Oklahoma DUI & Your Driver’s License
I NEED A TICKET TO RIDE
What about my driver’s license?
A life spent making mistakes is not only more honorable,
but more useful than a life spent doing nothing.
GEORGE BERNARD SHAW
An arrest for Driving Under the Influence (DUI) or Actual Physical Control (APC) also carries civil consequences for the person charged. This is separate from the criminal case in which the municipal prosecutor or the District Attorney’s office is attempting to obtain a conviction, monetary fines, and possibly jail time. Immediately after an arrest for DUI or APC, the Oklahoma Department of Public Safety will start civil administrative proceedings against you to suspend your Oklahoma driving privileges.
The Oklahoma Department of Public Safety (DPS) can only suspend or revoke your Oklahoma driver’s license or Oklahoma driving privileges. If you possess an out of state driver’s license, please see the following sub-section entitled “Out of State Licenses”. If you possess a commercial driver’s license (CDL), please refer to Chapter 10 “COMMERCIAL DRIVERS LICENSE”. If this DUI/APC is your first, or if you have not had a revocation within the last 10 years, then the Department of Public Safety will attempt to suspend your driving privileges for 180 days. Under Oklahoma law, this suspension can be modified.
If you have had a prior suspension or revocation within the previous ten years, then the Department of Public Safety will attempt to suspend your driver’s license for a period of one year. Under Oklahoma law, this suspension can be modified.
On the third suspension or revocation during a ten year period, the Department of Public Safety will attempt to suspend your driver’s license for a period of three years. This period is modifiable under Oklahoma law.
Additionally, Oklahoma passed the Erin Swezey Act in November 2011 which requires the installation of an interlock for an additional period after reinstatement of your driver’s license. If your revocation was for 180 days and you refused the test or tested .15 or more, you will be required to have the device installed for an additional 18 months after the six month suspension.
If your revocation was for one year, then you will be required to have an interlock for an additional 3 years regardless of the BAC level or refusal. Similarly, if your revocation was for three years, than an additional 5 years of the interlock will be required after reinstatement.
In Oklahoma, there is no such thing as a “work permit”. Other than winning your license back through the license procedures, the only way to get driving privileges is to agree to a modified license which, except for certain exceptions, requires the installation of an ignition interlock device.
After the suspension period, to get your license reinstated, you must obtain an Alcohol Assessment from a Licensed Professional Counselor. The price of the assessment is state mandated and costs $160 at the time this book was published. You must complete all recommendations made by the assessment before your license will be reinstated. After completion of the requirements, you must take the completion certificates back to the assessor who will provide a completion form for the Department of Public Safety. The proof of completion along with a reinstatement fee of $300 is then taken to the Department of Public Safety. If you are a repeat offender, the Department may require additional documentation of sobriety as well as requiring additional requirements of maintaining an interlock on your vehicle. When reinstating, they will ask when you last had a drink and if you admit to even a drop in the previous year….they will not reinstate your license. (This is applicable to those qualified as an excessive user which is determined by number of prior revocations.)
In Oklahoma, modified licenses are permitted under 47 O.S. § 755. The Department may modify Class D driving privileges only. A Class D license is the same as an operator’s license. The Department of Public Safety is required to make a determination that no other adequate means of transportation exists as a result of your driving privilege being revoked or denied.
Modified licenses are not automatic and there are circumstances where the Department may not agree to a modified license. For example, if your suspension involved allegations of an assault on the arresting police officer or an attempt to elude the police officer, the Department probably will not agree to the modified license. If the Department denies a modification to a driver who is statutorily eligible, this decision may be appealed to the District Court.
If the Department agrees to a modified license, you will be required to install an ignition interlock device in your vehicle. The expense of the device is, of course, to be paid by you, the licensee. There are several companies that will install and monitor the device. These private companies charge an installation fee and a monthly monitoring fee for the ignition interlock device. The Department will also charge a $175 modification fee that will have to be paid with a money order or cashier’s check before the modified license will be issued.
If you drive your employer’s vehicle, your employer will be required to place an ignition interlock device on any employer owned vehicles driven by you. This requirement can be avoided if your employer requests that the device not be installed on your employer’s vehicles. This request must be made in writing on the employer’s letterhead and must be notarized. This is only applicable to those with 180 day revocations.
If you are self employed or own any part of the company or corporation you work for, the exception of not installing the ignition interlock device because it is an employer owned vehicle doesn’t apply. The exception also doesn’t apply in cases where the employer is a relative.
Preventing the Suspension
The suspension of your driving privileges can possibly be prevented by challenging the suspension. To challenge the suspension, it is necessary to request an administrative hearing within 15 days of being served notice of the suspension or revocation. This notice is usually given when the person is arrested as it is printed on the Officer’s Affidavit. However, on the Affidavits printed from the Intoxilyzer 5000 form, it is not immediately obvious as it is hidden on the reverse side of the Officer’s Affidavit. On the newer Intoxilyzer 8000 form, it is located on the front of the document. The Officer’s Affidavit is given to you after you refuse to be tested or you are tested and the result is over the legal limit. In cases of blood tests, the notice is sent to you at the address the Department has on file (usually the same address that is on your license). The notice resulting from a blood test is sent after the Department receives notice from the police agency that your blood tested over the legal limit or contained drugs.
After the Department receives a request for an administrative hearing, the Department will place the suspension on hold until the hearing is held. During this time, you will have the same driving privileges you had before your license was taken, including commercial driving privileges. After the Department receives a timely request for an administrative hearing, the Department will set the date for the administrative hearing to take place within approximately three to nine months.
It is not necessary for you to appear at the administrative hearing if your attorney appears on your behalf. If no one shows on the licensee’s behalf, the suspension will be upheld and the suspension will begin at a date certain set by the Department. If the arresting officer or the breath testing officer fails to appear, then the suspension is generally set aside for lack of a necessary witness.
If all the parties appear, then the Administrative Hearing Officer (a non-lawyer employed by the Department of Public Safety) will hear the issues and make a determination or ruling usually within two to three weeks. This ruling will be sent by mail. The issues at the administrative hearing are whether the arresting officer or officers followed the Board of Tests Rules. The officer(s) must show probable cause for making contact with the licensee, probable cause for the arrest, notification of the Oklahoma Implied Consent Law, and a valid refusal or a test administered in accordance with the Board of Tests rules.
The burden of proof is on the police officer and the standard of proof is the preponderance of the evidence. Preponderance of the evidence means it is more likely than not that you were driving under the influence or in actual physical control of a motor vehicle under the influence. This is a lesser standard of proof then the criminal standard of proof beyond a reasonable doubt.
Unfortunately, there are attorneys who tell their clients not to bother with the administrative hearing because they can not be won. This is malpractice in the authors’ opinion as both authors routinely get their clients’ licenses back after successfully challenging the revocation. Any attorney that advises you not to request the hearing and challenge the revocation should be avoided at all costs. The administrative hearing is the opportunity to cross-examine the officer under oath to discover the weaknesses or strengths of the government’s case against you. Failure to challenge the revocation and not cross-examining the officer at the hearing is the equivalent of not reading the police reports.
If your license was suspended or revoked when you were arrested, it is still very important that you request the administrative hearing. A new suspension will add to your license suspension time. Also, in cases of possible repeat offenses, you may be looking at jail time in the criminal case and thus, it is imperative to have this additional opportunity to cross-examine the officer under oath.
District Court Appeals
If the Department sustains or upholds the suspension after an administrative hearing has been held, the licensee has the right to appeal that decision to the District Court. Under the current administration at the Department of Public Safety, most of the administrative hearings held at the Department are a farce and you will not really get a fair hearing until we file the District Court Appeal. The appeal must be filed within thirty days from the Department’s Order of Revocation/Suspension. (Ie…notice that the Department ruled against the licensee). The licensee must pay the filing fee and post a bond with the Court Clerk of the District Court. In some circumstances, the Department may agree to a modified license after you file the District Court Appeal.
The Court will hear the matter on a set date and the Department must show that the arresting officer complied with the Board of Tests rules. But, the burden is on you to show that the denial of the modification leaves you with no adequate means of transportation and thus, creates a hardship for you. If the Court grants the modification, then you will still be required to install the ignition interlock device discussed above and pay the modification fee. The Court does not have the power to order a modified license without an ignition interlock device except as previously explained for employer owned vehicles.
If you possess a driver’s license from another state, then Oklahoma can only suspend or revoke your Oklahoma driving privileges. Most states belong to the Interstate Driver’s License Compact. This compact requires all member states to report driving convictions or departmental actions to the licensee’s home state. The home state is the state that issued the licensee’s license.
Once the home state is notified, it may take action against your license. If the home state takes action, it will send notice to you at the address the home state has on file. This notice will usually advise you of the home state’s action. The notice may or may not have the licensee’s appellate rights listed. Once this notice is received, you should immediately contact a lawyer in your home state to explore ways to prevent license suspension. The authors are able to refer our clients to other qualified DUI attorneys that we have taught or trained with at the national or international level.
Each state handles license suspensions differently. If the suspension in Oklahoma is the result of not successfully challenging the suspension at the administrative level, then the suspension is an administrative suspension. If the suspension in Oklahoma is based on a conviction for DUI or APC, then the suspension is a conviction suspension. This is an important distinction as some states will not suspend your license based on an administrative suspension from Oklahoma. Most states will suspend your driver’s license if you are convicted of DUI.
For example, if you have a Kansas license and are arrested for DUI and you are not successful in challenging the administrative suspension at the Department of Public Safety, Oklahoma will suspend your Oklahoma driving privileges. However, if you receive a deferred sentence in the criminal case which results in the DUI criminal case being dismissed, Kansas will not suspend your license because it requires a conviction before it will suspend a Kansas license for an out-of-state DUI. However, you should be able to drive in all states other than Oklahoma. At the end of the revocation period, you will still need to go through the reinstatement process as you will not be able to renew your out of state license if you are suspended in Oklahoma.
You will not be able to drive in Oklahoma until the suspension period ends and you complete the reinstatement process. If you need to drive in the State of Oklahoma during the suspension period and you are eligible for a modification, Oklahoma may grant you a modification.