Oklahoma DUI Know Your Rights
THE COPS SAID I DIDN’T HAVE THE RIGHT TO TALK TO AN ATTORNEY
Your Constitutional Rights do not apply to a DUI
You can only protect your liberties in this world by
protecting the other man’s freedom.
You can only be free
if I am free.
CLARENCE DARROW
The Declaration of Independence begins “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness”.
The Constitution does not reserve or limit any of our rights because of a specific criminal charge. That means that someone accused of murder is entitled to the same rights as someone accused of writing a bad check. These rights apply to YOU as a citizen, not to a specific charge. This is the way it is ‘supposed to be’, but in the real world, IT IS NOT TRUE.
Our courts have continuously found ways to limit the Constitution and limit the rights of people accused of DUI. You will find the following statements difficult to believe, but they are true:
- If you are arrested for DUI, the officer will IMMEDIATELY seize your driver’s license and will not return it. This is a form of punishment and you have not even had an opportunity to talk with a lawyer, see a judge, or post bail. You ARE PRESUMED GUILTY even though the Constitution guarantees that you are to be presumed innocent unless proven otherwise — A DUI LIMITATION.
- You have the right to contest the revocation of your driver’s license. If you win the hearing to save your license, you may think that’s it, ‘I have heard of double jeopardy.’ Well, you still can lose your license from an adverse ruling in the criminal court — A DUI LIMITATION.
- If you are arrested, the Officer will rarely read your Miranda rights to you even though he will continue to question you. You have watched TV and know this is wrong—Not for DUI’s. The Court again has found — A DUI LIMITATION.
- If you are arrested and taken to jail for DUI, you should feel confident that you will be allowed to talk with an attorney prior to questioning or being asked to give incriminating evidence against yourself. This is true in all crimes except DUI, again — A DUI LIMITATION.
- If you are arrested and refuse to take a breath test, Oklahoma State law says that refusal can be admitted to a jury and a presumption of guilt attached. But— what about the 5th Amendment saying ‘I have the right to remain silent and it cannot be used against me?’ Again, — A DUI LIMITATION.
- If you are driving and are stopped at a roadblock, then questioned about drinking, you might easily think “Wait, you have to have a reason to stop me, this is not legal.” If they were looking for drugs, or stopping you for any other crime, you would be correct, but not if it is a DUI stop — A DUI LIMITATION.
- In most cases, if the government knowingly destroys evidence, that evidence cannot be used against you. In a DUI case, you are asked to take a breath test. The machine is capable of preserving the sample of your breath for additional testing. The Government, for monetary reasons and knowing there will be no punishment for destroying that evidence, has chosen not to maintain the sample, yet they are allowed to introduce it as evidence — A DUI LIMITATION.
- If you have a couple of quick drinks and are stopped within 5-10 minutes after leaving your house or a meeting, you may not be affected by the alcohol yet—but you still may be requested to take a breath test and as long as it is taken within 2 hours of your arrest, that is close enough for government work. It can be used against you and show a much higher alcohol level than what you had while you were actually driving. In effect, you will be guilty of being capable of committing a crime even though you were not intoxicated when stopped — A DUI LIMITATION.
- A man’s home is his castle! We have heard this many times and you know the Constitution says the government must have a search warrant to enter your home, even for a murder investigation. A recent California case allowed the police to enter a home for a misdemeanor DUI investigation without a warrant. This was based on a neighbor’s tip; that is, the police did not even see the person driving, they just entered the home without a warrant. Surely, this would not be allowed. Sorry — A DUI LIMITATION.
- You have heard of double jeopardy. The government will start two proceedings after a DUI arrest–an administrative proceding and a criminal proceeding. You will be required to respond to both and a loss at either will result in you losing your right to drive. That’s right, the government gets two chances to take away your license — A DUI LIMITATION.
- The Constitution requires a warrant before evidence can be forcefully taken. In a nearby state, if you are stopped, asked to submit to a breath test and refuse (remember the 5th Amendment and your right not to incriminate yourself), a ‘Batmobile’ will be called to the scene, you will be strapped down and a police officer will take your blood on the spot. Yes, this is happening in America because we have —– A DUI LIMITATION.
- You can be convicted of DUI even if your driving was not impaired. The law has what we call a ‘per se’ provision. That means if the machine says you are .08 or more, you are presumed guilty even if your driving was not affected. The government will not have to show your driving was impaired, just that a machine reached a certain number. You just thought you had a right to be presumed INNOCENT — A DUI LIMITATION.
- The Constitution guarantees an accused the right to face the accuser in court before a jury. This is the Right of Confrontation. In DUI cases, the accuser is most often a machine that makes mathematical conversions to calculate a number. This mathematical conversion is secret because the manufacturer considers it ‘proprietary’. Math is generally considered to be an absolute and no one owns it, but in DUI cases you will not know the method used to compute your number because it is the proprietary property of the manufacturer — A DUI LIMITATION.
You get the idea. DUI has become a social crime and no politician will speak against the charge or means of applying penalties if he wishes to remain in office. We also continue to move away from the problem– intoxicated drivers. The limits are lower and you can be convicted for a number that has no relationship to your driving abilities.
None of this addresses the repeat offenders who are heavily intoxicated but it does move towards a new form of prohibition in our country. One state has lowered the number to .04 for repeat offenders and it is easy to envision a nationwide move to lower the number to .04 for all drivers. In addition, DUI’s are the ‘cash cow’ for the court system. Court costs for a first time DUI are higher than for a felony drug possession. There are numerous reasons your case is being placed on a ‘fast track’. There are many powerful forces striving to increase the number of DUI convictions throughout the nation– all the more reason you need an experienced DUI ATTORNEY.