Oklahoma DUI Blog

Archive for March, 2007

DUI/APC LAW: A SPECIALTY AREA OF LAW

Friday, March 30th, 2007

by
Charles L. Sifers

Sifers & Sifers,
Attorneys at Law
Court Plaza Building, Suite 950
228 Robert S. Kerr
Oklahoma City, OK 73102
405-232-3388
charles@siferslaw.com
www.oklahomaduilaw.com


DUI - an Unique & Specialized Crime [2]
       DUI is a crime - and area of law - unlike any other in our books.  A person arrested for, and charged with, this crime is affected by more of the government AT THE SAME TIME than ANY OTHER act that a citizen can exhibit.  When a person is arrested, he is PRESUMED to have already agreed to take a chemical test to determine his sobriety.[3]  No other crime has such a “presumption” that the person has agreed to give evidence against himself at arrest.  This is called the “Implied Consent Law”.  This is a CIVIL law relating to driver’s licenses.  Whether he fails or refuses the test, he has been arrested and will be booked and charged.  This evidence of the test results (or refusal thereof) is then admissible against him in that CIVIL action against his license AND the criminal charge.   And, from the point of arrest, the person now is facing TWO THIRDS of the government.
      How?  In our nation, the sum of government in our nation is found in three branches under our constitution(s):  the legislative, judicial, and executive branches.  That is ALL of government.  That is what our Federal Bill of Rights and our articles within our State Constitution protect us against.  No crime but DUI provides for more than one branch of government to have affect, power, or control over you simultaneously.[4]   But when you get arrested for DUI, you are forced to deal with the judicial branch (the court in which the DUI gets filed) AND the executive branch (the Driver’s Licensing Authority) of the government of the State involved.  
     When you either fail or refuse a chemical test, that Driver’s Licensing Authority - whether called the  Department of Public Safety, Department of Revenue, or whatever[5] -  is empowered to revoke your driving privileges or license based STRICTLY upon that failure and/or refusal.  It does not matter WHAT the outcome of the criminal charge might be.  It can end up never being filed.  OR it could result in an acquittal.  It does not matter.  This agency is going to revoke your license.  The only hope of defending this is to ask for that opportunity within a short time after the arrest.  Then, the issues that the State must prove are minor compared to the criminal charge [6] AND the burden is only preponderance of the evidence which means “more likely than not”.  At this agency, this is a civil mater.  In the author’s State of Oklahoma, appeals concerning this flow to the Oklahoma Supreme Court.[7]  But unlike very few OTHER areas of law that are civil in nature, these matters have their OWN set of appellate rules, deadlines, and procedures.
     Then, reasons for which the person might not have his license revoked (i.e., the test was wrong, not done properly, the arrest was invalid, etc), in most States, have NO estoppel effect on the criminal case.  The fact of - or reason for - “winning your license back” is legally irrelevant in the criminal case.  This part of the case has no effect on the license case and vice-versa.  Unless, of course, you win the license back and THEN get convicted of the charge.  This agency can then revoke the license based on the conviction anyway.  

      Further, a person can expunge a criminal record of any charge (including a DUI charge) if acquitted, but, in most States, nothing can remove the records kept at this agency concerning the arrest, breath test failure or refusal, and/or revocation of license relating to a DUI.  Those are there for the life of the person and will continue to be used against him/her.  Moreover, any appeal from a DUI charge flows to the Oklahoma Court of Criminal Appeals.[8]  Therefore, a person could conceivably have the ENTIRETY of this branch of government (the State’s court system) involved with reviewing his illegal acts: license appeal at the Supreme Court and the criminal conviction appeal at COCA.   And, regrettably, the two high courts can - under the present status of the law - give diametrically opposed rulings on the same issues![9]   No other crime, no other prohibited or controlled act, OR any other issue or topic within our law can place a person in a position such as this.[10]
     DUI, further, provides the person with special & unique punishments specific to that crime.  The Victim’s Impact Panel (a course to hear how DUI has negatively affected them & others) was created JUST for DUI offenders.   DUI Schools similarly were created just for them.   One or both of these are now required in the person’s sentence.   DUI offenders must be assessed as to how much of an alcohol problem they have BEFORE they can be sentenced. The recommendation(s) from this assessment MUST be completed and followed by the person as a part of the sentence in the criminal part of the case, AS WELL AS, requirements of reinstatement of the person’s driver’s license.  Judges do not have the option to NOT order the recommendations of that assessment.  Ignition interlocks on the vehicles of these persons was “invented” just for them.  These can be part of the criminal court’s order OR definitely part of any “work permit” to allow him to continue to drive while his license is revoked. And, any person who has a chemical test result of .15% BAC or higher is REQUIRED to complete an in-patient alcoholism treatment.[11]    No other crime has such additional and specialized punishments.  These are all unique to DUI.
                                                                             
DUI - an Unique & Specialized Governmental Response
     This field of law has produced some unique and specialized responses at all levels and branches of the government.  The legislature modifies some statute affecting this field of law with every term it meets.  The Federal government has blackmailed the States into lowering the presumed level of intoxication from .10% to .08% by withholding matching highway funds if they did not.  The same thing occurred with the extended LENGTH of license revocation AND the elimination of “work permits” for persons who have the licenses revoked for second and subsequent DUI arrests.  Precious few, if any, other areas of law have as frequent and constant tightening and expanding of response to a violation of it by the legislature as the field of DUI law.
     The law enforcement or executive branch has similarly responded.  Specialized training for officers for DUI arrests is now standard in their initial academy training.[12]   Specialized schools have been created for prosecutors and toxicology lab employees specifically for DUI.[13]   Specialized agencies have been created just for DUI.  At the national level, the National Highway Traffic Safety Administration was formed.  In Oklahoma, we have a free standing agency, the Board of Tests for Alcohol & Drug Influence, which is exclusively for this field of law.   Federal law enforcement grants have been common since the 1970’s, such as Alcohol Safety Action Project [14] to attack this area of law, and remain available as this is written.  Most first time prosecutors are commonly started in this field of law and it is in this area that their first specialized training occurs.  This branch has aligned itself with science to create more and tools in response to this field of law unlike any other field that can be imagined.[15]   Although such specialized response may have occurred in some other areas of law, none compare to the vast number and depth of permeation within all ranks of this part of government as those for this field of law.
     The courts or judicial branch have also responded in kind.  However, their response has been perhaps the most far reaching and disturbing.   In affirming the OTHER two branches of government’s responses, more rights have eroded due to the courts’ responses in this field of law than any other.[16]  There has almost been created a “DUI exception” to the constitutions of the nation and states:  roadblocks looking strictly for drunk drivers (4th Am.); the presumption of guilt based on a machine’s result; the removal of the right to counsel prior to giving evidence against yourself (the breath test)(6th Am.); the right to remain silent when requested to take the test (5th Am. - Such “refusals” are not within this right and can be shared with the fact-finder in the case.); the absence of the right to NOT give evidence against yourself by way of a chemical test in a fatality DUI case (The person can be held down and blood forcibly withdraw from them WITHOUT a court order.); the denial of jury trials for DUI cases in some states in the U.S.; and, the government twice punishing of the offender by both criminal actions and revocation of driver’s license for the same act.[17]   These are in addition to those that are listed above that could be argued as other rights lost. 
DUI - an Unique and Specialized Defense  
     This area or field of law, since Mothers Against Drunk Drivers began its push in the ’70’s and the government’s initial - and continued -  responses to it becoming more and more specialized, the defense thereof - and the responsibilities of a lawyer in that position - has become more specialized.  This field of law can not stand without the science and pseudo-science that is interwoven into all aspects of it.  The crime and all collateral effects are grounded in the chemical test result.  The probable cause for the arrest is almost always grounded in the field tests which have been given the “aura of scientific reliability”.   A lawyer must now have training in not only what has always been thought of as “the law”, but also human physiology, neuro-opthomalogy, infra-red spectroscopy, fuel cell technology, inner-ear & balance, enzymatic blood testing, and gas chromatographic blood testing, to name only a few.  However, very few have this training or even see it as necessary.[18]
Consequently, various organizations were formed at the state level in many states to educate defense attorneys.[19]   Perhaps the first national wide attempt at this education was with the Mastering Scientific Evidence in DUI Cases program started in the early 1990’s.[20]    This has been  conducted annually ever since. 
     However, a nation-wide push - like those of MADD and the government - was needed and the National College for DUI Defense was formed.  In 1995, a group of attorneys formed this organization to respond to all the above as to provide lawyers with training and education concerning what had become a specialized area of law.   The purpose of this college was to provide the education and knowledge that is referenced above and necessary to defend persons caught up in this field of law.[21]   NCDD now provides no less than two (2) training seminars in the nation annually involving the most knowledgeable lawyers and scientists in the world.  It has encouraged the development of other entities which now provide specific and specialized training for lawyers such as SFST administration AND SFST trainer courses, a blood test training course, and breath machine training courses.   It has created a certification program for attorneys in this field of law.           
     The membership of this organization is made up of lawyers who have limited all or most of their practice to this field of law.  It’s membership contains almost every author of any national or state level book on DUI Defense.  Its members are not just defense lawyers.  They are trial judges, appellate judges, and scientists.  Its membership is found all over North America, Great Brittan, and much of Europe.  
Like the National Highway Traffic Safety Administration (NHTSA) has become authority in law enforcement in this field of law, NCDD has become THE authority in DUI Defense.  The National Association of Criminal Defense Lawyers does not conduct a DUI seminar without NCDD’s assistance.  In fact, one of the Board of Regents of NCDD is in charge of all DUI related topics within NACDL.  The U.S. Supreme Court requested an amicus brief from NCDD in a recent roadblock case.[22]   The press approaches NCDD on issues of DUI.[23]  The American Bar Association has even approached NCDD to assist in the establishment by the ABA of DUI Defense as a recognized specialty area of law.
     Earlier in 2003, the ABA requested of NCDD a definition of what the specialty of DUI Defense might be.  The Committee(s) [24] concerning Board Certification of NCDD responded.  One of the co-chairs of each of these committees met with the ABA concerning the request.  The ABA adopted NCDD’s definition of DUI and created the specialization area of law for DUI Defense.  NCDD was authorized as the approving entity for Board Certification under this specialization for the ABA.  

     On the local level, the Oklahoma Criminal Defense Lawyers Association has been attempting to spread this education vigorously since I came onto that board of directors in 1999.[25]  Multiple seminars on DUI defense, field tests and breath tests have been conducted around the state since that time.  These have been some of the most well attended seminars in the history of that organization.

  SUMMARY

Therefore, the DUI field of law - the crime itself and its punishments, the government’s response to it, and the defense thereof - has risen to the level of uniqueness and specialization previously only recognized in few fields of law (such as Patent and Admiralty law).  The distinction(s) are only that it has not been “around” as long as either of these and it has not be historically viewed in that context.  However, today it is as unique as any area of law that is or has ever existed in the nation.  To see DUI as ANY OTHER way would be, in my opinion, intellectually dishonest.


       

[1]           A previous version of this article was published Spring 2004, Vol. 2, Issue 2, Q & A: The Newsletter of the Criminal Law Section of the Oklahoma Bar Association.
[2]           “DUI” will be used throughout this article.  It is intended to refer to not only the crime of Driving Under the Influence, but also,  incorporate any and all alcohol related traffic offenses AND any and all collateral problems, including, but not limited to, driver’s license revocations, etc.
[3]           This test is then used as evidence against him in the criminal charge AS WELL AS to revoke his privilege to drive.  The right to NOT give this evidence against himself OR to consult an attorney PRIOR to doing it is NOT available to a DUI arrestee.  Further, unlike ANY OTHER CRIME, the person’s refusal to give evidence against himself is EQUALLY admissible with the inference of guilt.  There is not a crime on the books that the government gets to tell the jury that he refused to do that BUT this one!
[4]           And, that means none.  Indeed, even murder or the most heinous sex charges that a person might face, the person still faces only ONE branch of government at a time: first the judicial branch, and THEN the executive branch (Department of Corrections).  If he is not convicted, he never has to deal with any of the other branches of government.  Never does the person face more than one of them at the same time, with the exception to DUI!
[5]           We’ll call it “this agency”.
[6]           The fact of whether you were driving under the influence is not at issue.  They do not have to prove that.  They only have to prove that the officer had reasonable grounds to believe you were. 
[7]           Unlike some of the readers’ States, Oklahoma has two (2) “high courts”: one for criminal matters; and, one for civil matters.
[8]           See footnote seven above.
[9]           This honestly is the case.  Under the Courts’ present ruling(s) on DUI in or on private parking lots, the Supreme Court and the COCA are inconsistent.  The Supreme Court ruled that no crime can be committed.  The COCA has ruled that it can.  Compare Justus v. Department of Public Safety, 2002 OK 46, 61 P.2d 888 with Houston v. State, 1980 OK CR 63, 615 P.2d 305.  Recently, the Supreme Court moved closer to the COCA in it’s holdings on this topic, but they are still at odds with them and are still not on the “same page”.  See Pletcher v. State of Oklahoma ex rel. Department of Public Safety, 2003 OK 117, 75 OBJ 32.  Of course, the legislature re-wrote the statutes after these cases and NOW there is no distinction as to whether you are on a public OR private road of parking lot. 
[10]          If the reader can think of something that challenges this statement or view of the topic of DUI, I would REALLY like to hear about it.  I have “racked my brain” trying to find ANYTHING that compares to it but can not.
[11]          This is the Aggravated DUI Statute.  If filed this way and convicted, in-patient treatment is required.  The Judge has no option but to do it, whether a person needs it or not.  To my knowledge, this is the ONLY such statute - and crime - in Oklahoma where the person MUST be sent to treatment.  This is the only crime in our law where a person is statutorily diagnosed with a disease to the extent of governmentally ordered treatments based STRICTLY upon a chemical test result.   Incidentally, in Oklahoma, this is the same level of alcohol that was the BARE MINIMUM for arrest only 34 years ago. 
[12]          Field sobriety tests, breath test operation, and general DUI “detection” are included.
[13]          A week long, and intensive, course,  The Robert F. Borkenstein Course on Alcohol, Drugs, and Highway Safety: Testing, Research, and Litigation is based at the University of Indiana, Bloomington and is perhaps the best known of these.
[14]          I was a probation officer under this project from 1977 through 1979 in the City of Oklahoma City.
[15]          Examples are the Standardized Field Sobriety Tests and the many breath testing devices on the market.  The only exception that MIGHT apply to this statement above is in the field of DNA.  And, THAT is now being applied to blood tests for alcohol and drugs for verification of whether the blood tested that gave a specific result is, in fact, the defendant’s in the case in question.
[16]          The only field of law that I can think of that compares here is that involving Sex crimes with its Sex Offender Registry.
[17]          The courts have ruled that the double jeopardy clauses of the constitutions of our states are not offended by this.  The license revocation has been defined as “remedial”, not punishment.  I have never had a single client who - faced with the fact that he could not drive to, from or during his work - felt that this was NOT punishment! 
[18]          More violations of the Rules of Competency and Preparedness in the ORPC, and mal-practice,  occur in this field of law than is known or imagined.  See Sifers, Charles L., Ethical Considerations in DUI Representations: “Simple” cases which are NOT so Simple, OCDLA’s The Gauntlet, Spring 2002, pp. 45-54.
[19]          Notably, Georgia’s Defense of Drunk Drivers, California’s Duece Defenders, and the Minnesota Society for Criminal Justice.
[20]          The originator of this, William C. “Bubba” Head and the graduates thereof, eventually even earned law enforcement’s respect in the scientific realm of this field of law.  This was evidenced by letting him attend THEIR highest comparable training in 2001 (the Borkenstein course referenced above) which has now had approximately 20 defense lawyers allowed to attend it.  I am one of those approximate 20.
[21]          Go to www.ncdd.com for more information on the College.
[22]          See Illinois v. Lidster, No. 02-1060.
[23]          Frequently interviewed on various issues on MS-NBC, CNN, etc.  I have been interviewed locally on Channel 4 in Oklahoma City.
[24]          There is a committee for the development of the board certification and procedure, as well as, a committee for recognition of NCDD’s certification process by national and state level entities.   I was  one of the four co-chairs of these committees, specifically the former.
[25]          And our defense bar needs it, too.  In review of a report to the Director of the DPS here in Oklahoma, by the head of the Driver Improvement Division thereof, in 2002 only 27% of all persons who failed or refused a chemical test requested a hearing to contest the revocation.  Only 6% of the total cases avoided revocation of the license.  That included officer “no shows” at these hearings.  This does not speak well of the defense bar in our state.

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