The Oklahoma Highway Patrol announced within the past few days that it will be cracking down on DUI offenders through the 4th holiday (July 4 through 7) within the counties in the southern part of the State. If what I have heard is correct, such an announcement would be not unusual or particularly noteworthy for this time of year. What IS noteworthy about this one is that I have reason to believe that, through this period of time, arrested persons will NOT allowed to refuse a breath or blood test. In EVERY INSTANCE, if an arrestee refuses the test, the OHP is going to go to a judge and request a warrant to forcibly withdraw blood from that arrestee. Notwithstanding whether they have ever done this before, this is still shocking.
A DUI case certainly CAN be filed and prosecuted to a conviction WITH a refusal and WITHOUT a test. This happens daily in this State. However, Oklahoma’s chemical test statutes specifically allow a person to refuse a test in a DUI arrest. In fact, the language of the statute creates a right of the person to refuse without more. While certainly the state can take action against his license for refusing the test by suspending it, both his right to refuse – and his right to be protected from the government sticking a needle in his arm – is protected by this statute. The language of that statute provides that upon a refusal of any test (breath OR blood), “none shall be given”. (See 47, sec. 753 here). The word “shall” in our statutes has long been recognized by our Appeals Courts as referencing a MANDATORY action. The exception to that right to refuse is in wrecks that result in great bodily injury or death. Absent those two factors, as provided by this statute, the refusal must be honored.
Claims that the U.S. Supreme Court has sanctioned this activity mean little. (See Missouri v. McNeely – here). That Court sets the boundaries for the minimum individual protection under the U. S. Constitution. The State(s) can make those protections GREATER, but not less, than that boundary. Oklahoma has done that with sec. 753.
Such “no refusal” actions by the government DO NOT occur on a regular basis. These are only done arbitrarily and usually around holiday weekends. This action by the OHP is, then, a blatant, deliberate, malicious, and arbitrary attempt to ignore and circumvent a statutorily provided right of a person. This is yet ANOTHER example of the government ignoring or snatching away personal rights in the name of “protecting us” against an evil. This should cause an uproar. It probably won’t; until that is, the “wrong” person is done this way or until “we” yell loud and long enough.
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