Spring Broken: An Overview of Title 47, Section 11-902

by Dylan Erwin 

    One of my favorite classes in law school was criminal procedure. One of my most vivid memories involved a group discussion of the arguments put forth by Jay-Z in his song “99 Problems.” Specifically, the lyric, referring to a traffic stop, when Jay says, “I know my rights, and you’re gonna need a warrant for that,” is troubling. As my criminal procedure professor was fond of saying, “Jay-Z actually has 100 problems, and a fundamental misunderstanding of the law is one.” An essential part of being a functioning member of society requires that we know what rights we have in that society, as well as what the laws allow and prohibit. Although it has been a while since I’ve been on a spring break trip, I’m more than aware that many of you lucky ones are counting down the days. Just think about it – an entire week where all you have to do is sit by the pool (weather allowing), finally read that book your significant other bought you for Christmas, have some drinks, and enjoy yourself. This is why, as one of the firm’s criminal law practitioners, I wanted to take a few moments to remind everyone about the laws against drunk driving, and potential prosecution you could face in Oklahoma’s district courts for violations of those laws.

    In the State of Oklahoma, the laws against driving while under the influence are found in title 47, section 11-902 of the Oklahoma state statutes (accessible for free at http://www.oscn.net under the “Legal Research” tab). If you are stopped by a peace officer with a blood or breath alcohol concentration (BAC) of eight-hundredths (0.08) or more, you could be prosecuted for DUI. If your BAC is found to be 0.15 or more, you could be prosecuted for Aggravated DUI. Although the elements for an Aggravated DUI are the same, you could face additional penalties, including the installation of an ignition interlock device on your vehicle, if you are convicted. Regardless of your BAC, as long as you have no prior DUI convictions on your record and no one was injured while you were operating your motor vehicle, a first time DUI is charged as a misdemeanor. In Oklahoma, a misdemeanor DUI carries a punishment of not less than ten (10) days, and not more than one (1) year in jail, and up to a $1,000 fine, or both.

    Even if your BAC is below 0.08, you can still be prosecuted for Driving While Impaired (DWI). DWI – not to be confused with the Texas offense “Driving While Intoxicated,” which is their DUI equivalent – is what’s known as a lesser included offense. Unlike DUI, where the BAC of 0.08 is a required element of the crime, case law tells us that a DWI requires nothing more than evidence of impaired driving. Typically, though, a DWI is charged when a person has a BAC of 0.06 or 0.07. A DWI carries a punishment of not more than six (6) months in jail, and up to a $500 fine, or both.

    Section 11-902 covers far more than simply drunk driving; it also discusses being under the influence of “any other intoxicating substance.” Unlike alcohol, drugs do not have a “measurable quantity” requirement. In fact, you are guilty of a DUI if you have any amount of a controlled substance in your body when operating a motor vehicle. A controlled substance doesn’t simply mean marijuana, or other illegal drugs. It also includes certain medications, even ones prescribed by your doctor! Pharmacists usually give you a heads up by placing a “do not operate heavy machinery” label on your prescription bottle, but many people don’t realize that a vehicle is considered heavy machinery. In fact, a vehicle is some of the heaviest machinery you can operate. When in doubt, ask your doctor and/or pharmacist.

      If you’re lucky enough to get a spring break, enjoy it; but, never forget that driving is a privilege, not a right. So, if you find yourself by the pool this week, and you’ve been partaking in an adult beverage – as you are entitled to as an individual over the age of 21 – it might be a better idea to simply order pizza rather than drive to Taco Bell.  You should return from spring break feeling relaxed and recharged. You shouldn’t return feeling spring broken with a new conviction on your record.

For more information on DUIs, please contact Dylan Erwin at 272-9241 or dderwin@andrewsdavis.com.


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2 comments (Add your own)

1. Tim Larason wrote:
What are your recommendations if you are stopped and asked to take a test. As I recall if you decline to take a test you face license suspension for a year. If you take the breath test with a bad result, is it worthwhile to then demand a blood test? Is this likely to show a lower level, especially if delayed for a period of time?

Mon, March 14, 2016 @ 7:35 PM

2. Dylan D. Erwin wrote:
Excellent question, Tim! This is a question I get on a regular basis. I'd be more than happy to point you in the right direction. My contact information can be found at the end of my blog post.

Tue, March 15, 2016 @ 2:20 PM

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