Oklahoma DUI Defense: The Law and Practice, Second Edition

• Author: Bruce Edge, John Hunsucker, James Nesci
  
• ISBN 10: 1-936360-54-3
  
• ISBN 13: 978-1-936360-54-3
  
• Copyright Date Ed: December 22, 2015
  
• Pages: 416 pages
  
• Binding Information: Casebound plus CD-ROM
  
• Size: 8.5 ✕ 11 Inches (US)

With legislative developments, the introduction of blood alcohol-testing techniques, and an increasingly harsh prosecutorial climate, mounting a successful DUI defense in Oklahoma is more difficult than ever. With our brand new Oklahoma DUI Defense: The Law and Practice, Second Edition, though, you are equipped with a powerful weapon.

This book ensures that you understand the chemical, biological, and technological concepts and issues underlying DUI prosecution and defense, with Oklahoma-specific advice that you couldn’t get from any other book.

Authors Bruce Edge and John Hunsucker—in collaboration with James Nesci—provide the most authoritative book on defending DUI cases in Oklahoma. In 2006, Bruce and John were the first and only two Oklahoma DUI lawyers selected as Super Lawyers. Their opinions are sought after by other attorneys throughout the United States regarding DUI defense.

Many practical tools and applications designed to streamline and simplify the complex DUI defense process are available on a bonus CD-ROM—so you can locate, review and print them out in a matter of seconds. Among this bonus material are DRE and NHSTA student and instructor manuals, and numerous validation studies.

Lawyers & Judges has published twenty state-specific DUI defense reference books. A practitioner in Colorado raved in the Colorado Lawyer that Colorado DUI Defense: The Law and Practice is “a must-have resource” and would make “a nice gift for the lawyers in your life who practice DUI defense.” The Wisconsin Lawyer reviewer gave Wisconsin OWI Defense: The Law and Practice a touchdown review, calling the book “the best book I have read pertaining to Wisconsin operating-while-intoxicated (OWI) law, and one of the best in dealing with the substance of OWI law.”

Topics Include:

• Advertising
• Client Relations
• DUI and the Oklahoma Motor Vehicle Division
• Pre-trial Investigations
• Pre-trial Motions Practice
• Plea Offers and Agreements
• DUI Trial Procedures
• DUI Investigations, Driving & Field Sobriety Testing
• Drug Recognition Evaluation
• Chemical Testing
• Blood Alcohol Calculations
• Expert Witnesses
• Resources
• Oklahoma Case Law

CD-ROM topics include:

• USDOT “Drugs That Impair Driving” manual
• “DUI Mandatory Sentencing Chart”
• USDOT “DWI Detection and Standardized Field Sobriety Testing” manual
• USDOT “SFST Refresher Training Course” manual
• Oklahoma rules
• Jury instructions
• NHTSA “The Detection of DWI Motorcyclists” brochure
• NHTSA visual detection (videos)

Table of Contents

Table of Cases
How to Use this Book
Foreword

Chapter 1: Lawyer Advertising
1.1 Ethical Issues
1.2 Advertising Resources
A. Phone Book Advertising
B. Internet Advertising
C. Giveaways
1.3 Social Media
A. Ethical Concerns
B. Confidentiality vs. Privilege
C. The 3 Tenets of Social Media: Timeliness, Honesty, and Transparency
D. Faceboook
E. Twitter
F. Social Media as a Research Tool
G. Final Thoughts on Social Media

Chapter 2: Client Relations
2.1 Meeting the Prospective Client
2.2 Client Intake Questions
2.3 Client Intake Interview
2.4 Retainer Agreements
2.5 Fees
2.6 IOLTA
2.7 Communication
2.8 Client Interview
2.9 Client File Retention

Chapter 3: Driving Under the Influence
3.1 Types of Misdemeanor DUI
3.2 DUI with Great Bodily Harm
3.3 Child Endangerment
3.4 Felony DUI
3.5 Prior Offenses in Felony Cases
3.6 Aggravated DUI
3.7 Forfeiture of Property
3.8 Death from a DUI Accident
3.9 Reckless Driving
3.10 Minor Driving With Alcohol in the Body
3.11 Operating a vessel under the influence of alcohol—Boating
3.12 Court Costs and Fees 28 O.S. § 4-153

Chapter 4: Clients with Special Circumstances
4.1 Representing a Military Client for DUI/DWI
A. Jurisdiction
B. On-Base/Military
C. Nonjudicial Punishment
D. Federal Prosecution
E. Double Jeopardy
F. Court-Martial
G. Off-Base/Civilian and Military Punishments
H. Post-Traumatic Stress Syndrome
I. Summary
4.2 Canadian Travel
4.3 Pilots and Merchant Marines
4.4 Non US. Citizens—Immigration

Chapter 5: Department of Public Safety
5.1 Overview
5.2 Chemical Testing 28 O.S. § 4-153
5.3 Implied Consent Test Request
5.4 Notice of Revocation
5.5 Implied Consent Hearing/Modification
5.6 Implied Consent Hearing
5.7 Modification of Driver’s License
5.8 License Revocation as the Result of a Criminal Conviction
5.9 Length of Revocation for DUI/APC/DWI
5.10 Refusal
5.11 Post Revocation Action - Erin Swezey Act
5.12 Excessive User
5.13 Repeat Offenders and Excessive Users of Alcohol - Restricted License - Interlock Device
5.14 Commercial License
5.15 Alcohol and Drug Substance Abuse Evaluation Programs

Chapter 6: Pre-Trial Investigations
6.1 Overview
6.2 Proper Filing Techniques
6.3 Visiting the Scene
6.4 Photography and Videos
6.5 Diagrams and Aerial Photography
6.6 Accident Reconstruction
6.7 Event Data Recorders (Black Boxes)
6.8 Roadblock (a.k.a. “DUI Checkpoint”) Investigations
6.9 Pretrial Interviews
6.10 Request Judgement and Sentences Paperwork
6.11 Request All Videos

Chapter 7: Pre-Trial Motions Practice
7.1 Overview
7.2 Procedural Motions
7.3 Substantive Motions
7.4 Motions in Limine
7.5 Evidentiary Hearings

Chapter 8: Plea Offers
8.1 Overview
8.2 Waiver of Rights
8.3 Collateral Consequences
8.4 Exposure of Prior Offenses—Predicates
8.5 Misdemeanor Plea Offers
8.6 Felony Plea Offers

Chapter 9: Trial
9.1 Overview
9.2 Voir Dire and Jury Selection
9.3 Jury Instructions
9.4 Opening Statements
9.5 Cross-Examination
9.6 Direct Examination
9.7 Closing Argument
9.8 Sentencing

Chapter 10: DUI Investigations: Driving and Field Sobriety Testing
10.1 Overview: National Highway Traffic Safety Administration (NHTSA)
10.2 Driving Behavior
10.3 Standardized Field Sobriety Testing (SFST) Validation Studies
10.4 Legal Analysis and Summary of the SFST Validation Studies
10.5 Standardized Field Sobriety Test Battery
10.6 Horizontal Gaze Nystagmus (HGN)
10.7 Walk and Turn
10.8 One-Leg-Stand
10.9 Correlation Between BAC and HGN or FSTs
10.10 Refusal of SFSTs and General Admissibility
10.11 Commonly Used Non-Standardized/Non-Validated Field Sobriety Tests
10.12 Videotaping the Driving and Investigation
References

Chapter 11: Drug Recognition Evaluation
11.1 Overview
11.2 DRE Statutory Law
11.3 Per Se Statutes Comparison
11.4 Impairment Statutes Comparison
11.5 Defenses
11.6 Implied Consent Laws Comparison
11.7 DRE Case Law
11.8 The 12-Step DRE Protocol
11.9 Deconstruction and Analysis of the 12-Step DRE Protocol
11.10 Effects of Various Drugs
11.11 Drug Evaluation Classification Protocol (DECP)
11.12 Drug Evaluation Classification Training Program

Chapter 12: Chemical Testing
12.1 Preliminary Breath Testing
12.2 Commonly Used PBT Devices
12.3 Evidential Breath Testing
12.4 Infrared Light Absorption
12.5 Basic Operation
12.6 Intoxilyzer® Printouts
12.7 Henry’s Law and the Blood-to-Breath Ratio
12.8 Breath Testing: Methods of Attack
12.9 Calibration
12.10 Simulators Approved in Oklahoma
12.11 Statutory Requirements for Admissibility of Breath Test Results
12.12 Blood Testing: From the Vein to the Lab
12.13 Headspace Gas Chromatography
12.14 Blood Testing For Drugs
12.15 Secondary Blood Testing

Chapter 13: Blood Alcohol Calculations for Attorneys
13.1 Blood Alcohol Calculations for Attorneys
13.2 Determining the One-Drink Potential
13.3 Elimination and Retrograde Extrapolation
13.4 White’s Retrograde Extrapolation
13.5 Partition Ratio Conversions
13.6 Unit Conversions

Chapter 14: Expert Witnesses
14.1 Overview
14.2 Pretrial Preparation
14.3 Direct Examination of the Defense Expert Witness
14.4 Cross of the State’s Expert Witness
14.5 Direct Examination of the State’s Expert as a Defense Witness

Chapter 15: DUI Jury Trial Warpack
15.1 Actual Physical Control (APC)
15.2 Appellate Standard of Review
15.3 Arrest
15.4 Blood Draws
15.5 Burden of Proof
15.6 Chain of Custody
15.7 Circumstantial Evidence
15.8 Closing Arguments—Ethical Considerations
15.9 Collateral Estoppel in DUI Cases
15.10 Comment of Defendant’s Silence
15.11 Confrontation
15.12 Continuances
15.13 Corpus
15.14 Credibility of Witnesses
15.15 Destruction of Evidence
15.16 Directed Verdict - 22 O.S. § 850—Advising a Jury to Acquit Defendant
15.17 Discovery Rule - 22 O.S. § 2002—Disclosure of Evidence by State and Defendant—Duty of Disclosure
15.18 Double Jeopardy
15.19 DPS
15.20 Evidence
15.21 Expert Witnesses
15.22 Field Sobriety Test Admissibility
15.23 Impeachment
15.24 Intoxilyzer® Test
15.25 Jurors
15.26 Jury Instructions
15.27 Jury Trial Right
15.28 Miranda
15.29 Necessity Defense
15.30 Opinion Testimony
15.31 Plea Agreements
15.32 Predicate Offenses (prior convictions)
15.33 Prior Convictions
15.34 Probable Cause
15.35 Reasonable Suspicion
15.36 Relation Back
15.37 Restitution
15.38 Right to Counsel
15.39 Sentencing
15.40 Speedy Trial
15.41 Voluntariness of Statements

Appendix A: Oklahoma Evidence Code

Appendix B: Oklahoma Rules of Professional Conduct

Appendix C: Oklahoma Uniform Jury Instructions, Criminal 2nd Edition

Appendix D: Title 40—Board of Test for Alcohol and Drug Influence

Appendix E: Title 595—Department of Public Safety

Appendix F: The Aging Process and Field Sobriety Tests
by Mimi Coffey, Esq.

Appendix G: DWI—Modern Day Salem Witch Hunts
by Mimi Coffey, Esq.

Appendix H: DWI—Fear and the DWI Field Sobriety Tests
by Mimi Coffey, Esq.

About the Authors
Index