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DUI Legal Process in Oklahoma


After arrest, you will be placed in jail awaiting arraignment. At arraignment, you shall meet with your lawyer and enter a plea: guilty, not guilty, or no contest. The judge will then determine if you will be released on your own recognizance or set bail. Accordingly, the prosecutor will normally give you copies of all the evidence. The judge will then set a trial date.

Preliminary hearing, Pretrial Motions, & Plea Deal

A preliminary hearing is a trial before a trial. The prosecutor will present her case and the defense (you or your attorney) shall argue if there is sufficient evidence for trial. You can present witnesses; however, the judge has discretion to allow testimony or not because this is not a real trial. You can make motions to suppress because of constitutional violation or “motions in limine” because the evidence fails to conform to the rules of evidence. The judge will determine if there is enough “probable cause” to go to trial. If so, a trial date is set. If not, the defendant is free to go.

At this point, the prosecutor or defense will offer a plea deal. You have the right to accept or refuse. Normally, the deal requires that you participate in an assessment program or participate in a program (i.e. Alcohol Anonymous).


To be convicted of a DUI, the prosecutor must show: (1) the arresting officer had probable cause to believe that you were intoxicated and stopped you, (2) you were the driver of the vehicle, (3) the incident occurred in Oklahoma, and (4) you had a blood alcohol content of 0.08 or higher.

To stop a vehicle, the arresting officer must have probable cause that a crime is occurring. Probable cause occurs in two ways: either the officer saw the vehicle commit a traffic violation or is convinced that the driver is driving under the influence. If a traffic violation has occurred, the officer has every right to stop you. It does not matter if the officer had the intent to stop you for the traffic violation or for a DUI, the entire stop is constitutional. If there is no traffic violation, the officer must have probable cause to believe that you were driving under the influence. The test is the totality of the circumstances. The officer is to look at all the facts and determine if there is probable cause that the driver is intoxicated. If there is no probable cause, the stop and search is illegal and everything found is thrown out.

The second requirement is identity. The prosecutor must show that you were the driver of the vehicle. A person cannot be charged with driving under the influence if she is not the driver. If the prosecutor cannot prove that you drove the vehicle, you cannot be convicted of a DUI.

The third requirement is that the incident occurred in Oklahoma. The DUI stop and arrest has to occur in Oklahoma. If the stop is in another state, for example Missouri, the prosecutor has no right to force Oklahoma law in a Missouri jurisdiction. If the incident occurs in another state; Oklahoma has no right to prosecute you.

The final requirement is a BAC of 0.08 or higher. The prosecutor must show that you had a BAC of 0.08 or higher. If you gave a sample and it was 0.08 or higher, this is prima facie case that you were driving under the influence. If you gave a sample, but it was under 0.08, this is prima facie case that you were not driving under the influence. If you gave no sample, the prosecutor can use circumstantial evidence to prove that you had a 0.08 BAC. For example, assume that you refused to give a sample but conducted every other test: HGN, walk & turn, one leg stand, etc. The prosecutor can use all the evidence to convince a jury that you were intoxicated.

It should be noted that the prosecutor must prove all elements. If one is missing or forgotten, the conviction will not stand. Furthermore, the prosecutor must convince the jury “proof beyond a reasonable doubt.” If one reasonable doubt exists, the conviction cannot stand. This is a high threshold. If the prosecutor cannot prove that you committed a DUI beyond a reasonable doubt, the jury must find in your favor.

At trial, both you and the prosecutor will present opening statements outlining your case. The prosecutor will then present evidence of your DUI. You have the right to cross-examine any witnesses produced. The prosecutor will then rest and you shall present your case. You may present any evidence/witness that is reliable, material, and relevant to the case. The prosecutor has the right to cross-examine your witnesses. You shall then rest. Both you and the prosecutor will then make closing statements.


The judge/jury will then make a determination. If you are found “not guilty”, you are free to go. If you are found guilty, you are sentenced.

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