Oklahoma Appeals Court Reiterates Due Process Violation in Driver’s License Appeal

A division of the Oklahoma Court of Civil Appeals has ruled that an unexplained and lengthy delay in providing an administrative hearing by the Department of Public Safety can amount to a deprivation of due process.

In Ryan v. Commissioner of the Department of Public Safety, a driver was stopped and refused the officer’s request to submit to a breath test. Under the State’s Implied Consent Law, the driver was given notice that his License would be suspended. Before the expiration of the 15-day appeal period, the driver requested an Administrative Hearing on the suspension.

After the hearing was set, the Department caused the Hearing to be postponed. After another postponement, the hearing was finally held 13 1/2 months after the Driver’s arrest. After the hearing, the State Hearing Officer affirmed the suspension, and the driver appealed to the District Court. Finding that there was no Constitutional violation, the District Court affirmed the suspension.

The State Court of Civil Appeals reversed. In it’s opinion, the Court said that the Department had not produced any evidence that there was a compelling reason for the delay and that the delay was not of the driver’s doing. Further, the delay did work to the driver’s detriment, in that he was no longer employable at his current position, and had to take a lower paying job pending the outcome of his Administrative Hearing.

Read the Decision here.

Find more information at the Oklahoma Law Website

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OKLAHOMA COURT CLARIFIES “REASONABLE” SEARCH

The Oklahoma Court of Criminal Appeals has decided a case that clarifies when a law enforcement officer can conduct a search without consent, where the initial contact did not involve suspicion of illegal activity.

Te Defendant was standing beside his motorcycle in the parking lot of an establishment that was closed. A Deputy Sheriff approached the Defendant, and asked him what he was doing. The Defendant replied he was “taking a break”. At that point, the Deputy asked to see the Defendant’s driver’s license and proof of insurance. The Defendant told the officer that he did not have insurance for the motorcycle.  The Deputy then impounded the motorcycle, as the compulsory insurance law allows.

When the Deputy asked the Defendant for consent to search the motorcycle saddlebags, the Defendant refused. The Deputy called for the assistance of the local police department. An officer with a drug sniffing dog was in the parking lot of the casino across the street, and responded within a couple of minutes. The dog “alerted” on the motorcycle bag. A search revealed a bag containing methamphetamine.

Initially, the District Court granted the Defendant’s Motion to Suppress the evidence, because the officer was without suspicion of illegal activity when he first approached the Defendant. The Court of Criminal Appeals reversed, saying that the role of law enforcement officers is not only to detect and prevent criminal activity, but also to assist people who may be in distress.

At the time the Deputy approached the Defendant, there were indications that the Defendant may be a motorist in need of assistance. Once contact was made, the Deputy was within his authority to ask for the Driver’s License and proof of insurance, as the motorcycle obviously was being operated on the public streets. Discovering that the motorcycle was not legal for public streets, due to lack of insurance, authorized the Deputy to arrest the Defendant, impound the motorcycle, or both. Officers are allowed to inventory impounded vehicles for the protection of the police, the public and the person arrested.

In this case, the “detention” was not lengthened beyond what was necessary to further the legitimate interests that led to the contact. The time from initial contact until the arrival of the drug dog was less than six minutes. As each of the officer’s actions was reasonable given the situation as it unfolded, the Court of Criminal Appeals ruled that the search was proper, and the evidence should be allowed.

Read the Decision here.

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OKLAHOMA DUI OFFENDERS COULD FACE VEHICLE FORFEITURE

Effective November 1, 2014, multiple DUI offenders and people who cause death or bodily injury while under the influence could face forfeiture of their motor vehicles. An amendment to the punishment provisions of the DUI law paves the way for the drastic consequences.

First, a couple of important notes regarding the DUI laws:

DUI is the abbreviation for “Driving Under the Influence”, and includes not only alcohol, but also drugs. And not only illegal drugs, but lawfully prescribed medication and over the counter substances.  Anything that, acting by itself or in conjunction with other things inside one’s body, causes that person to have his/her driving ability significantly impaired, can be the culprit.

Secondly, “Actual Physical Control” of a motor vehicle while under the influence, is a form of DUI.  Being in control of an operable motor vehicle, running or not, on or near a public street is treated as a DUI.

Beginning November 1, 2014, any person convicted of DUI or APC who, within the 10 years prior to the offense, was previously convicted of a DUI or APC, and either the current offense or the past offense involved the death or serious bodily injury of another; OR

Any person convicted of a third or subsequent felony DUI or APC,  is subject to having the vehicle forfeited to the state.

To commence forfeiture proceedings, the District Attorney must file Notice of an Intent to Forfeit Motor Vehicle, and then must file the Motion to Forfeit Motor Vehicle no later than 30 days after the Guilty verdict, or plea of Guilty or No Contest.  If the Motion is filed before the conclusion of the criminal proceedings, the Motion cannot proceed until the criminal proceedings are complete.  Notice must be given to any person known or believed to have a lien interest or ownership interest in the vehicle.

At the hearing, anyone claiming an ownership interest must prove that he/she has a good faith, bona fide ownership interest in the vehicle, that he/she is not the person convicted of the offense and that he/she did not know, and could not have known, that the vehicle would be operated or controlled by one under the influence.

The vehicle may be forfeited, and ordered sold if needed to satisfy valid liens, if the Court finds that the forfeiture will serve any of the following purposes:

–Incapacitation of the person from re-offending;

–Protection of the safety and welfare of the public;

–Deterrence of other potential offenders;

–Expression of public condemnation of the serious or aggravated nature of the offense;

–Satisfaction of monetary amounts owed for fines and costs.

If the vehicle is forfeited, the vehicle would then be sold, and the proceeds apportioned as follows:

–To satisfy a lienholder;

–To the costs of conducting the sale;

–To any impound expense, including towing and storage;

–To satisfy the ownership interest of one who has made the proof;

–To criminal penalties, fines and costs;

–To the District Attorney’s office, to the extent of 25% of the remaining proceeds;

–The balance, if any, will be deposited in a Drug Abuse Education and Treatment Fund.

Find more information at the Oklahoma Law Website

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Find more information at the Oklahoma Law Website

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OKLAHOMA COURTS TO GET UNIFORM PRIVACY RULES

Change is coming to the system of access to Oklahoma Court Records. The current system is a hodgepodge, to put it mildly. Under the current scenario, Court records are accessible for the State’s 13 largest Counties through the Oklahoma Court Information System at http://www.oscn.net. Records for the other Counties, along with some Municipal and Tribal Courts through the Oklahoma District Court Records System, at http://www.odcr.com. For both systems anyone can see the Dockets (list of events) for any case, beginning with the date such records were electronically recorded, which is different for each County. For OCIS Counties, anyone can also see images of the actual documents filed, from and after the date the County began scanning the documents. The same is true for ODCR Counties, but only if you have a paid subscription. The individual Court Clerks decide, up to a pint, which records scanned and made available. (Records of Adoptions, Guardianships and Mental Health Cases, among others, are required to be sealed)

A few years ago, the Oklahoma Supreme Court issued rules that require a single uniform system for electronic storage and access to District Court Records. The pilot program (Noble County) is currently being tested. Now, however, discretion is being taken away from the Court Clerks in determining what records will be made available. Effective November 1, 2014, the Oklahoma Supreme Court is being charged with the implementation of uniform rules that will apply to all District Courts. These new rules could dramatically impact how people should approach their lawyers in the drafting an filing of documents.

Here are some examples:
-A person pleading guilty or no contest to a felony is required to complete and sign a Record of Plea form. This form contains the full name, date of birth, address and Social Security Number of the Defendant;
-In child custody cases, a wage assignment is sometimes filed, to allow for direct withholding of child support from the wages of the payor. This form contains the names, dates of birth and Social Security Numbers of the parties and the minor children;
-Orders amending birth certificates for name changes and other actions must contain, name, date and place of birth, and other information for the issuing authority to amend the records.

Once the new rules are in place and implemented, every public document filed in any Oklahoma Court, will be scanned and made available to anyone with a computer anywhere in the world. The best advice to anyone is to avoid the rush and begin practicing vigilance now. Tell your lawyer you want to review every document that will be filed at the Courthouse, and look for the inclusion of any personal identification data. If it is there, see if it can be redacted, at least partially (only the last 4 digits of account numbers and Social Security numbers). If not, see if it will be a “public record” accessible by internet download. In extreme cases, you can ask your attorney to file the document(s) under seal. This will cost more money, and will require extra care, but will be well worth it in the long run.

Finally, pay attention to the rules creation process. Prior to implementation, the Supreme Court will publish proposed rules, and ask for comments and input from the public. The best way around a bad rule is to prevent it from being enacted in the first place.

If you believe this information is valuable, please consider sharing it on Facebook, Retweeting it, or passing it along to the Social Media of your choice.

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Consent to Search? What if One Says Yes and One Says No?

The Fourth Amendment says that there must be a warrant to search someone’s premises, subject to some exceptions.  One of the biggest exceptions is consent.  If one in control of property consents to the search, then no warrant is required.  But what if two people own or rent a house or apartment, and one consents while the other objects?  Until now, the person objecting prevailed.  Now the Supreme Court has further clarified the exception.

What if John and Mary share a house.  Police receive a call of an apparent fight taking place in the residence.  The police arrive to find evidence of domestic abuse.  Police want to search the residence.  Mary says yes, but John says no.  Under normal circumstances, the police will have to get a warrant to search over John’s objection.

But suppose the officer runs a check and finds outstanding warrants on John.  John is taken into custody on the warrants.  Can the police now search based on Mary’s consent.  The US Supreme Court just said yes.  In order for an occupant to object to a search, that occupant must be present.  If the objecting occupant is removed for objectively reasonable reasons, the objector is no longer “present” to pose the objection, so the police can now search without a warrant on the strength of Mary’s consent.

Find more information at the Oklahoma Law Website

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Financial Consequences of DUI

Part of my practice is devoted to representing people charged with DUI (Driving Under the Influence of Drugs or Alcohol – not to be confused with “DWI”, Driving While Impaired).  The two questions I am most often asked are “Will I go to jail?, and “How much is this going to cost me?  As for jail, the answer is almost always “no”, but as for the money, well, you may want to take a belt to prepare for the ugly truth.

Drinking related offenders have political correctness working against them.  Hardly any punitive measure fails to pass if it is directed at the drunk driver.  Whether or not this is a good thing is a political debate that does not belong here, and I will not be hosting any comments in that regard.  The result, however, is that anyone charged with DUI (or even Actual Physical Control of a Vehicle while intoxicated), can expect a long list of expense items that will have to be paid before the episode is behind them.

Three things about the list that follows:  First, it is for a first offense.  Second and subsequent offenses can (and often will) be more, depending on the specific circumstances.  Second, some of the items may be a bit less, or left off entirely, depending on the Court, Prosecutor and Judge involved, and may be more if you are in a Court with a particular policy that requires more.  Finally, every case is individual, and in any given case, there may be departures because of unique facts.

So grab your checkbook, take a deep breath, and prepare to pay:

  • DRUG & ALCOHOL. ASSESSMENT – 160
  • 10 HOUR DUI SCHOOL – 150 – 24 HOUR DUI SCHOOL – 360 (Depending on which is required by the assessment).
  • VIP PANEL – 60
  • INTERLOCK INSTALLATION AND REMOVAL – 70
  • INTERLOCK CERTIFICATE – 10
  • MONTHLY INTERLOCK RENTAL – 65 PER MONTH (MINIMUM 6 MONTHS)
  • MODIFIED PERMIT – 175
  • FINE – 350 (MINIMUM)
  • COSTS – 375 for Municipal – 850 for District Court (Minimum)
  • AT LEAST 40 HOURS COMMUNITY SERVICE OR WORK PROGRAM
  • DRIVER’S LICENSE REINSTATEMENT – 175

So the bare minimum for a first offense in Municipal Court is $1,915, and for a first offense in District (State) Court is $2,390.  And if you look back over the list, you may notice one item missing – an attorney’s fee.  Ethical restrictions prohibit me from discussing fees in detail here, but anyone facing a DUI, or any criminal matter in Tulsa, Broken Arrow or Wagoner can reach me at (918) 258-2711 to discuss those matters in detail.

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Oklahoma Supreme Court Says No Privacy For Some Texts

The Oklahoma Supreme Court has issued a new opinion on the “expectation of privacy” that a person has in text messages received by, and responded to, by a criminal defendant.

State of Oklahoma v. Marcum involved two individuals (Miller and Marcum) that exchanged texts.  Miller originated the text, and Marcum responded.  The texts were stored in the computers of Miller’s cell phone company.  When Miller became aware that he was under investigation, he texted Marcum, and she responded.  The trial Court ruled that none of the texts could be used against Miller and Marcum, as both had a “reasonable expectation of privacy” in the text messages.

The State of Oklahoma appealed as to Marcum, and the Oklahoma Court of Criminal Appeals reversed the Trial Court, ruling that Marcum had no reasonable expectation of privacy in the texts originated by Miller, and stored on the computers of Miller’s cell phone provider.

You can find the opinion here.

Find more information at the Oklahoma Law Website

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