Murder Trial - David Ellis

After a 5-day Murder Trial, Brian Boeheim and Ciera Freeman were able to convince the jury that David Ellis did not murder Michael Shane Floyd with malice aforethought (premeditated), but instead the stab wound that ended Mr. Floyd's life was Manslaughter Due to Anger or Fear.

Although Mr. Ellis was sentenced to Life in prison, due to his prior criminal convictions, Mr. Ellis was happy that his version of the events was heard and that the jury refused to believe the lies that some witnesses tried to tell from the witness stand.

After the verdict, Mr. Ellis thanked both Mr. Boeheim and Ms. Freeman for their aggressive and thorough cross-examination of the State's witnesses in order to catch them in a series of fabrications and exaggerations.

Tulsa World News Article

Hard fought trial results in a Not Guilty Verdict

Brian Boeheim and Ciera Freeman successfully defend this young man who was facing decades in prison.

Tulsa Man Acquitted Of Rape, Sexual Assault: The Latest

A Tulsa man is making plans for the future after a jury found him not guilty of rape and sexual assault.

FOX23.COM

 

Deferred Prosecution – It’s About Money

What is Deferred Prosecution?

Beginning in June of 2017, the Tulsa County DA began offering Deferred Prosecutions.  This is a contractual arrangement to not file charges on you even though you have been arrested. Simply put, if you will sign up for voluntary supervision, pay all of your fines and fees upfront, then they won’t even file charges against you.  Sounds like a dream come true, right?  Maybe not, keep reading.

Who is eligible?

This contractual arrangement is only available to people who have a clean record and no criminal history.  As you have read above, all the fines and fees must be paid in advance, so this will seriously limit the people that can take advantage of this program.

How much will it cost?

The supervision fee will be $240.  On top of that, you will have a fee of between $200 and $400 for each charge you were booked in on.  So, as an example, if you were arrested on Possession of Marijuana, No Driver’s License, and No Insurance; you would be looking at a total of  $1065.00 total up front before you can take advantage of this program.

What does the supervision look like?

Tulsa COURTS will supervise you, which is the same group that supervises people for Drug Court.  It will be for a minimum of 6 months, but could be 2 years.  You may have to do a Drug and Alcohol Assessment, Random Urinalysis Drug Testing, Restitution, Mental Health Evaluation, Community Service Hours, Stay Away Orders, GPS, or SCRAM Alcohol Monitoring.  Oh yeah, that is all at your cost.  Also, they can also come visit your home or place of employment.

What happens if I fail?

Even if you only have supervision for 6 months, if you run into trouble anytime within 2 years, you will not only have to deal with those charges, but the DA will file these old charges on you too.  They can also file the charges on you for any form of non-compliance.

Seems like a decent deal, what is the catch?

Your biggest concern is that you are waiving several of your Constitutional Rights!  First, you will have to sign an agreement that says that the State of Oklahoma has sufficient evidence to achieve a conviction.  Next you are waiving your rights to speedy prosecution and a speedy trial.  Also, you will be waiving the Statute of Limitations.  Finally, you will be waiving your rights to counsel.

Is there anything else I should know?

Yes.  You are also waiving your ability to challenge the lawfulness of your arrest.  You are also waiving your ability to challenge the search of your vehicle, home or person.

What should I do?

You have a right not to be singled out.  You have a right not to be harassed because of who you are or what neighborhood you come from.  You also have a right to your privacy.  Hire a qualified attorney that is not afraid to fight for your rights.  If the DA was going to give you the Deferred Prosecution then they most likely will still offer you Deferred Probation, which is practically the same thing without waiving all of your rights.

Why is the DA offering this?

It is about the money.  This method of handling cases will shift money from the Court Fund to the DA Fund.  This isn’t about helping you, but instead a way of funding the DA’s Office.

Robbery in Oklahoma

If you are accused of robbery, there could be very significant penalties at stake. While most theft crimes are considered property crimes, robbery is considered a violent crime against the person.  Depending on the type of robbery with which you are charged, you could be facing up to life in prison.

What is Robbery?

Someone who discovers their property missing may say they have been “robbed.”  This is actually larceny or burglary.  While larceny and burglary generally depend upon stealth, robbery is about the force or fear used to commit the crime.  Robbery is defined by Oklahoma law as “a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (21 O.S. § 791).  The state divides robbery into several classifications, including first degree, second degree, conjoint, and armed robbery.

First Degree Robbery

Defined in 21 O.S. § 797, first degree robbery occurs under one or more of four specific circumstances:

1.    inflicts serious bodily injury upon the person;

2.    threatens a person with immediate serious bodily injury;

3.    intentionally puts a person in fear of immediate serious bodily injury; or

4.    commits or threatens to commit a felony upon the person.

First degree robbery is a felony punishable by a minimum of 10 years in prison. It is also an “85 percent crime,” under O.S. 21 § 13.1, a person convicted of this crime must to serve a minimum of 85 percent of the sentence before the possibility of parole.  With that said, there is case law that brings the minimum down to 5 years, but judicial notice should be invoked.

Second Degree Robbery

Second degree robbery does not carry the same requirement that the force results in serious bodily injury or that the fear is the intentional threat of serious bodily injury.  Second degree robbery is a lesser offense than first degree robbery, and it is not an “85 percent crime”.  Robbery in the second degree brings a possible sentence of up to 10 years in prison.

Conjoint Robbery

Conjoint robbery, or robbery committed by two or more people conspiring or acting together to accomplish the robbery is a serious felony where each person involved faces 5 to 50 years in prison.  Like first degree robbery, conjoint robbery is an “85 percent crime”.

Armed Robbery

Robbery or attempted robbery with a dangerous weapon or imitation firearm (21 O.S. § 801) carries a minimum sentence of 5 years in prison.  It is important to note that this law also includes failed attempts.  It does not matter if the gun was not loaded, or even if the “firearm” used was a fake.  Because the motive behind the use of an unloaded or imitation gun is still “force or fear,” it is considered armed robbery even with a toy gun.  Robbery or attempted robbery with a dangerous weapon or imitation firearm is an “85 percent crime”.  

Robbery is a Serious Felony

Robbery charges are very serious and the DA’s office prosecutes these cases aggressively.  You or your loved one could be facing decades in prison, mandatory minimum sentencing, and even registration with law enforcement for placement on the Oklahoma Violent Offender Registry.  Call us today at 918-884-7791 to discuss how we can defend you or your loved one from a Robbery charge.

Does Trump’s Executive Order affect my criminal case?

PRESIDENT TRUMP’S EXECUTIVE ORDERS

On January 25, 2017, President Trump signed two executive orders (EOs) on immigration policy. These orders directed the Department of Homeland Security (DHS) to enlarge the deportation dragnet and further militarize the southern border of the U.S.  The administration expanded the group of people who will be priorities for deportation, specifically noting “removable” immigrants who have been accused or convicted of committing criminal offenses. The EOs also reflected a focus on having local law enforcement agencies perform the functions of immigration officers through formal agreements and by denying federal funds to “sanctuary jurisdictions” that do not comply with requests to help Immigration and Customs Enforcement (ICE) detain and deport immigrants.

Do the EOs change who is legally subject to deportation “removable”?

No. The existing immigration laws dictate who is legally “removable.”  Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions.  The President cannot redefine who is legally “removable” without an act of Congress.  However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.

Do the EOs change whom ICE will seek to detain and deport?

Yes.  Some individuals who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction.  Of note, any “removable” person who has been previously accused or convicted of a crime is now a priority for deportation.

Immigration authorities will prioritize deporting the following categories of “removable” people:

  • Those with any criminal conviction(s);
  • Those with previous criminal charges – even if such charges have not been resolved;
  • Those believed by immigration officers to pose a threat to public safety or national security;
  • Those who have a final order of removal; and
  • Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.

For those currently in the criminal legal system, it is important to note the EO makes no distinction between the types of crime or level of offenses that will make a person a target for deportation.  Also, it is likely ICE will prioritize people with prior convictions regardless of how long ago the conviction occurred or the level of the prior conviction.

Should I bother hiring a good Criminal Defense Attorney?

Yes! The executive orders confirm that immigrants with convictions will be targeted as a top priority for deportation.  It is crucial to not just negotiate dispositions, but fight them to dismissal in order to minimize immigration consequences and exposure to enforcement agents. This applies to immigrants with and without lawful status!   Make sure to hire a Criminal Defense Attorney that understands that any conviction even one that includes a deferred sentencing, probation, and expungement can still make you a priority for deportation.

Am I safe if it is a Municipal case?

No!  Dispositions considered to be minor or even “non-criminal” can make your client a priority or deportation. For example, DHS considers municipal violations to be misdemeanor convictions. It is important to hire a attorney who is well versed in criminal law and understands that the only way to keep you in the United States is to fight your case and have it dismissed.

What does this mean?

Whether you are documented, or are here without papers, it is important that you stay out of the legal system.  Don’t drink and drive, stay away from illegal controlled drugs, walk away from fights, and don’t carry a gun.   But, if you are arrested, your first call is to a highly qualified criminal defense attorney who is not afraid to fight your case, because the only chance you may have to stay in this country is to challenge the charges and get them dismissed.

Brian J. Boeheim, Esq. --- Boeheim | Freeman PLLP --- 918-884-7791

 

Are Guilty and Not Guilty My Only Options?

When you are charged with a crime you have five options in how you plea:

  • Not Guilty – the defendant claims innocence, and the case goes to trial before a judge or a jury of his/her peers.
  • Guilty - the defendant admits to committing the crime and accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial
  • Blind - the defendant admits to committing the crime and allows the judge to determine the sentence, avoiding a jury trial
  • No Contest (Nolo Contendere) - the defendant neither admits nor denies guilt, but acknowledges that the evidence is sufficient to convict, should the case go to trial.  The defendant accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial.  Not all judges will accept a no-contest plea, so make sure your attorney is sure that the judge will accept this type of plea.
  • Alford – the defendant claims innocence, but acknowledges that the evidence is sufficient to convict should the case go to a jury trial.  The defendant accepts the prosecutor’s offer of an agreed upon plea deal, avoiding a jury trial.  There are several problems with an Alford plea.  First, it has an innocent person accepting punishment on a crime they claim they did not commit.  That flies in the face of the entire concept of innocent till proven guilty.  Second, the judiciary, probation, and a parole board all frown on someone that, in their eyes, refuses to take responsibility.  So, although it may seem like a way to claim one’s innocence, it can sometimes make the punishment even greater down the road.

Guilty pleas, no contest pleas, and Alford pleas all result in criminal conviction without a trial by jury.  Before entering any plea, it is critical that the defendant fully understand his or her rights under the law and the possible ramifications of each type of plea.  This is why it is very important to find an attorney who understands criminal law and will take the time to explain your options fully and completely.

Civil Asset Forfeiture

There have been several headlines of late regarding civil forfeiture.  It is a fairly complex legal and social issue, and by no means am I an expert, but I thought I would throw my two cents in an attempt to clarify some confusion my clients have voiced.  Let me try to answer three questions: 1) What is civil forfeiture? 2) Why is it making news? And, 3) How might it affect you?

What is Civil Asset Forfeiture?

Civil Forfeiture is when law enforcement and the courts work in concert to take an asset from a person they believe used or acquired that asset from criminal activity.  When I say asset I mean cash, bank funds, personal property (cars, boats, computers, etc.), or real property (houses, buildings, or land).  The point of this is prevent drug dealers from benefiting financially from activities, and to use their assets to fund the war on drugs.  Let me give you an example:

A person transporting drugs gets stopped for speeding.  The person has warrants, so they are taken into custody.  When the vehicle is legally searched (inventoried) before it is towed, the police find a large quantity of heroin.  The person is arrested and convicted for trafficking heroin.  The police then file for civil asset forfeiture of the vehicle, any cash, and any other personal property that is in the vehicle.

Why is it making news?

Recently there have three big changes.  The first one happened about six months ago.  That is when the Department of Justice (the Feds) decided to get out of the business of civil asset forfeiture for States.  Up to this time, the DOJ would handle all of the Asset Forfeiture and then give a sizeable cut back to the state police agency that originally confiscated it.  For several reasons, the DOJ decided that it wanted out of this business and the State’s had to take over this work, but they wanted to make it easier so they have been passing laws and judicially making laws to make it very easy to make this asset grab.

The first one was in the State of Oklahoma.  The legislature passed a law that allowed the State Troopers to carry modified credit card swipe machines.  The purpose of this is to allow them to swipe debit cards, gift cards, and cash cards and take every cent on them.  Literally they could take every cent off your Starbuck’s gift card, and the worst part is that the charge on the card will look anonymous.  On the positive side, they can’t reach into actual bank accounts, but if you received a cash bonus from your employer on a Visa/MC Debit card, they can siphon it dry.  Now they claim they are only authorized to do this if they have arrested you of a crime that you could profit from, but this hasn’t been defined anywhere.  Also, what about due process?  How are they able to take your assets without a conviction?  What happened to innocent until proven guilty?

This leads us to the second recent Court made law, out of Texas.  The Texas Supreme court has decided that Civil Asset Forfeiture is above the U.S. Constitution.  They decided (http://www.txcourts.gov/media/1386417/140692.pdf) that if the criminal charges are thrown out due to an illegal (unconstitutional) search and seizure then it is still okay to keep all of the assets confiscated, in this case a Lincoln Navigator.  That’s right, the Texas Supreme Court has created law by saying that Assets Forfeited as part of an arrest, does not have to be validated by a conviction.  What was I saying about innocent until proven guilty?

How might this affect you?

I don’t think I have to go into any great detail at this point.  I think it is obvious, that if you are arrested, you have a chance of having all of your assets confiscated and forfeited to the State.

What can you do? 

First, and foremost, stay out of trouble and away from drugs because that is the target these laws are attempting to hit.  Second, contact your State representatives and let them know that you like the U.S. Constitution and would prefer it if they would stop coloring outside the lines.  This type of freelance interpretation of the U.S. Constitution stinks, whether done by Liberals or Conservatives it makes for fewer freedoms and more State and federal control.  Due process and the belief that people shouldn’t be punished until convicted must stay a cornerstone of our criminal legal system, otherwise we might as well have lost the “Cold War” or WWII for that matter.

Can They Search You?

The simple answer is, YES!  The police can always search you.  The real question is whether they can use what they find against you in court.  Generally speaking, the U.S. Constitution and the Supreme Court have clearly said that warrantless searches are unconstitutional and any evidence found during an unconstitutional search shall be excluded as evidence in criminal proceedings.  There are a few exceptions to this rule.

            The first exception is if you give the police consent to search your person, your vehicle, or your home.  This consent must be clear, but they can take something as small as a head nod as consent.  This gets to be a very complex issue when you bring language barriers into play.  The safest bet is to just say “NO” to any and all requests to search.

            The second exception is when the police have probable cause.  Probable cause means that there is sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime.  The idea here is that it may take too long to obtain a search warrant, and evidence may be removed or destroyed, so the Supreme Court allows police officers to search a person or a vehicle if a warrant would have been given anyway.  Probable cause can be deduced by police observations, such as the smell of alcohol, the smell of marijuana, or seeing contraband (drugs or a gun) in plain view. The best way of avoiding this type of search is by not giving them a reason to stop you.

            The last exception we’ll discuss in this article is an inventory search.  This happens when your vehicle is impounded for towing by the police.  It is an inventory of the contents of your vehicle.  Any contraband they find can be used against you in a court of law.  How can you avoid this?  Make sure that you pull into a parking lot or private driveway.  The police can only impound and tow your vehicle if it is a safety hazard, like on the roadway.  If it is on private property, like a store or gas station parking lot, they cannot impound your vehicle and therefore any evidence they find as part of an inventory search is inadmissible in court.

            We have only touched the surface of the issues surrounding search and seizure of evidence.  This is just another reason to hire a lawyer who is well versed in the 4th Amendment to prevent the police from violating your Constitutional Rights.

The 14th Amendment Protects Illegal Immigrants

With the Presidential primaries beginning, one of the hot topics is whether  “immigrants without papers” have the protection of the U.S. Constitution and the Bill of Rights.  The 14th Amendment and the U.S. Supreme Court say YES!:

The 14th Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The key word in this Amendment is the word “person”.  There it is as clear as day right after the term citizens.  This leaves little doubt that the Amendment was clearly meant to include every person living within the jurisdiction.  That means everyone, including those without papers, and the U.S. Supreme Court seems to agree.  In Zadvydas v. Davis (2001) the U.S. Supreme Court said that "due process" of the 14th Amendment applies to all aliens in the United States whose presence maybe or is "unlawful, involuntary or transitory."  Twenty years before Zadvydas, the Supreme Court ruled in Plyler v. Doe (1982) that Texas could not enforce a state law that prohibited children without papers from attending grade schools.  Specifically they said, “no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under immigration laws, an alien is a 'person' in any ordinary sense of the term ... the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.”  In Almeida-Sanchez v. United States (1973) they concluded that all criminal charge-related elements of the Constitution's amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, legally or illegally present.

Even as far back as the late 1800’s the U.S. Supreme Court was clear about the rights of immigrants without papers.  In Yick Wo v. Hopkins (1886), the court ruled that: States cannot deny equal justice is still under the Constitution.   And, in Wong Win v. United States (1896), the court ruled that all persons within the territory of the United States are entitled to the protection by the 5th and 6th Amendments, even aliens.

In summary, immigrants without papers have the full protection of due process under the U.S. Constitution by way of the word "persons" in the 14th Amendment.

The Police Can Lie to You

The law allows a police officer to use deception in an investigation.  This means that during an interview by police, they can make false claims about what witnesses have seen or evidence they have recovered.  They can say just about anything they want in order to get a confession as long as the deception does not result in what would be considered coercion sufficient to make someone confess to a crime they did not commit.  Let’s be clear, this means that they can get away with almost any lie just short of telling you a loved one has died.

For instance, a detective might tell a burglary suspect that they have a witness who saw them enter a house, or that they found the suspects fingerprints inside the house.  If the suspect knows he had never been in the house, then you might think there is little chance of getting a confession.  But, recent studies have shown that suspects often confess to crimes they did not commit under the false impression that cooperating, even by admitting to something they did not do, will benefit them in the long-term, only to realize that they have created far greater problems for themselves.

Here is another example of how this might play out: A detective might tell a woman that her children will be taken from her and placed into foster care if she does not confess to a crime.  The threat of losing her children is sufficient to make some people admit to doing something they didn't do.  This borders on coercion, but once you have confessed it is hard to put that genie back in the bottle, because the police will begin to look through your life with a fine tooth comb trying to find anything to corroborate the confession they believe they just got.  Also, the confession will be used against her in any hearings to take away her children.

Should police be allowed to blatantly lie to suspects?  On the one hand, it is a very persuasive and efficient method to motivate a guilty person into confessing.  It would also seem that an innocent person would see through these lies and quit talking to the police immediately.  On the other hand, people who have something to fear can be intimidated and potentially pressured into confessing to something they did not do.  This is especially true of non-residents without papers, people with difficulty speaking English, and those who have little or no education.

What should you do?  If the police are interviewing you, they probably are looking at you as a suspect.  Politely tell them you have nothing to say, and that you want an attorney.

Understanding Deferred Probation

If you are charged with a crime, there will be one of four results when you go to court.  Dismissal is the best of all results because your charges have been dropped and you are free.  Jail or Prison time is obviously the worst result because it means you will be incarcerated for some period of time.  In between these two extremes are two forms of probation: Suspended Sentence and Deferred Sentence.  Let’s focus today on these two forms of probation.

If it is your first offense, your attorney may be able to get you deferred sentencing and probation instead of jail time.  This alternative sentencing solution is the best possible outcome other than an outright dismissal.  A deferred sentence allows you to have your court record sealed after successfully completing all of the court-ordered probation.  This means having all of your fines and DA supervision paid, as well as, completing any special orders like Drug and Alcohol Assessment, DUI School, or Batters Intervention Program, and obviously, you must not break any federal, state, municipal, or tribal laws.

Having your record expunged is a tremendous advantage since a criminal record can limit your job and licensure opportunities.  So how does this work?  It starts with you pleading guilty to the criminal charge.  However, instead of accepting the plea and rendering judgment, the judge delays judgment and sentencing, giving the defendant an opportunity to complete probation instead.

For example, a first DUI offender may plead guilty to DUI, but instead of convicting the defendant and ordering him or her to jail, the judge would defer sentencing and order the defendant to drug and alcohol treatment, community service, participating in a victim’s impact panel, and similar terms of probation.

If you were to violate probation or commit other crimes, the prosecutor will likely file a Motion to Accelerate sentencing. The judge may then accept the guilty plea and order you to serve a jail or prison sentence.  If the you successfully completes your probation, the court records are updated. Your guilty plea is changed to reflect a plea of “not guilty,” and the case is dismissed. There is no criminal conviction, and through expungement, your name is stricken from court records.

A suspended sentence is different from a deferred sentence. While both types of sentencing allow you to serve probation in lieu of all or part of the jail or prison sentence, a suspended sentence results in criminal conviction, which will stay on your record.  It isn’t jail or prison, but a suspended sentence pales in comparison to the benefits of a deferred sentence.

What Do Criminal Defense Attorneys Do?

Ever since I announced to my friends and family that I was going to be a Criminal Defense Attorney there has been one nagging question, “How can you sleep at night defending criminals?”  In this short article, I would like to answer that question and at the same time possibly give you some insight on how you might select an attorney, if you ever need one.

First, I sleep just fine!  When I see a client who has been arrested and charged with a crime, I don’t see a criminal.  What I see is someone’s son or daughter, mother or father, or brother or sister.  My client has people that care about them and their loss of liberty (freedom) will cause those people great pain.  So, I treat my clients like they are family.  I take care of them like they are my own brother or sister.  That means giving them the respect they deserve, telling them the truth, and not sugarcoating the risks and challenges they will face through the difficult legal process.  It means helping them weigh the risks and rewards of each decision.  Not every case ends with a not guilty or dismissal, but I can sleep at night knowing that I did my very best to give my client the opportunity to stay out of jail, prison, and possibly stay in-country.

One of the things people who criticize criminal defense attorneys don’t seem to understand is that in many ways we are just Constitutional Lawyers.  We protect the 4th, 5th and 6th Amendments.  We keep the police from stopping and searching people without probable cause or at least reasonable suspicion.  We prevent the prosecutor from using our client’s coerced (involuntary) statements against them.  And, we make sure that the police and prosecutor can’t manipulate our client into making decisions that could take their freedom.  I think everyone can agree that there are dangerous people out on the streets, but the minute we give the police and the prosecutors free rein to ignore the Constitution, we open ourselves up to a type of tyranny and corruption that destroys communities and nations.

In closing, what should you look for in a Criminal Defense Attorney?  (1) Look for passion and enthusiasm to fight for your rights. (2) Money is important, but it shouldn’t be the only thing on your attorney’s mind. (3) Look for someone who treats you with respect and can communicate with you and your family.  (4) Finally, look for someone who has the respect of both prosecutors and the judges. 

Should You Take The Breath Test?

Let me start as I have all of these discussions on the subject of DUI’s by saying, “Don’t Drink and Drive!”  Now with that said, should you let the police test your breath for alcohol.  The short answer is NO, but let’s take a closer look at why.

Why a breath test?  Alcohol intoxication is legally defined by your blood alcohol concentration (BAC) level.  A BAC of .08 or above is the only scientifically objective way to prove someone is intoxicated.  The most accurate method of testing would be to take a blood or urine sample, but these are impractical for obvious reasons.   The less invasive solution is to measure the ethanol level of a person’s breath.

How does it work?  Scientists found a direct correlation between the amount of ethanol in a person’s breath and the amount of alcohol in their blood (BAC).  In Oklahoma, the police use the Intoxilyzer to take this measurement.  The Intoxilyzer uses infrared light and a very small computer to interpret and calculate the BAC from a person’s breath.

Field Test or Jail Test?  Breath tests administered at the scene are usually not admissible in court because they are not as reliable.  This means that police have to administer the test when you get to the jail.  This can cause all sorts of issues that can make the test less reliable.  What you had to eat, the machines service log, and even if you burped prior to the test can bring into question the validity of the measurement.

So, should you take the breath test?  Our opinion is, Say No Thank You, and refuse the test.  There is no upside for you.  Without the breath test the police will have only their observations and the Field Sobriety Test.  This is much easier to fight than a number from a machine.

Interesting Legal Issue…if you did take the test, there is still hope.  The Intoxylizer evidence has been found unreliable in some at least one State.  The reason is that the manufacturer can’t prove the accuracy of their device.  It is only a matter of time before the Intoxilyzer will be challenged here in Oklahoma.

Last thought…Don’t wait…Hire an attorney right away, especially if you have a valid driver’s license.  There are several things a good DUI attorney can do for you, but every minute you hesitate places you at a greater disadvantage.

Field Sobriety Test

What is a Standardized Field Sobriety Test? As I said at the beginning of the last article, do not drink and drive! With that said, once you have been stopped, the officer may ask you to step out of your vehicle and perform a Field Sobriety Test (SFST). Remember you can refuse to take the test! The SFST consists of three parts:  Heel-Toe-Turn, Single Leg Balance and the Horizontal Gaze Nystagmus.

The Heel-Toe-Turn Test

During this test you are asked to walk 7/8 steps in a straight line placing your heel against the previous toe and you must keep your arms at your sides.  At the end of the steps, you are supposed turn and walk back to your original position.  Any wavering, loss of balance, or raising of your arms could constitute failure of this test.  Obviously, any current or old injuries may impact your ability to perform this test; also, uneven roadway, gravel or your footwear can make it difficult to perform this test. When asked to perform this test 4 out of 10 sober individuals gave indications that may get them designated as intoxicated.

One Leg Balance Test

This test is exactly what it sounds like. You will be asked to balance on one foot while keeping your arms at your sides. Just like the last test your ability to pass this test will have a lot to do with how level the road is beneath your feet, gravel and also how close you are to stationary objects (it is very hard to balance in the dark with no buildings or trees to give you adequate depth perception.)  In the end, 4 out 10 sober individuals will fail this test

Horizontal Gaze Nystagmus

The final test is an eye movement test. The officer moves a pen right to left in front of your face and watches how smoothly and evenly your eyes move. We could spend three whole articles on how flawed this test is; instead, let me just say that without the other two tests officers were only right 40% of the time in determining sobriety.

What should you do?

It is this author’s opinion that the SFST is only reasonably accurate when all 3 tests are administered correctly by one officer.  Because there is so much room for error, it just does not make sense to agree to take these tests.  Just say No!

Avoiding a DUI Traffic Stop

Let me state the obvious, if you're drunk, then don't drive.  You certainly don't want to hurt someone else or yourself in an accident.  You also don't want to get arrested, spend time in jail, lose your license, pay huge fines, and perhaps even lose your job.

With that said, at one time or another almost everyone has had a few beers and gotten behind the wheel of a vehicle.  The problem is that once you are stopped even a hint of alcohol on your breath could get you arrested for DUI.  It is my experience that most people do not realize how little it takes to exceed the legal standard of 0.08% blood alcohol content (BAC).  For the average sized person, three or four drinks could easily place them in the "drunk-driver" category.  However, based solely on a police officer's claim that you were "impaired," even though your BAC was below the legal threshold, you can still be convicted as a drunk driver.

How do you avoid being caught up in a DUI nightmare?  Well, you could avoid drinking and driving altogether.  However, if you choose to drink and drive, there are a number of things you can do to lessen the likelihood of being stopped and charged with a drunk-driving violation.

Your Vehicle - Police officers need probable cause to make a traffic stop.  That cause could an observable defect in the vehicle’s safety equipment.  How can you lower your risk?  Once every three weeks turn on all the lights on your vehicle.  Check your headlight, taillights, brake lights and turn signals.  Get broken windshields fixed, and don't forget the license plate light, because this is a favorite of law enforcement!

Your Driving - Obviously, violating traffic laws is a good way to attract the attention of police officers. Speeding, failing to use signals, or rolling through a stop sign are controllable situations.  Making sure to wear your seat belt.  Also, avoid driving through areas where there are a lot of bars late at night.

You've Been Stopped, Now What? – Pull over to a safe place.  Immediately roll down your window and vent the passenger compartment.  Be courteous, but admit to nothing.  This cannot be emphasized enough.  Any admission, however inconsequential, will be used against you. 

In the next edition, I will discuss whether you should agree to take the Field Sobriety Test.  Remember to contact an attorney as soon as possible.  Until next time, be safe out there! 

What happens after you are arrested?

Let’s start at the beginning:  You, or a family member, are arrested and taken to jail…What happens next??  The first step in the criminal justice system is called video arraignment.  It takes 48 to 72 hours to be arraigned.  Through video technology you will be brought before a judge who will tell you what you are being charged with, what your bond amount is, possibly appoint the Public Defender, and give you your next court date.  If you are without papers you will not receive a bond, unless you have hired a private attorney who specifically asks the judge to set a state bond.  The next step depends on whether you are charged with a misdemeanor or a felony.  A misdemeanor is a less serious crime and carries a maximum sentence of one year in Tulsa County Jail.  If you are without papers, you may still be allowed to stay in the country if the criminal misdemeanor case is handled properly.  A felony is much more serious because it potentially carries multiple years of prison incarceration, as well as almost guaranteeing deportation for anyone without citizenship.

If you are charged with a misdemeanor, then your next court date will be approximately three weeks later and it is called a Status Conference (STC).  This is when your attorney will discuss with an Assistant District Attorney (ADA) what they would offer you as a penalty if you were willing to plea guilty.  If you accept the offer, and it does not include jail time, you will be released, or transferred to ICE if you are without papers.  If you choose to fight the charges, then an Allen Hearing date will be set approximately four weeks into the future.  This is the date by which the DA’s office must give your attorney all the evidence they have in their possession.  If you are not guilty or the plea offer is not reasonable, it is necessary to set this date to force the ADA to take a closer look at the evidence.  Sometimes a better plea offer is worked out prior to the Allen Hearing date.  If the ADA provides all the evidence by this date, then a Trial Date will be set approximately six to eight weeks out.

If you are charged with a felony, then your next court date will be a Preliminary Hearing and will be approximately three weeks after arraignment.  During this time your attorney will be given the opportunity to negotiate on your behalf for a plea arrangement.  If an agreement is made between you and the ADA, then the Preliminary Hearing will not be necessary.  So, what is a preliminary hearing?  It is sort of a mini-trial where the DA’s office is given the opportunity to call witnesses and produce evidence, and they must show that more likely than not they can prove all of the elements of the crime, which you have been accused.  In most cases, this is not a very difficult task, because although your attorney is able to cross-examine their witnesses, you and your attorney are not usually allowed to call witnesses of your own or mount a specific defense.  If the ADA is unable to prove all of the elements, then the case will be dismissed.  This happens very rarely, but it does happen.  If they prove the elements, then you are bound-over for District Court.  This is just a fancy term for a Status Conference to decide whether you are going to accept a plea agreement or go to trial.  This will occur about one week after the Preliminary Hearing.  If you decide to fight the charges all the way to trial, it will take approximately nine months.

There are three things to remember.  (1) Nothing happens as quickly as you would like it to, especially if you or your loved one is in jail.  Be patient! (2) You deserve to have answers.  Find an attorney that will take the time to answer all of your questions.  It is important that you make well-informed decisions.  (3) Don’t let your attorney talk you into pleading guilty to the first offer.  Hire an attorney who is not afraid to take your case to trial.  Even if you just want to get it over with, an attorney who is willing to fight will almost always get you a better deal.

PROTECT YOUR RIGHTS

In order to protect your rights, do not consent to searches or give statements to the police.  If you are stopped or the police knock on your door; remain calm, don't offer resistance, be polite, and let the officers know that you do not consent to any form of search and you will not make any statements without your attorney present.

Be careful of police tactics that attempt to trick, bully, or coerce you into talking or consenting to a search.  They are not going to go easier on you if you give up your rights.  They are not going to let you go if you cooperate.  The charges and the penalties will not be less if you admit to something.  Ask for an attorney and shut up!  That is your best course of action.