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Frequently Asked Questions about DUI in Oklahoma

Do you have to give a blood or urine sample?

To apply the implied consent law, a valid stop is a prerequisite. If the original stop was illegal, everything after becomes illegal and excluded. It doesn’t matter if you gave your consent just by driving on the road; your consent is now nullified. A valid stop requires a showing that the officer had probable cause to believe that the driver was intoxicated or committed a traffic offense.

If the motorist is lawfully arrested and the arresting officer has probable cause to believe that the motorist was driving under the influence, the motorist might be required to give a blood or urine sample. Under Oklahoma law, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of her breath, blood, and urine. The test to be given depends on the local police department’s policies. Normally, the police department will have breathalyzers available. If no breathalyzers are available, the next test is blood. If both blood and breath tests are unavailable, saliva or urine tests are used. Normally, the arresting officer will tell you about the tests and allow you to choose one. If you request a certain test, the officer must obey; unless the department lacks the necessary equipment to do so.

However, you are not required to give a sample. As a general rule, you are your own destiny; you can consent or not consent to giving a sample. The police cannot use force or coercion to obtain the sample. There are two exceptions to this general rule. The first is when there is a desperate need. For the desperate need exception to apply, the officer need to have probable cause to believe that the person under arrest, while intoxicated, has operated the motor vehicle in such a manner as to have caused the death or serious physical injury of another person or persons. The officer needs to write his probable cause in an affidavit and sign his name at the bottom. By doing so, the affidavit and probable cause becomes a warrant for the intoxicated person’s blood, breath, urine, etc.

The second exception is being unconscious. Under Oklahoma law, the implied consent law applies even to unconscious people. You still gave your consent to taking the test. Thus, the police can take your breath/blood/urine/saliva while you’re asleep.

There two ways to avoid consenting to give a sample and not get your license revoked: not be on one of the specified area or be suffering from a medical condition. For the former, the implied consent statute only applies to turnpike, public places, private roads, streets, alleys or lane which provides access to housing. If you were in some other place (say a cornfield), then asking for a sample is inappropriate.

The second way is a medical condition. When asked to give a sample, you can tell the officer that you have a medical condition that prevents you from giving a sample. For example, a person with asthma would have a hard time blowing into a breathalyzer.  To invoke the exception, you need to prove your medical condition by a doctor’s order or any other documentation.

Do I have a right to consult an attorney before submitting to a test?

Under Oklahoma law, you do not have the right to consult with an attorney before giving a chemical sample. The Sixth amendment of the United States Constitution states “in all criminal prosecutions, the accused shall have the assistance of counsel for his defense.” An administrative revocation is not a criminal trial. It is a civil administrative hearing; thus, no trial to counsel is implied. Furthermore, this is the correct reading because of the nature of a DUI. Alcohol dissipates quickly within a person’s body. If the government had to stop and let every single suspect talk to her lawyer, no DUI conviction is possible. The alcohol would dissipate throughout the body and all readings would be lower. Finally, it is the statute’s intent to stop drunk drivers from harming other individuals. In order to carry out the intent, right to an attorney has to be curbed. Taking all these interests into consideration, Oklahoma grants no right to counsel before giving a chemical sample.

There is one exception around this general rule. A request to speak to an attorney is considered a “refusal.” However, you can cure the refusal by subsequently consenting to take the test. This exception only applies if the subsequent consent was “timely.” To determine if something is or is not timely, five elements is required:

  1. whether the subsequent consent was made within a short and reasonable time after the first refusal;
  2. whether the test administered in the subsequent consent would still be accurate;
  3. whether the testing equipment is readily available;
  4. whether honoring the request will result in no substantial inconvenience or expense of the police; and
  5. Whether the individual has been in custody of the arresting officer and under observation for the whole time since arrest.

Whether a subsequent consent is or is not timely depends on the facts and circumstances of the case. Consenting to give a sample after ten minutes might fit the criteria. Consenting after one hour might not. Whatever the case, Oklahoma affords no right to counsel before giving a sample. However, there might be a way to circumvent the rule and consult with an attorney.


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