DUI Laws in Oklahoma

Summary of Oklahoma DUI Statutes

Driving Under the Influence Offenses:

In Oklahoma, DUI is referred to by statute as DUI (Driving Under the Influence).

DUI (Driving Under the Influence) – 47 O.S. § 11-902 Includes Actual Physical Control (APC)

It is unlawful and punishable or any person to drive, operate, or be in actual physical control of a motor vehicle within this state, whether upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings, who:

1. Has a blood or breath alcohol concentration, as defined in Section 756 of this title, of eight-hundredths (0.08) or more at the time of a test of such person’s blood or breath administered within two (2) hours after the arrest of such person;

2. Is under the influence of alcohol;

3. Has any amount of a Schedule I chemical or controlled substance, as defined in Section 2-204 of Title 63 of the Oklahoma Statutes, or one of its metabolites or analogs in the person’s blood, saliva, urine or any other bodily fluid at the time of a test of such person’s blood, saliva, urine or any other bodily fluid administered within two (2) hours after the arrest of such person; (Marijuana is a Schedule I drug)

4. Is under the influence of any intoxicating substance other than alcohol which may render such person incapable of safely driving or operating a motor vehicle; or

5. Is under the combined influence of alcohol and any other intoxicating substance which may render such person incapable of safely driving or operating a motor vehicle.

B. The fact that any person charged with a violation of this section is or has been lawfully entitled to use alcohol or a controlled dangerous substance or any other intoxicating substance shall not constitute a defense

Elements of Operation

It is not necessary for an individual to operate a motor vehicle for a conviction of DUI in Oklahoma. It is unlawful for an individual to drive, operate, or be in actual physical control of a motor vehicle. In Oklahoma, DUI and Actual Physical Control (APC) are

Warning: Arrests occur routinely in Oklahoma where an individual gets into the driver’s seat of a parked car after leaving a bar or other establishment where they have consumed alcohol, and that person makes the decision not to drive because of concern for their ability to safely operate a vehicle, but turns on the car for the purpose of heating or cooling the car while they sit parked, waiting until they can safely drive.

DWI (Driving While Intoxicated) – 47 O.S. § 761 (This is a lesser offense than DUI)

Any person who operates a motor vehicle his ability to operate the motor vehicle is impaired by the consumption of alcohol or any other substance. The penalty is a fine of $100.00-$500.00 and/or 0-6 months in county jail. A first time conviction also carries a 30 day license revocation.

Elements of Driving with Impaired Ability:

It must be proven beyond a reasonable doubt that the defendant was

1. Driving
2. A motor vehicle
3. Upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings
4. With impaired ability
5. Due to alcohol or an intoxicating substance.

For persons twenty-one years of age or older evidence that there was, at the time of the test, an alcohol concentration in excess of five hundredths (0.05) but less than eight- hundredths (0.08) is relevant evidence that the person’s ability to operate a motor vehicle was impaired by alcohol. 47 O.S. § 756. Thus, if alcohol test, must be .06 or .07 BAC.

Admission of evidence by tests – 47 O.S. § 756

Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of alcohol or any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, evidence of the alcohol concentration in the blood or breath of the person as shown by analysis of the blood or breath of the person performed in accordance with the provisions of Sections 752 and 759 of this title or evidence of the presence or concentration of any other intoxicating substance as shown by analysis of such person’s blood, breath, saliva, or urine specimens in accordance with the provisions of Sections 752 and 759 of this title is admissible. Evidence that the person has refused to submit to either of said analyses is also admissible.

For the purpose of this title, when the person is under the age of twenty-one (21) years, evidence that there was, at the time of the test, any measurable quantity of alcohol is prima facie evidence that the person is under the influence of alcohol in violation of 47 O.S. § 11-906.4.

For persons twenty-one years of age or older evidence that there was, at the time of the test, an alcohol concentration in excess of five hundredths (0.05) but less than eight- hundredths (0.08) is relevant evidence that the person’s ability to operate a motor vehicle was impaired by alcohol.

However, no person shall be convicted of the offense of operating or being in actual physical control of a motor vehicle while such person’s ability to operate such vehicle was impaired by alcohol solely because there was, at the time of the test, an alcohol concentration in excess of five-hundredths (0.05) but less than eight-hundredths (0.08) in the blood or breath of the person in the absence of additional evidence that such person’s ability to operate such vehicle was affected by alcohol to the extent that the public health and safety was threatened or that said person had violated a state statute or local ordinance in the operation of a motor vehicle.

Covered Vehicles or Devices: 47 O.S. § 1-186

The term motor vehicle is defined in the Oklahoma statutes as any vehicle which is self-propelled or any vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.

Covered Locations:

You do not have to be driving a motor vehicle on a highway to receive a DUI in Oklahoma. Oklahoma statute provides a person may be guilty of DUI if operating a motor vehicle upon public roads, highways, streets, turnpikes, other public places or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwelling. This language does not address a private drive that enters a single business and does not provide access to residential property of any type.

Penalties for DUI/APC Offenses (In District (State) Court) – 47 O.S. § 11-902

First Offense (Misdemeanor)

Upon conviction of a first offense DUI, the individual shall participate in an assessment and evaluation and shall follow all recommendations made in the assessment and evaluation. The individual shall also be subject to punishment by confinement in jail for not less than ten (10) days nor more than one (1) year and/or a fine of no more than One thousand dollars ($1000.00).

Aggravated DUI (Misdemeanor) – 47 O.S. § 47 (D)

Any person who is convicted of a violation of driving under the influence with a blood or breath alcohol concentration of fifteen-hundredths (0.15) or more pursuant to this section shall be deemed guilty of aggravated driving under the influence. A person convicted of aggravated driving under the influence shall participate in an assessment and evaluation pursuant to subsection G of this section and shall comply with all recommendations for treatment. Such person shall be sentenced to: 1.) Not less than one (1) year of supervision and periodic testing at the defendant’s expense; and 2.) An ignition interlock device or devices, as provided by subparagraph n of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes, for a minimum of ninety (90) days.

Nothing in this subsection shall preclude the defendant from being charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C of this section. Any person who is convicted pursuant to the provisions of this subsection shall be guilty of a misdemeanor for a first offense and shall be punished as provided in paragraph 1 of subsection C of this section. Any person who, during the period of any court-imposed probationary term or within ten (10) years of the completion of the execution of any sentence or deferred judgment, commits a second violation of this subsection shall, upon conviction, be guilty of a felony and shall be punished as provided in paragraph 2 of subsection C of this section. Any person who commits a second felony offense pursuant to this subsection shall, upon conviction, be guilty of a felony and shall be punished as provided in paragraph 3 of subsection C of this section. Any person who commits a third or subsequent felony offense pursuant to the provisions of this subsection shall, upon conviction, be guilty of a felony and shall be punished as provided in paragraph 4 of subsection C of this section.

Second DUI Offense (Felony if prior meets requirements for enhancing)

Any person who, during the period of any court-imposed probationary term or within ten (10) years of the date following the completion of the execution of any sentence or deferred judgment for a violation of this section or a violation pursuant to the provisions of any law of this state or another state prohibiting the offenses provided in subsection A of this section, Section 11-904 of this title or paragraph 4 of subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes, commits a second offense pursuant to the provisions of this section or has a prior conviction in a municipal criminal court of record for the violation of a municipal ordinance prohibiting the offense provided for in subsection A of this section and within ten (10) years of the date following the completion of the execution of such sentence or deferred judgment commits a second offense pursuant to the provisions of this section shall, upon conviction, be guilty of a felony and shall participate in an assessment and evaluation pursuant to subsection G of this section and shall be sentenced to: a). follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, or; b.) placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed five (5) years and a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), or; c.) treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. However, if the treatment in this section does not include residential or inpatient treatment for a period of not less than five (5) days, the person shall serve a term of imprisonment of at least five (5) days.

Municipal Criminal Courts of Record – 11 O.S. § 28-101

In Oklahoma, cities that have a population of more than 65,000, there may be a Municipal Criminal Court of Record. Presently, only two cities have a Municipal Criminal Court of Record – Oklahoma City and Tulsa. Convictions for DUI in these courts can be used to enhance a second or consecutive DUI.

Second Felony DUI Charge

Any person who is convicted of a second felony offense pursuant to the provisions of this section or a violation pursuant to the provisions of any law of this state or another state prohibiting the offenses provided for in subsection A of this section, Section 11-904 of this title or paragraph 4 of subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes shall participate in an assessment and evaluation pursuant to subsection G of this section and shall be sentenced to: a.) follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, two hundred forty (240) hours of community service and use of an ignition interlock device, as provided by subparagraph n of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes, or; b.) placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed ten (10) years and a fine of not more than Five Thousand Dollars ($5,000.00), or; c.) treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. However, if the treatment in subsection G of this section does not include residential or inpatient treatment for a period of not less than ten (10) days, the person shall serve a term of imprisonment of at least ten (10) days.

Third or Subsequent Felony DUI Charge

Any person who is convicted of a third or subsequent felony offense pursuant to the provisions of this section or a violation pursuant to the provisions of any law of this state or another state prohibiting the offenses provided for in subsection A of this section, Section 11-904 of this title or paragraph 4 of subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes shall participate in an assessment and evaluation pursuant to subsection G of this section and shall be sentenced to: a.) follow all recommendations made in the assessment and evaluation for treatment at the defendant’s expense, followed by not less than one (1) year of supervision and periodic testing at the defendant’s expense, four hundred eighty (480) hours of community service, and use of an ignition interlock device, as provided by subparagraph n of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes, for a minimum of thirty (30) days, or; b.) placement in the custody of the Department of Corrections for not less than one (1) year and not to exceed twenty (20) years and a fine of not more than Five Thousand Dollars ($5,000.00), or; c.) treatment, imprisonment and a fine within the limitations prescribed in subparagraphs a and b of this paragraph. However, if the person does not undergo residential or inpatient treatment pursuant to subsection G of this section the person shall serve a term of imprisonment of at least ten (10) days.

Erin Swezey Act and How it Affects an Individual’s License

1st license revocation

• BAC less than 0.15 – 6 month revocation, eligible for fully modified license with Ignition Interlock device. Nothing further required by Erin Swezey Act.
• BAC greater than 0.15 or refusal – 6 month revocation, driving privileges with Ignition interlock device. Under the Erin Swezey Act, upon completion of 6 month revocation, Ignition Interlock device required for 18 months.

2nd license revocation within 10 years

• 12 month revocation, Ignition Interlock device required for duration of revocation period. The Erin Swezey Act requires that upon completion of revocation period Ignition Interlock required for 4 years.

3rd license revocation within ten years

• 3 year revocation, Ignition Interlock device required for duration of revocation, upon conclusion of revocation period Ignition Interlock required for 5 years.

The additional Ignition Interlock device periods do not start until the individual’s license is reinstated. In order for the individual to get their license reinstated, the Ignition Interlock device must be installed. The result is that while an individual can forgo their driving privileges for the initial revocation period and not have an Ignition Interlock device installed, the additional period during which the Ignition Interlock device is required CANNOT be avoided.

Other Criminal Offenses Involving Driving Under the Influence:

DUI After Conviction of Murder in the Second Degree or Manslaughter One

Any person who, after a previous conviction of a violation of murder in the second degree or manslaughter in the first degree in which the death was caused as a result of driving under the influence of alcohol or other intoxicating substance, is convicted of a violation of this section shall be guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for not less than five (5) years and not to exceed twenty (20) years, and a fine of not more than Ten Thousand Dollars($10,000.00).

Persons Under 21-DUI Under 21

It is unlawful, and punishable for any person under twenty-one (21) years of age to drive, operate, or be in actual physical control of a motor vehicle within this state who:

1. Has any measurable quantity of alcohol in the person’s blood or breath at the time of a test administered within two (2) hours after an arrest of the person;
2. Exhibits evidence of being under the influence of any other intoxicating substance as shown by analysis of a specimen of the person’s blood, breath, saliva, or urine in accordance with the provisions of 47 O.S. §§ 752 and 759; or
3. Exhibits evidence of the combined influence of alcohol and any other intoxicating substance.

Accidents Causing Great Bodily Harm

Any person who causes an accident resulting in great bodily injury to any person other than himself while driving or operating a motor vehicle within this state and who is in violation of the provisions of 47 O.S. § 11-902 (A), may be charged with a violation of the provisions of this subsection. Any person who is convicted of a violation of the provisions of 47 O.S. § 11-904 (B) shall be deemed guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for not less than one (1) year and not more than ten (10) years, and a fine of not more than Five Thousand Dollars ($5,000.00).

Child Endangerment – 47 O.S. § 11-902 (L)

When a person is eighteen (18) years of age or older, and is the driver, operator, or person in physical control of a vehicle, and is convicted of violating any provision of 47 O.S. 11-902 while transporting or having in the motor vehicle any child less than eighteen (18) years of age, the fine shall be enhanced to double the amount of the fine imposed for the underlying driving under the influence (DUI) violation which shall be in addition to any other penalties.

Implied Consent Laws:

Any person who operates a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings within this state shall be deemed to have given consent to a test or tests of such person’s blood or breath, for the purpose of determining the alcohol concentration, and such person’s blood, saliva or urine for determining the presence or concentration of any other intoxicating substance therein as defined in this section, if arrested for any offense arising out of acts alleged to have been committed while the person was operating or in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place or upon any private road, street, alley or lane which provides access to one or more single or multi-family dwellings while under the influence of alcohol or other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, or if the person is involved in a traffic accident that resulted in the immediate death or serious injury of any person and is removed from the scene of the accident to a hospital or other health care facility outside the State of Oklahoma before a law enforcement officer can effect an arrest.

Type of advisement required:

The arresting officer is required to inform the subject of the implied consent law requirements, including that the subject is under arrest for DUI or DWI, the type of test or tests requested, and the penalty for refusing testing (loss of license),

Tests permitted

Blood, breath or urine tests may be requested with up to two samples in any combination as directed by law enforcement. The arrested subject does not get to choose which test to take. The individual may request an additional test.

If the individual refuses to take a test, the individual’s driving privileges shall be revoked as follows: 1) First revocation shall be for 180 days; 2) a revocation within 10 years of a prior revocation shall be for one (1) year; 3) a second revocation within 10 years of a prior revocation shall be for three (3) years.

Independent Test Statute

Oklahoma law provides that a driver, once they have taken the chemical test(s) requested by the law enforcement officer, may request an independent test at his or her own expense. 47 O.S. § 751 (E). Pursuant to 47 O.S. § 751, a subject who is arrested for DUI and submits to a test at the direction of the law enforcement officer has a right to obtain an independent test by a physician, qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested.

It is important to note that the officer does not have to inform the driver of this right under the law unless the driver knows to ask for it. The statute also does not allow the driver to choose which chemical test to take as requested by law enforcement, and if the driver refuses to take the chemical test requested, he or she then waives the right to a separate test at his or her own expense, and will be deemed to have refused. Bronn v. City of Tulsa, 837 P.2d 917 (1992 OK CR 51).

Inability to Refuse

Any person who is unconscious or otherwise incapable of refusing to submit to a test of such person’s blood or breath to determine the alcohol concentration thereof, or to a test of such person’s blood, saliva or urine to determine the presence or concentration of any other intoxicating substance therein, shall be deemed not to have withdrawn the consent, and such test may be administered as provided herein.

Administrative and Refusal Suspensions and Revocations

In Oklahoma there is a civil proceeding separate from the criminal matter where a driver might get his or her license suspended for DUI. There are administrative hearing proceedings, governed by 47 O.S. § 754, for those drivers who gave a chemical test above the applicable legal limit. There is also a separate civil license revocation hearing for chemical test refusal cases, governed by 47 O.S. § 753. The difference between these types of hearings is the that matters are at issue.

Administrative Suspension or Revocation

Upon receipt of a written blood or breath test report reflecting that the arrested person, if under twenty-one (21) years of age, had any measurable quantity of alcohol in the person’s blood or breath (deemed to be .02 or higher), or, if the arrested person is twenty- one (21) years of age or older, a blood or breath alcohol concentration of eight-hundredths (0.08) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by 47 O.S. § 6-205.1. Revocation or denial of the driving privilege of the arrested person shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer as provided in this section or by the Department as provided in 47 O.S. § 2-116.

Chemical Refusal Revocation

If a conscious person under arrest refuses to submit to testing of his or her blood or breath for the purpose of determining the alcohol concentration thereof, or to a test of his or her blood, saliva or urine for the purpose of determining the presence or concentration of any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, none shall be given, unless the investigating officer has probable cause to believe that the person under arrest, while intoxicated, has operated the motor vehicle in such a manner as to have caused the death or serious physical injury of any other person or persons. In such event, such test otherwise authorized by law may be made in the same manner as if a search warrant had been issued for such test or tests.

The Commissioner of Public Safety, upon the receipt of a sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance and that the person had refused to submit to the test or tests, shall revoke the license to drive and any nonresident operating privilege for a period as provided by 47 O.S. § 6-205.1. If the person is a resident, or a nonresident without a license or permit to operate a motor vehicle in this state, the Commissioner of Public Safety shall deny to the person the issuance of a license or permit for a period as provided by 47 O.S. § 6-205.1 subject to a review as provided in § 754. The revocation or denial shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer or by the Department as provided in § 754.

Admissibility of refusal – 47 O.S. 756 (A)

The driver’s refusal to take field sobriety tests or a refusal to take requested chemical tests are admissible against him or her in prosecution of a criminal case.

Administrative Zero-Tolerance Cases – 47 O.S. § 756.

If a driver is under 21, zero-tolerance rules apply. If a driver under the age of 21 is stopped with any measurable BAC (deemed to be .02 or higher), the driver is still subject to suspension or revocation of their driving privilege under the timeframes listed above for administrative suspensions/revocations.

Rules for Administrative Hearings

As noted above, there is a civil license suspension or revocation hearing in Oklahoma that is separate from the criminal DUI or DWI case. The issues to be examined are determined by statute and are dependent on whether a chemical test was taken and failed, or whether the driver allegedly refused a chemical test.

Breath Test Administrative Hearing Cases

The hearing before the Commissioner of Public Safety or a designated hearing officer shall be conducted in the county of arrest or may be conducted by telephone conference call. The hearing may be recorded and its scope shall cover the issues of whether the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance as prohibited by law, and whether the person was placed under arrest. 47 O.S. § 754 (C).

If the revocation or denial is based upon a breath test result and a sworn report from a law enforcement officer, the scope of the hearing shall also cover the issues as to whether: a.) if timely requested by the person, the person was not denied a breath or blood test; b.) the specimen was obtained from the person within two (2) hours of the arrest of the person; c.) the person, if under twenty-one (21) years of age, was advised that driving privileges would be revoked or denied if the test result reflected the presence of any measurable quantity of alcohol: d.) the person, if twenty-one (21) years of age or older, was advised that driving privileges would be revoked or denied if the test result reflected an alcohol concentration of eight-hundredths (0.08) or more, and; e.) the test result in fact reflects the alcohol concentration.

Breath Test Refusal Administrative Hearing Cases

If the revocation or denial is based upon the refusal of the person to submit to a breath or blood test, reflected in a sworn report by a law enforcement officer, the scope of the hearing shall also include whether: a.) the person refused to submit to the test or tests, and b.) the person was informed that driving privileges would be revoked or denied if the person refused to submit to the test or tests.

The driver must receive a notice of suspension/revocation if the test results are available at the time of arrest, (or it can be later mailed if the results are not available until later, such as where a blood sample is taken), and the sworn report of the officer must be filed with the Oklahoma Department of Safety. Revocation or denial of the driving privilege of the arrested person shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer.

This type of administrative hearing is not conducted in the district court of the county where the driver was arrested, but is conducted by the Department of Public Safety. The driver does not get a hearing in front of a circuit court judge in the county of arrest unless the driver exhausts all of his or her administrative remedies. In other words, if the driver (in person or by representation) does not appear at the first hearing, rights to an actual trial in circuit court on a de novo appeal are waived.

If the driver wishes to challenge the suspension/revocation of his or her driver’s license for submitting a chemical test over the legal limit, a request for administrative hearing must be filed within 15 days of being served the notice, whether the service was in person or otherwise. There are no exceptions to the 15 day filing rule, and requests that are not timely filed will be denied.

If a request for an administrative hearing is made in a timely manner in such an administrative proceeding, if the individual was legal to drive prior to the arrest for DUI, the driver may keep driving while the hearing is pending. A timely request shall stay the order of the Department until the disposition of the hearing unless the person is under cancellation, denial, suspension or revocation for some other reason. The Department may issue a temporary driving permit pending disposition of the hearing, if the person is otherwise eligible. If the hearing request is not timely filed, the revocation or denial shall be sustained.

If the revocation or denial is sustained, the person whose license or permit to drive or nonresident operating privilege has been revoked or denied may file a petition for appeal in the district court in the manner and subject to the proceedings provided for in 47 O.S. § 6-211. The district court may modify the revocation or denial when it is determined by the court that the person whose license or permit to drive has been revoked or denied has no other adequate means of transportation and may enter a written order directing the Department of Public Safety to allow driving, subject to the limitations of 47 O.S. § 6- 205.1 and the requirement of an ignition interlock device as provided in 47 O.S. § 754.1; provided, any modification under this paragraph shall apply to Class D motor vehicles only.

Rules Governing Administration/Admissibility of Chemical Tests:

Only a licensed medical doctor, licensed osteopathic physician, licensed chiropractic physician, registered nurse, licensed practical nurse, physician’s assistant, certified by the State Board of Medical Licensure and Supervision, an employee of a hospital or other health care facility authorized by the hospital or health care facility to withdraw blood, or other qualified person authorized by the Board of Tests for Alcohol and Drug Influence acting at the request of a law enforcement officer may withdraw blood for purpose of having a determination made of its concentration of alcohol or the presence or concentration of other intoxicating substance. Only qualified persons authorized by the Board may collect breath, saliva or urine, or administer tests of breath under the provisions of this title.

Blood/Urine/Saliva Test – 47 O.S. § 752 (E)

When blood is withdrawn or saliva or urine is collected for testing of its alcohol concentration or other intoxicating substance presence or concentration, at the request of a law enforcement officer, a sufficient quantity of the same specimen shall be obtained to enable the tested person, at his or her own option and expense, to have an independent analysis made of such specimen. The excess blood, saliva or urine specimen shall be retained by a laboratory approved by the Board, in accordance with the rules and regulations of the Board, or by a laboratory that is exempt from the Board rules pursuant to 47 O.S. § 759, for sixty (60) days from the date of collection. At any time within that period, the tested person or his or her attorney may direct that such blood, saliva or urine specimen be sent or delivered to a laboratory of his or her own choosing and approved by the Board for an independent analysis. Neither the tested person, nor any agent of such person, shall have access to the additional blood, saliva or urine specimen prior to the completion of the independent analysis, except the analyst performing the independent analysis and agents of the analyst.

Compliance with Board of Tests Rules

The State has the burden of proving the rules of the Board of Tests are complied with Westerman v. State, 525 P.2d 1359 (1974 OK CR 151). Strict compliance is not a requirement. Simpson v. State, 707 P.2d 43 (1985 OK CR 106).

Expungement

Oklahoma law allows for the expungement of a first alcohol-related offense or administrative action from a person’s driving record. 47 O.S. 22 § 18 sets out the conditions in which a person is entitled to an expungement. Those conditions are

1. The person has been acquitted;
2. The conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction, or an appellate court of competent jurisdiction reversed the conviction and the district attorney subsequently dismissed the charge;
3. The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction, including a person who has been released from prison at the time innocence was established;
4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced;