
What is the difference between DPS License Hearing and Criminal Case?
With any DUI charge, there are two separate cases. The first matter is the criminal case against your liberty which carries fines and possible jail time. Here, the government must prove each element of the crime opposite to a reasonable doubt to a judge or jury. If they cannot do so, then you would be found not guilty in the criminal matter.
The second matter is a civil action against your driving privileges. These two matters are completely separate and do not affect each other with only one exception to be explained. The issue at DPS is whether the test was finished according to the Oklahoma Board of Tests rules and rules or if your refusal was valid under the same rules. If the BOT rules were not adhered to, the revocation would be set aside and your license returned.
It is possible to get a DUI dismissed or be found not guilty of DUI and still lose your license. Yet, the one exception of where the two separate matters affect each other is where the license revocation is set aside and you got your license back but you are convicted of DUI, DPS will suspend your license based on the DUI conviction. There is only one license suspension per DUI arrest, but the government gets two chances to take your license.
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Q. What indicators of drunk driving are the police looking for?
A. The National Highway and Traffic Administration lists the following signs that a driver may be under the influence of alcohol.
1. Turning with wide radius
2. Straddling center of lane marker
3. Almost striking object or vehicle
4. Weaving
5. Swerving
6. Speed slower than 10 m.p.h. below limit
7. Stopping in lane for no obvious reason or inappropriately
8. Following too closely
9. Drifting
10. Tires on center or lane marker
11. Braking erratically
12. Slow response to traffic signals
13. Signaling inconsistent with actions
14. Turning abruptly or illegally
15. Speeding up or decelerating rapidly
16. Headlights off at night
17. Appearance of intoxication
o Eye fixation
o Slouching in seat
o Gesturing erratically or obscenely
o Face too close to windshield
o Drinking in car
o Drivers head protruding from the window
o Tightly gripping the steering wheel
Interestingly, except driving too slow, speed is not an sign that someone is under the influence. Driving too fast can be argued to be an sign that the driver is not intoxicated as it takes quicker reactions to handle a vehicle driving more than the speed limit.
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Q. What should I say if I am stopped and asked if I have been drinking?
A. Be polite and courteous. Do not admit any guilt or apologize for anything. This is not the time to try to talk yourself out of the situation as you are nervous and could say something incriminating or something that will be taken out of context by the officer. If you slip, telling the officer that you have had one or two drinks is not necessarily incriminating as it will explain the odor of alcohol. If you only had one or two drinks, tell the officer the time of your first drink and the time of the second drink. This confident, truthful answer would let the officer know that you have not had enough alcohol to be intoxicated.
The number of drinks consumed is not as important as the number of drinks consumed within a certain time frame. Most officers have been trained that the average adult male will absorb roughly one drink per hour and cut roughly one drink per hour. So saying that you have had 4 beers sounds more incriminating than saying that you have had four beers over four hours. Interestingly, most officers do not ask over what time frame the alcohol was consumed though they know this is an important detail to factor in.
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Q. What should I do if asked to take Field Sobriety Tests?
A. There is no legal requirement to take any field sobriety tests and as such, you should never take them as these are subjective tests that are only 65%-77% correct being given to you by someone that thinks you are intoxicated. But, the best way to refuse is to ask the officer "Am I needed to take these tests?". The honest answer is no. Any other answer could leave the jury with the impression the officer is deceptive. Then ask the officer "Are these tests 100% right?". Once again, the answer is NO. At this point tell the officer that you would like to talk to an attorney before deciding what to do. There is a huge difference between refusing to take the tests and asking to talk to an attorney before making your decision. For more information, go to our FIELD SOBRIETY TEST page.
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Q. Are Field Sobriety Tests right?
A. If performed in a controlled environment by a skilled officer who administers the tests in the proscribed manner, the tests can be an sign of intoxication. Still, this is rarely done.
The first research conducted by the National Highway traffic Administration concluded the pen test (Horizontal Gaze Nystagmus) is 77% correct, the Walk and Turn test is 68% correct, and the One Leg Stand test is 65% correct only when administered in the fixed, standardized manner. Any deviation from the standardized manner will compromise the tests' validity.
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Q. Can anything affect my performance on the Field Sobriety Tests?
A. The National Highway Traffic Safety Administration has admitted that SOBER people can have difficulty with these tests! One's ability to do the Field Sobriety Tests can be affected by many factors except alcohol, including;
• Nervousness
• Scared
• Fatigued
• Illness
• traffic
• Wind
• Dust in eyes
• Headlights
• Strobe lights from police car
• Weather conditions
• Physical problems
• Inner ear disorders
• Road or sidewalk conditions
• Age
• Weight
• Footwear
• Lack of coordination
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Q. How is the Breath Testing Done?
A. The State of Oklahoma uses a machine called the Intoxilyzer 5000, which is commonly mentioned as the "breathalyzer" or "Intoxilyzer." The Intoxilyzer 5000 (I call it the Intoxicator or Intoxiliar because of its inaccuracies) costs about $7,500 and can last as long as 10 years. It works on the theory of Infrared Spectrosphopy, which is the absorption of infrared light. Different compounds will absorb different frequencies (wavelengths) of light. The machine has a light bulb positioned at one end of a cylinder. There are filter wheels in the cylinder and on the other side of the filter wheels is a light receiver. Alcohol is supposed to absorb certain wavelengths of light and the machine is supposed to only detect wavelengths of light absorbed by alcohol.
The machine shines a light through the cylinder and the filter wheels will be turning. The filter wheels are designed to filter out potential contaminants. The breath sample enters the cylinder and passes through the filter wheel. The amount of light received at the other end of the cylinder is then recorded. The difference in the starting and ending amounts of light is the result. Interesting enough, the amount of light that is absorbed is not alcohol specific!
The amount of the breath sample and any reading of alcohol are minute. The machine must make a multiplication conversion to an amount great enough for us to understand. The difference in light emitted and received is computed through a computer program in the machine to come up a value that can be compared to a .08. The conversion the machine makes on the differences in light would be the equal of taking the paper towel tube and increasing its size to that of a 55 gallon drum! Any error would then be exaggerated by that amount.
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Q. How Correct is the Breath Test?
A. There is much debate on the intoxicator, I mean the intoxiliar, I mean the intoxilyzer. Proponents of it state that the machine will only read light absorbed by alcohol, while opponents state the machine often misreads other commonly found substances in the breath as alcohol, therefore giving an inaccurate high reading.
1. Neither DPS (Department of Public Safety) nor the manufacturer of the machine will allow anyone except law enforcement to test the machine for its accuracy and reliability. It is generally understood that for a procedure to be accepted as correct and reliable in science, it must be open and available for the scientific community to test and retest the procedure. This is not allowed with the intoxilyzer. What are they trying to hide?
The manufacturer does not call for the intoxilyzer for any particular purpose. The machine is not warranted for correct and reliable breath testing. Would you buy a car without a warranty?
The intoxilyzer can protecting breath samples, but DPS purposefully does not keep these samples. The cost of keeping breath samples would be less than $2.00, and would allow a person the opportunity to have their breath sample checked for accuracy. If found to be inaccurate, it could prevent an innocent person from being unjustly convicted. Further, re-testing of the breath sample could be done by a process know as gas chromatography, which is considered a more exact and reliable method of testing breath samples for alcohol than the intoxilyzer. Why do they not protect samples when your Freedom is on the line?
The intoxilyzer also assumes that everyone tested will have a blood/breath ration of 2100/1 (i.e. 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath). If a person has a higher blood/breath ratio (i.e. 2400/1) the test will not be adversely affected by this assumption. But a person with a lower blood/breath ratio will be adversely affected because the intoxilyzer will erroneously read too high, so a person who should test at .05 or .06 could test well above a .10 (i.e. the intoxicator or the intoxiliar). Also, scientists have documented people with blood/breath ratios as low as 1100/1. Do you want to take the risk the intoxilyzer may falsely hurt you which could lead to a conviction that will be on your record forever and could cost you your freedom? A person with a fever will have a higher breath test reading than an identical person without a fever. To sum up, the temperature of your body can affect what the intoxilyzer reads, and your body temperature has nothing to do with the amount of alcohol you may have or have not consumed.
The experts continue to testify that the intoxilyzer was "functioning properly and capable of giving right results." This sounds good, but what do they mean by capable? (If I buy a ticket, I too am capable of winning the lottery...) The bottom line is that the intoxicator/intoxiliar/intoxilyzer is fast and cheap. Further, if a person passes a breath test, some police agencies will release the person arrested and not file any charges. It is much easier to do this than file a DUI, request a blood test, and later have to explain why they arrested a person whose blood test came back under the legal limit. This is not an all-inclusive list, but it is obvious that there are many problems with the machine.
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