Read More: http://www.youngmarmalade.co.uk/news-article/id/40

According to a recent UK study by car insurance firm Young Marmalade, drivers who suffer from cold and flu like symptoms can be as ‘impaired’ as persons who have consumed ’4 double whiskeys’.  The researchers warn, “A heavy cold can impair a driver’s mood, concentration and judgement (sic), if you don’t feel well don’t drive.”  All this even without the driver having taken any over the counter medications that could have an effect on their ability to drive.

As of right now,Oklahoma’s has no law prohibiting driving under the influence of infection (this is a great title I know, but I can’t claim complete credit – I stole it from a girl I went to high school with).  Fortunately, Oklahoma does not have a catch all definition of impairment that would include sick people – at least not yet (the screws of the law in DUI never seem to go any other direction than tighter though during each legislative session).We do, however, have a statute against driving under the influence of ‘any other intoxicating substance” which could include the over the counter meds that a person might take to make them feel better.  The measurement of these substances has been spoken of in this blog before, and my opinion of our blood testing reporting requirements still haven’t changed.

I think that the end result of this study is that it might actually provide a means for a defendant to raise an affirmative defense in their respective cases.  I think that the main benefit to the defendant will be a way to challenge officer opinions and possibly create reasonable doubt in the mind of criminal juries – especially sick ones.

Good Luck this New Year to all our readers!

Jeff Sifers

Attorney at Law (AKA Lawyer)

siferslawoffice@gmail.com

This is a great news story.  November 1, 2011 Oklahoma law will change and allow any law enforcement person who has received training in field tests to testify as opinion witnesses as to the tests validity.  I’m glad this story spent some time getting the opinion of some real people and what they think of these “tests”.

For those of you who will invest the time to watch the video, make sure you pay attention to the fact that the reporter qualifies the tests by saying that anyone who scores a .00% on a PBT (portable breath test – device) would be released.  It’s important to note that she, although having blown .000, would likely have been arrested by “officer” (and my good friend) Bruce Kapsack based upon his opinion of her performance.  This is hugely important here in Oklahoma because our Board of Tests has yet to officially approve any PBT as a valid, reliable device for roadside testing.

A Sapulpa gentleman, Mr. Ellenburg, was arrested today for operating a tractor on a public roadway while supposedly under the influence of alcohol. The opinion of his impairment came from the arresting officer, at least according to the article, based in large part upon the simple fact that tractor driver smelled of alcohol.

As you might expect, I perhaps read this story very differently from many. You see, while this event probably made a easy day for a beat writer – a relatively funny, interesting, typically Oklahoma story – I’d file a pretty quick motion to dismiss the whole thing. Here’s my reasoning, and granted I could be wrong, but I’m probably not.

Let’s begin at the beginning:

In order to be found guilty of the crime of aggravated DUI in Oklahoma a person must first be proven to have been operating or in actual physical control of a “motor vehicle” under the influence. Basic, right? Rule Number 1 – Numero Uno. One might think that a tractor is obviously a motor vehicle – it moves under it’s own power right? My friends this is Oklahoma, tractors should probably be in our state seal somewhere along with a football – we are an agricultural state – always have been and our laws reflect that. In this news story, as in most issues where proof is important, accepted definitions of what something is (No Bill Clinton jokes here please) really matters:

State Statute tells us:

Title 47. Motor Vehicles
Chapter 1- Definitions of Words and Phrases
Section 1-134 – Motor Vehicle
B. As used in this title, the term “motor vehicle” shall not include:

1. Implements of husbandry, as defined in Section 1-125 of this title;

Now, So we turn our attention to this one:

Title 47. Motor Vehicles
Chapter 1- Definitions of Words and Phrases
Section 1-125 – Implement of Husbandry

Every device, whether it is self-propelled, designed and adapted so as to be used exclusively for agricultural, horticultural or livestock-raising operations and, in either case, not subject to registration if operated upon the highways.

So what we have here, drawing solely from the article (which likely came from the police report or an interview with some police representative with knowledge of the story), is the arrest of a man, on a tractor, who may have had a bit to drink. If you’ve made it to this point in the article, I think it could be argued that Mr. Ellenburg COMMITTED NO CRIME under our current laws. In fairness (I know that my critics will say that fairness is unbecoming in a lawyer, but…), if it were found that the tractor in question was a yard tractor like I have in my shed outside, my discussion of husbandry might be misplaced though someone would have to be pretty convincing to change my mind.

All joking aside, while this news story gained some attention due to its novelty, here’s hoping that Mr. Ellenburg will hires the right lawyer for this case…

Jeff Sifers
Attorney at Law

www.okcduicenter.com
www.15dayclock.com

There really is a Sifers Law Difference in DUI Defense!

Call Us Today!
(405) 232-3384

I hate this part. Here comes the yada, yada, yada:

Disclaimer:

The above should not be considered legal advice and is solely the opinion of the author. The material on this site is made available with the understanding that The Sifers Law Firm is not engaged in providing professional advice to the reader. Before relying on material on the site users should independently verify the accuracy, completeness and relevance for their purposes and should obtain any appropriate professional advice relevant to their particular issue.

When you approach these things, you DO have to stop. You do have to show them your license and insurance. If you have neither, don’t be driving.If they make you drive over to another area, you have to.

If they ask you to get out of the car, you have to.

Remember that these cops, when they approach you at these stops, are assuming you are doing something wrong or illegal. Therefore, keep your conversations with them to the minimum. DO NOT tell them you have had anything to drink. You do NOT have to answer that question. Or, you can simply say NO, if you are asked.

You do NOT have to tell them where you are going or where you have been. Don’t answer those questions. Tell them you will answer those questions after you have spoken to your attorney.

However, if they ask you to do some test to “see if you are ok to drive”, you DO NOT have to do it. These field sobriety tests are NOT required. They are subjective, unreliable, and designed for failure. In short, they are crap. If they have reached the point of asking you to do these, they have already decided to arrest you. They are ONLY trying to get additional evidence – albeit subjective, and these tests do NOT indicate whether you are impaired or not – against you to support their arrest. Refuse to take ANY field test.

If you are asked to blow into a breath test AT THE SCENE (usually a hand held device), tell them NO.

Don’t blow into it at the scene.If you ARE arrested, you are going to be asked to take a test at the station, and probably a breath test. So, what do you do?

1. If you have not drunk any alcoholic beverage that evening even if you HAVE been using any other drunks, take the breath test. 2. If you have had 3 or less that evening, take the breath test.HOWEVER, if you DO take the breath test, ask for a BLOOD test IMMEDIATELY after your last blow.