Author: Frank Urbanic

Left Lane Only For Passing – 2017 Oklahoma Laws #5

oklahoma driving in left lane law

HB 2312 strengthened an existing law covering the restrictions on driving in the left lane. It’s now very clear that a vehicle cannot be driven in the left lane except when overtaking or passing another vehicle if the road is divided into four or more lanes. The law allows for driving in the left lane when traffic conditions or road configuration requires the use of the left lane to maintain safe traffic conditions.

This law has been in the news a lot. There are some pros and cons to it. Overall, I think it’s a good idea. I can’t stand people who just sit in the left lane when there is someone behind them who wants to go faster. It’s discourteous and leads to frustrated drivers. On the other hand, this gives law enforcement yet another reason to pull people over. I believe they still had this justification under the previous version of the law, but the new wording makes it easier for law enforcement to find reasonable suspicion of a traffic violation. I think that we should be looking to decrease the number of reasons law enforcement has to pull people over.

It appears that law enforcement will initially be just issuing warnings. It’s unclear how long this grace period is. Bottom line is … move over!!

This law went into effect and modified 47 O.S. § 11-309.

If you’ve been ticketed for driving in the left lane in Oklahoma,

Don’t panic!

Call Urbanic.

(405) 633-3420

Sources:

Presentence Investigation Changes – New Oklahoma Laws in 2017 Pt 4

presentence investigation oklahomaThe law covering presentence investigations in Oklahoma changed on November 1, 2017. A presentence investigation in Oklahoma is something that’s done after a defendant pleads guilty to a felony. It’s supposed to help the judge determine an appropriate sentence. A presentence investigation is also referred to as a PSI.

The information obtained from the presentence investigation includes:

  •  A voluntary statement from each victim of the offense concerning the nature of the offense and the impact of the offense on the victim and the immediate family of the victim;
  • The amount of the loss suffered or incurred by the victim as a result of the criminal conduct of the offender
  • The age, marital status, living arrangements, financial obligations, income, family history. and education of the defendant;
  • Defendant’s prior juvenile and criminal records;
  • Defendant’s associations with other persons convicted of a felony offense;
  • Defendant’s social history;
  • Indications of a predisposition to violence or substance abuse;
  • Remorse or guilt about the offense or the harm to the victim; and
  • Job skills and employment history of the defendant.

HB 1324 made the following changes to 22 O.S. § 982:

  • It is now optional for the judge to require a defendant convicted of a violent felony offense to undergo a presentence investigation administered by the Department of Corrections.
  • The new maximum amount the Department of Corrections can charge for a presentence investigation is $500 (up from $250).
  • For defendants convicted of nonviolent offenses, a judge may order a presentence investigation be conducted by “a private provider or someone designated by the court.” The defendant in this situation must have a prior felony conviction. The maximum fee for this presentence investigation is $500.

The main effect this change in law has is the increased cost for a presentence investigation. Since the maximum fee is $500, you can be assured that anyone conducting this investigation will charge exactly $500. The other big impact this change will have is on nonviolent offenders, as they will most likely have to get an investigation through a private provider.

If you’ve been charged with a crime in Oklahoma,

Don’t panic!

Call Urbanic.

(405) 633-3420

Sources: 

Seduction & Slander Now Legal – New Oklahoma Laws in 2017 Pt 3

Come November 1, 2017, it will be once again be legal in Oklahoma to seduce a virgin by promising to marry her and slander a woman’s virtue! These antiquated laws will be repealed. This is a start, but Oklahoma still has a long way to go towards modernizing our criminal code.

The full text of the repealed laws is below. The year following the text is the year the law was initially enacted.

779 – Imputation of Unchastity as Slander – Penalty

seduction in oklahomaIf any person shall orally or otherwise, falsely and maliciously or falsely and wantonly impute to any female, married or unmarried, a want of chastity, he shall be deemed guilty of slander, and upon conviction shall be fined not less than Twenty-five Dollars ($25.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail not less than thirty (30) days nor more than ninety (90) days, or by both such fine and imprisonment. 1910

780 – Imputation of Unchastity – Proof – Defense

In any prosecution under the preceding section it shall not be necessary for the state to show that such imputation was false, but the defendant may, in justification, show the truth of the imputation, and the general reputation for chastity of the female alleged. 1910

1120 – Penalty for Seducing Unmarried Female Under Promise of Marriage

Any person who, under promise of marriage, seduces and has illicit connection with any unmarried female of previous chaste character shall be guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding five (5) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.1910

1121 – Subsequent Marriage a Defense

The subsequent marriage of the parties is a defense to a prosecution for a violation of the last section. 1910

1122 – Marriage After Seduction – Penalty for Abandonment

Any person charged by information or indictment with the offense of seduction who shall, before the trial of such charge, marry the female whom he was accused of seducing, thereby procuring the dismissal of such charge, and who shall within two (2) years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce under the laws of this state, shall abandon her or refuse to live with her, or shall be so cruel to her as to compel her to leave him, or shall be guilty of such outrages or cruelties towards her as to make their living together impossible, thereby leaving her or forcing her to leave him, and live apart from each other, shall be guilty of the offense of abandonment after seduction and marriage; and any person convicted of said offense shall be guilty of a felony and shall be confined in the State Penitentiary for a term of not less than two (2) years nor more than ten (10) years; and said marriage shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned as herein provided, shall be a competent witness against said defendant. 1915

If you’ve been charged with a crime in Oklahoma,

Don’t panic!

Call Urbanic.

(405) 633-3420

Sources:

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New Oklahoma Laws In 2017 Part 2 – Illegal To Practice Massage Therapy Without A License

It’s now illegal in Oklahoma to practice massage therapy without a license. The Massage Therapy Practice Act is a completely new law enacted by SB 687. It is found in 59 O.S. §§ 4200.1-4200.13.

oklahoma massage therapyThe Act outlines acts requiring a license, the authority of the State Board of Cosmetology and Barbering, qualifications for a license, how the license is to be displayed, massage therapy school license requirement, the licensing examination, reciprocity, preemption, disciplinary actions, civil immunity for members of the State Board of Cosmetology and Barbering, and what constitutes a misdemeanor violation of the Act. The State Board of Cosmetology and Barbering will make rules necessary for the implementation and enforcement of the Act.

At a time when many licensing schemes across the country are coming under scrutiny as being unnecessary, Oklahoma is going in the opposite direction and requiring another occupation to be licensed. Legislators cited the following reasons for this new law: 1) Establishing standards of minimum competency; 2) Ensuring therapists are qualified to represent themselves to the public as licensed therapists; 3) Helping consumers identify the responsibilities and services unique to a massage therapist; and 4) Enhancing public safety by enforcing disciplinary actions against non-compliant practitioners; 5) Setting a formal grievance process for consumers. I believe the real reason is to cut down on the massage parlors that serve as fronts for prostitution.

Massage Therapy Practice Act Definitions

“Massage therapist” means an individual who practices massage or massage therapy and is licensed under the Massage Therapy Practice Act. A massage therapist uses visual, kinesthetic, and palpatory skills to assess the body and may evaluate a condition to the extent of determining whether massage is indicated or contraindicated.

“Massage therapy” means the skillful treatment of the soft tissues of the human body. Massage is designed to promote general relaxation, improve movement, relieve somatic and muscular pain or dysfunction, stress and muscle tension, provide for general health enhancement, personal growth, education and the organization, balance and integration of the human body and includes, but is not limited to: 1) the use of touch, pressure, friction, stroking, gliding, percussion, kneading, movement, positioning, holding, range of motion and nonspecific stretching within the normal anatomical range of movement, and vibration by manual or mechanical means with or without the use of massage devices that mimic or enhance manual measures, and 2) the external application of ice, heat and cold packs for thermal therapy, water, lubricants, abrasives and external application of herbal or topical preparations not classified as prescription drugs

Massage Therapy Practice Act – Acts Requiring License

The following acts now require a license in Oklahoma: 1) Use the title of massage therapist; 2) Representing oneself to be a massage therapist; 3) Use of any other title, words, abbreviations, letters, figures, signs or devices that indicate the person is a massage therapist; or 4) Utilizing the terms “massage”, “massage therapy” or “massage therapist” when advertising or printing promotional material.

Massage Therapy Practice Act Criminal Violations

It is a misdemeanor to do any of the following: 1) Violate a provision of the Massage Therapy Practice Act or rules adopted pursuant to the Massage Therapy Practice Act; 2) Render or attempt to render massage therapy services or massage therapy instruction without the required current valid license issued by the State Board of Cosmetology and Barbering; 3) Advertise or use a designation, diploma or certificate implying that the person offers massage therapy instruction or is a massage therapy school unless the person holds a current valid license issued by the Oklahoma Board of Private Vocational Schools or is a technology center school accredited by the Oklahoma State Board of Career and Technology Education; or 4) Advertise or use a designation, diploma, or certificate implying that the person is a massage therapist unless the person holds a current valid license issued by the State Board of Cosmetology and Barbering.

This act went into effect on May 1, 2017.

If you are charged with violating the Massage Therapy Practice Act,

Don’t panic!

Call Urbanic.

(405) 633-3420

Sources:

SB 687 – https://images.magnetmail.net/images/clients/ABMP_MEM/attach/OkSB687engrossedfinal.pdf

59 O.S. § 4200.13 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=478776

Article in Tulsa World – http://www.tulsaworld.com/advertisers/oklahoma-legislature-makes-massage-therapy-license-mandatory/article_89614572-5aba-11e7-8b2f-9bb63c1e9187.html

Enact Texas’s Michael Morton Act In Oklahoma

I think most Oklahomans would be shocked to know that prosecutors can legally withhold evidence from a defendant here. A defendant in Oklahoma is not “entitled” to certain evidence until various points in time–typically ten days before trial. In Texas, on the other hand, defendants are entitled to almost every piece of evidence immediately upon requesting it from the state. Additionally, state agencies have a continuing duty to turn over new evidence to a defendant as they come across it.

In an era with so much focus on “criminal justice reform,” there is no reason a version of Texas’s discovery law (aka the Michael Morton Act) can’t be passed in Oklahoma. I have practiced law under both systems; the criminal discovery process in Texas is far easier to navigate and immensely more fair to a defendant.

Who is Michael Morton, and why is there an Act named after him?

Michael Morton was a man in Texas who was wrongly convicted of killing his wife in 1986. DNA evidence exonerated him in 2011. Ken Anderson, the prosecutor in that case, committed misconduct by concealing evidence. Due to this example of a prosecutor withholding evidence and a discovery law in Texas that allowed prosecutors to get away with similar actions, Texas overhauled its law that covered the state’s responsibility to turn evidence over to a defendant. This rewrite of Texas’s discovery law was named the Michael Morton Act.

The Michael Morton Act went into effect in Texas on January 1, 2014. In a nutshell, it mandates that any state agency (including prosecutors and law enforcement) must turn over all evidence in their possession to the defendant upon request. Period. There are a few minor exceptions for evidence such as child pornography. Oklahoma’s current discovery laws are much like Texas’s old discovery law.

Oklahoma’s Discovery Laws

In Oklahoma, prosecutors can withhold evidence with reckless abandon. While Brady v. Maryland requires prosecutors to hand over evidence to defendants that is “material to either guilt or to punishment,” prosecutors can simply claim that Brady doesn’t apply–without even seeing the evidence themselves!

The two primary statutes that cover criminal discovery in Oklahoma are 22 O.S. § 258 and 22 O.S. § 2002. 22 O.S. § 2002 starts off well. It states that, “Upon request of the defense, the state shall be required to disclose the following . . . .” And then it lists a bunch of stuff the state must turn over. BUT . . . it goes on to state that, “Motions for discovery may be made at the time of the district court arraignment or thereafter; provided that requests for police reports may be made subject to the provisions of Section 258 of this title. However, a request pursuant to Section 258 of this title shall be subject to the discretion of the district attorney. All issues relating to discovery, except as otherwise provided, will be completed at least ten (10) days prior to trial.” Concisely, prosecutors don’t have to turn over anything until ten days before trial!

Section 258 covers preliminary hearings. This section further emphasizes the prosecutor’s ability to withhold evidence: “A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime. Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing and enter a bindover order; provided, however, that the preliminary hearing shall be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney’s knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing. The district attorney shall determine whether or not to make law enforcement reports available prior to the preliminary hearing. If reports are made available, the district attorney shall be required to provide those law enforcement reports that the district attorney knows to exist at the time of providing the reports, but this does not include any physical evidence which may exist in the case. This provision does not require the district attorney to provide copies for the defendant, but only to make them available for inspection by defense counsel. In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.” Succinctly, a prosecutor doesn’t even have to turn over police reports prior to a preliminary hearing!

Now, in practice, prosecutors do turn over police reports immediately upon request. I have never had a problem getting those. But the point is that they have the power to withhold even the most basic discovery from defense attorneys. Prosecutors, along with law enforcement, very frequently withhold other much-needed evidence such as videos, audio, and pictures. This is the real problem.

The Way Forward

The authority given to prosecutors to withhold evidence by these statutes is outrageous and has no place in current American law. I have been told by prosecutors on multiple occasions that I am not “entitled” to certain pieces of evidence yet. I’m talking mainly about pictures and video. That type of evidence would be turned over ASAP in Texas without a second thought today. But, prosecutors in Oklahoma today are free to withhold plenty of relevant and important evidence.

The first time I was told by a prosecutor in Oklahoma that I wasn’t “entitled” to evidence (pictures of a complaining witness), I couldn’t believe what I was hearing. Surely that was a joke, I thought. But no, the prosecutor was dead serious. I had come from practicing in Texas, where I had requested and received that sort of evidence with zero problem every time. And now, in Oklahoma, I have even had a prosecutor berate me for asking for a video of a DUI stop “so early,” according to him. Well, excuse me for trying to defend my clients!

This system must change, and now is the time. I am urging Oklahoma legislators to enact a version of Texas’s Michael Morton Act. The language is already there. Prosecutors and defense attorneys had input in crafting the language in Texas, so it is not one-sided. It’s been in effect since 2014 with little modification, so it’s been tested. Sections 258 and 2002 of Title 21 must also be repealed or modified to be in line with Oklahoma’s Michael Morton Act.

With such a focus on criminal justice reform today, there’s no reason this legislation can’t get passed. Imagine the judicial economy if defendants can know how good or bad their case is much earlier. The defense attorney could point out the flaws in a case to a prosecutor early on, and the defendant could have a better outcome then the might have otherwise had. Or, the defendant could find out what a bad case he or she has early on, thus eliminating needless preliminary hearings. In the end, the Oklahoma criminal justice system will be more efficient and fair.

Are we willing to risk the next Michael Morton happening in Oklahoma? Are our prosecutors willing to risk becoming the next Ken Anderson? Keeping the current law is not worth risking those things. And it’s not worth putting justice at risk. Enact the Michael Morton Act in Oklahoma.

Sources:

22 O.S. § 258 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=437009

22 O.S. 2002 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=71117

Texas Code of Criminal Procedure § 39.14 (The Michael Morton Act) – http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.39.htm#39.14

Texas Innocence Project – Michael Morton

Towards More Transparent Justice – The Michael Morton Act’s First Year

If you have been arrested in Oklahoma,

Don’t panic!

Call Urbanic.

405-633-3420

New Oklahoma Laws In 2017 Part 1 – SQ 780 Makes Simple Possession Of All Drugs A Misdemeanor

I saved the best for first! Starting July 1, 2017, simple possession of every drug becomes a misdemeanor. It doesn’t matter how many times you’ve been convicted of drug possession, what kind of drug it is, where you were caught with it, or whether there was a child with you–it’s ALL a misdemeanor. This change was due to 58% of Oklahoma voters passing State Question 780 in November 2016. SQ 780 amends 63 O.S. § 2-402.

The change moves Oklahoma from one of the harshest states for drug possession to likely the most lenient for drug possession. Generally, the law just prior to SQ 780 going into effect was as follows:

  • Felony to be caught with any Schedule I or II substance except marijuana
  • Felony to be caught a second or subsequent time with marijuana or any Schedule II, IV, or V substance
  • Felony to be caught with any controlled substance within 1000 feet of a school and a bunch of other places
  • Felony to be caught with any controlled substance with a child under 12 present

All of those qualifiers are now GONE! It’s very simple now–it’s all a misdemeanor. The change is radical, but it’s what Oklahoma needs. Oklahoma has the second highest incarceration rate in the country, and has the highest incarceration rate for women.

Oklahoma Drug Laws Offenses, Penalties, & Your Rights

Get Help

We are sick and tired of our prisons being filled with people who don’t belong there. Meddling politicians tried to change the law in 2017 before it was even implemented, but thankfully those bills died. Power to the people!!!

Unfortunately, the law is not retroactive. So, people arrested for simple drug possession through June will be charged under the old version of the statute even though they were charged after the new version went into effect.

If you have been arrested for drug possession in Oklahoma …

Don’t panic!

Call Urbanic

405-633-3420

Sources:

Text of SQ 780 – https://www.sos.ok.gov/documents/questions/780.pdf

63 O.S. § 2-402 – http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=479470

 

Who You Can Have Sex With In Oklahoma – Oklahoma’s Age Of Consent Law

 

I’m a frequent poster on Avvo.com. The question we get on there, by far, goes something like, “I’m X years old. Can I have sex with someone who is Y years old?”. The answer to this question requires a look at of Oklahoma’s age of consent, incest, and rape laws.The age of consent in Oklahoma is 16. Therefore, it is generally legal for a 16-year-old to have sex with anyone older than them. Sex between people who are 15-18 years old is generally lawful. A variety of exceptions make that sex illegal.

21 OS § 1111 states that rape occurs when the victim is 15 years old or younger. However, 21 OS § 1112 states that a person cannot be convicted of rape when the consensual sex occurred with someone over 14 unless the person was 19 years or older.

21 OS § 1111 also states that the following sex is also illegal:

  • Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim. Translation: No sex by government employees with someone who is under the custody of a governmental agency if that agency the employee works for exercises authority over the victim.
  • Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system. Translation: A school employee who is 18 or older can’t have sex with a student in that same school system who is younger than 20.
  • Where the victim is nineteen (19) years of age or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant. Translation: Foster parents can’t have sex with their foster children if the foster child is 19 or younger.

Per 21 OS § 885, incest is illegal. 43 OS § 2 outlines the parameters of whom it would be illegal to have sex with. Sex between people of the following relation is illegal:

  • ancestors and descendants of any degree,
  • a stepfather with a stepdaughter,
  • stepmother with stepson,
  • uncles and nieces,
  • aunts and nephews, except in cases where such relationship is only by marriage,
  • brothers and sisters of the half as well as the whole blood, and
  • first cousins.

If you’ve been charged with rape or incest,

Don’t panic!

Call Urbanic.

(405) 633-3420

Sources:

21 OS § 1111 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69602

21 OS § 1112 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69604

21 OS § 885 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69416

43 OS § 2 – http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=71787

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