Category: Blog

Alcohol Laws Modernized – 2018 Oklahoma Laws #2

Oklahoma Criminal Defense Attorney
In November 2016, Oklahomans voted to significantly change our alcohol laws. Those changes went into effect on October 1, 2018.

Here are the big-picture changes:

  • Liquor stores can sell refrigerated beer and wine
  • Grocery stores and gas stations can sell chilled beer stronger than 3.2% ABV
  • Grocery stores and gas stations can sell wine and chilled high-point beer every day of the week from 6 a.m. until 2 a.m., including Sundays
  • Liquor stores can sell refrigerated beer and wine from 8 a.m. until midnight. However, liquor stores will still not be open on Sunday
  • Employees at grocery and convenience stores have to be at least 18 in order to handle or sell beer or wine
  • Beer in grocery stores can be up to 8.99% ABV, and wine can be up to 15% ABV
  • Only liquor stores can sell beer or wine greater than 8.99 ABV
  • The direct shipment of wine to and from Oklahoma is allowed
  • Liquor stores can sell items other than alcohol, as long as those sales don’t exceed 20% of monthly sales

The rest of this blog post goes over the new liquor laws that have criminal implications.

Prohibited Acts by Commission Members and Employee

No member or employee of the ABLE Commission may:

  • Be appointed or serve who has been convicted of a felony or of any violation of any federal or state law relating to alcoholic beverages;
  • Directly or indirectly, individually or as a member of a partnership, or as a shareholder of a corporation, have any interest whatsoever in the manufacture, sale or distribution of alcoholic beverages;
  • Receive any compensation or profit therefrom, nor have any interest, directly or indirectly, in any business authorized by a license issued pursuant to the provisions of the Oklahoma Alcoholic Beverage Control Act. The holding of membership or elective or appointed office in fraternal organizations which obtain licenses authorized by the Oklahoma Alcoholic Beverage Control Act is not considered to be engagement in the alcoholic beverage business;
  • Solicit or accept any gift, gratuity, emolument, or employment from any person subject to the provisions of the Oklahoma Alcoholic Beverage Control Act, or from any officer, agent, or employee thereof;
  • Solicit, request from, or recommend, directly or indirectly, to any such person or to any officer, agent or employee thereof, the appointment of any person to any place or position, and every such person, and every officer, agent or employee thereof, is hereby forbidden to offer to any member or employee of the ABLE Commission any gift, gratuity, emolument or employment;
  • Accept employment within the alcoholic beverage industry for any holder of a license issued pursuant to the provisions of the Oklahoma Alcoholic Beverage Control Act; or
  • Represent, directly or indirectly, any such licensee in any proceedings before the Director, the ABLE Commission or the Tax Commission within two years following separation from the ABLE Commission.

It’s a misdemeanor to violate any of the above. In addition to the penal provisions, any person convicted will be immediately removed from the office or position he or she holds.

It’s illegal for any member or employee of the ABLE Commission to lend, expend, or contribute any money, funds, property, or other thing of value, or use his or her official position for the purpose of securing the nomination or election or the defeat of any candidate for public office in the State of Oklahoma. This crime is a misdemeanor. The range of fine is $2,500–$5,000. The maximum jail time is one year. If found guilty, the individual will be discharged from the office or position he or she holds and will not be rehired to any state position.

Source: 37A O.S. § 1-110

 

Sale or Shipping of Alcoholic Beverages by Out of State Entities

Oklahoma Criminal Defense Attorney

It’s illegal to manufacture, rectify, sell, possess, store, import into or export from Oklahoma, transport or deliver any alcoholic beverage except as specifically provided in the Oklahoma Alcoholic Beverage Control Act. Nothing in this law prevents the possession and transportation of alcoholic beverages for the personal use of the possessor and his or her family and guests, so long as the Oklahoma excise tax has been paid on that alcohol, except for beer. Nothing in this law prevents a person from making beer, cider, or wine, by simple fermentation and without distillation for personal use if the maker of such beverages has first applied for and possesses a valid personal use permit issued by the ABLE Commission; the total volume of beer, cider, or wine produced in any given calendar year must be less than 200 gallons. Beverages made pursuant to a personal use permit can’t be sold or offered for sale. A personal use license is also referred to as a “cider/wine” permit or a “hobby permit.” There is currently no fee for a personal use license. The application for a personal use license can be found here.The fee for this license is $0.

Any duly licensed physician or dentist may possess and use alcoholic beverages in the strict practice of the profession. Any hospital or other institution caring for sick or diseased persons may possess and use alcoholic beverages for the treatment of bona fide patients of such hospital or institution. Any drugstore employing a licensed pharmacist may possess and use alcoholic beverages in the preparation of prescriptions of duly licensed physicians.

The possession, transportation and dispensation of wine by any authorized representative of any church for the conducting of a bona fide rite or religious ceremony conducted by such church is not prohibited. The sale, shipping, or delivery of sacramental wine by any person holding a sacramental wine supplier license issued pursuant to the Oklahoma Alcoholic Beverage Control Act to any religious corporation or society of this state holding a valid exemption from taxation issued pursuant to Section 501(a) of the Internal Revenue Code, 1954, and listed as an exempt organization in Section 501(c)(3) of the U.S. Internal Revenue Code.

The possession, transportation, and sale of alcoholic beverages within military reservations and in accordance with the laws and rules governing such military reservations is legal so long as the Oklahoma excise tax has been paid on such beverages.

It’s illegal for any manufacturer, wine and spirits wholesaler, beer distributor, or retailer of alcoholic beverages, located and doing business from outside Oklahoma, to make retail sales of alcoholic beverages to purchasers located in Oklahoma or to ship alcoholic beverages sold at retail to persons located in Oklahoma. This crime is a felony if the sale or delivery is made to a person under 21. The maximum punishment in the Department of Corrections is five years. This crime is a misdemeanor if the sale or delivery is made to a person 21 or older. The maximum fine in either case is $5,000. If the person holds a license issued by the ABLE Commission, the license will be revoked.

Sources: 37A O.S. § 3-101 & Fee schedule for licenses

 

Sale of Beer Kegs – Identification Seal – Records of Sales – Theft of Keg from Purchaser

An identification seal must be affixed to beer kegs that are for sale.IT must be approved by the ABLE Commission and display an identification number and any other information that may be prescribed by the ABLE Commission. Intentional removal or defacement of the seal is a misdemeanor.

Anyone who purchases a beer keg and who fails to return the keg or who returns a keg with a damaged or missing seal shall be subject to a fine of $500.00.

Any licensed retailer who fails to report an individual to law enforcement who purchased a beer keg and who failed to return the keg or who returned a keg with a damaged or missing seal commits a misdemeanor. The minimum fine for the first and second offenses is $500. A third violation by a licensed retailer will result in the revocation of the retailer’s license for up to one year.

Anyone who purchases a beer keg that is subsequently stolen is not be liable for any penalty imposed if that person properly reported the theft of the beer keg to law enforcement authorities within 24 hours of the discovery of the theft.

Source: 37A O.S. § 3-104 

 

Direct Wine Shipper’s Permit – Direct Wine Consumer’s Permit – Rules – Duty of Common and Contract Carriers

Oklahoma Criminal Defense Attorney

No express company, common carrier, or contract carrier nor any representative, agent, or employee on behalf of the same may knowingly deliver any shipping container that contains an alcoholic beverage into Oklahoma, unless it complies with Oklahoma Law. No express company, common carrier, or contract carrier nor any representative, agent, or employee on behalf of the same may knowingly deliver any shipping container that is clearly labeled as containing an alcoholic beverage, including but not limited to the lawful shipment of wine under Oklahoma Law, to any person in this state who is under 21 at the time of delivery. It’s a misdemeanor for any express company, common carrier, or contract carrier that carries or transports alcoholic beverages for delivery within Oklahoma to violate Oklahoma’s law on the shipment of alcoholic beverages. The fine for the first offense is up to $2,500. The fine for the second offense is up to $5,000. The fine for the third and subsequent offenses is up to $10,000. An express company, common carrier and contract carrier will be held vicariously liable for the actions of its representatives, agents and employees for actions in violation of Oklahoma’s law on the shipment of alcohol.

Source: 37A O.S. § 3-106 

 

Sale of Alcoholic Beverages to Licensed Wine and Spirits Wholesalers

A manufacturer or subsidiary of a manufacturer who markets its products solely through a subsidiary or subsidiaries, a distiller, rectifier, bottler, winemaker or importer of alcoholic beverages, bottled or made in a foreign country, either within or without this state, must sell such beverages only to wine and spirits wholesalers. This does not apply to brewers.

Manufacturers can’t require a wine and spirits wholesaler or beer distributor to purchase any alcoholic beverages or any goods, wares, or merchandise as a condition to the wine and spirits wholesaler or beer distributor obtaining or being entitled to purchase any alcoholic beverages.

Violation of this law is a misdemeanor. Conviction automatically revokes the violator’s license.

Source: 37A O.S. § 3-116

 

Bottle Clubs

Criminal Defense Attorney in Oklahoma

It’s a misdemeanor for a bottle club licensee, or employee, or agent of such a licensee to sell an alcoholic beverage to a member. The fine is $1,000. The club license will be revoked for 30 days.

It’s a misdemeanor for a bottle club licensee, or employee or agent of such a licensee to delivers or furnish an alcoholic beverage to a member that does not belong to the member The range of fine is $500.00–$1,000. The club license will be revoked for 30 days.

It’s a misdemeanor for a bottle club licensee, or employee or agent of such a licensee to permits any person who is not a member to enter and remain in the designated bar or lounge area of the club premises. The fine is $1,000. The bottle club license will be suspended for 30 days. No bottle club licensee, or employee or agent of such a licensee may serve alcoholic beverages to any person who does not possess a valid membership card for that club issued by the club.

Source: 37A O.S. § 3-127

 

Mixed Beverage Tax Permits

Every holder of a mixed beverage, if not catered, beer and wine, caterer, hotel beverage, public event, if not catered, or special event license, issued by the ABLE Commission, has to obtain a mixed beverage tax permit from the Oklahoma Tax Commission prior to selling, preparing, or serving mixed beverages, ice, or nonalcoholic beverages that are sold, prepared, or served to be mixed with alcoholic beverages. Each licensee must file a verified application for a mixed beverage tax permit with the Tax Commission.

It’s a misdemeanor to engage in the above activities without a mixed beverage permit or after a permit has been suspended. The maximum punishment in jail is 60 days. The maximum fine is $1,000.

Source: 37A O.S. § 5-107

 

Possession of More than One Liter of Beverage with Excise Tax Levied but Unpaid

It’s a misdemeanor to possess more than one liter of alcoholic beverage, the bottle or other original container upon which the excise tax has not been paid as provided for by the Oklahoma Alcoholic Beverage Control Act. If you hold a license under the Oklahoma Alcoholic Beverage Control Act, then your license will be subject to revocation or suspension by the ABLE Commission.

Source: 37A O.S. § 5-118

 

Invoices and Bills of Lading – Contents – Person Receiving Shipment to Demand and Retain Copy

Every manufacturer, wine and spirits wholesaler, beer distributor, or nonresident seller selling alcoholic beverages in Oklahoma, or selling alcoholic beverages for shipment into Oklahoma must, at the time such sale is made, make and deliver to the purchaser or transporter an invoice, bill of lading, manifest, or other document describing such alcoholic beverages, showing:

  1. The date of such sale or delivery;
  2. The name and ABLE Commission license number of the seller;
  3. The point of origin of the movement of such alcoholic beverages and the destination of same;
  4. The kind and quantity and a description of such alcoholic beverages, including the proof of all spirits;
  5. The name and ABLE Commission license number of the purchaser;
  6. The sale price; and
  7. Such other information as the Oklahoma Tax Commission may, by form or rule, require.

Every invoice, bill of lading, manifest, or other document describing such alcoholic beverages, except beer, must be identified by consecutive numbers printed upon the invoice or document, and every seller and purchaser must account for each copy of his or her invoice and each number thereof.

Every common carrier and private carrier, and every person who transports any alcoholic beverages from any point within Oklahoma to any other point within outside Oklahoma, or into Oklahoma must at all times, while such alcoholic beverages are in transit, have in the possession of the driver or operator of the transporting carrier or vehicle the invoice, bill of lading, manifest, or other document describing the alcoholic beverages being transported.

Every manufacturer, wine and spirits wholesaler or beer distributor importing into or purchasing in Oklahoma any alcoholic beverage, and any retailer purchasing any alcoholic beverage in Oklahoma, must at the time of delivery or acceptance of such alcoholic beverage, demand and receive a proper bill of lading, invoice, manifest, or other document, particularly describing such alcoholic beverage and showing the proof of all spirits.

Every manufacturer, wine and spirits wholesaler, beer distributor, nonresident seller, and retailer must retain one copy of each invoice, bill of lading, manifest, or similar document covering all such sales and purchases by such licensee, as a part of the permanent records of such licensee for a period of at least three years.

A violation of this law is a misdemeanor—whether you are acting for yourself or as an agent or licensee. Any violation of the provisions of this law also constitutes grounds for the revocation by the ABLE Commission of any license issued under the Oklahoma Alcoholic Beverage Control Act.

Source: 37A O.S. § 5-125

Read More: How Does An Officer Determine Intoxication?

Matching of Alcoholic Beverages to Wholesaler Invoices

No mixed beverage, beer and wine, caterer, public event, or special event licensee nor any officer, agent, or employee of such licensee may possess or permit to be possessed on the premises, for which the license was issued, any container of an alcoholic beverage that isn’t listed on an invoice from the wholesaler from whom the alcoholic beverage was purchased, unless otherwise permitted by law.

All containers of alcoholic beverages that are on the premises of a mixed beverage, beer and wine, caterer, public event, or special event licensee and aren’t listed on an invoice from the wholesaler pursuant to the provisions of this law are considered contraband. Any duly authorized employee of the ABLE Commission or the Oklahoma Tax Commission is authorized to seize such containers or cases. Those seized containers or cases are subject to confiscation and forfeiture.

A violation of this law by any holder of a wholesaler, mixed beverage, beer and wine, caterer, public event, or special event license is a misdemeanor. Their license is subject to revocation or suspension.

Source: 37A O.S. § 5-137

 

Prohibition on the Consumption of Alcohol by Invitee Under 21

It’s illegal to knowingly and willfully permit someone under 21, who is an invitee to your residence, any building, structure, or room owned, occupied, leased or otherwise procured by you or on any land owned, occupied, leased, or otherwise procured by you, to possess or consume any alcoholic beverage or controlled dangerous substance, in such place.

This crime is a misdemeanor for the first offense. The maximum fine is $500. If you violate this law within ten years of either 1) violating this same law; 2) violating the provisions of another state prohibiting the same activity; or 3) violating an ordnance in a municipal court of record that prohibits the same activity, then the maximum fine will be $1,000.

This crime becomes a felony after you have been twice convicted of violating this law, the provisions of any law of another state prohibiting this activity, a municipal ordnance from a municipal court of record prohibiting this activity, or any combination of the above. The maximum punishment in the Department of Corrections is five years. The maximum fine is $2,500.

A violation of this law that causes great bodily injury or the death of a person is a felony. The maximum punishment in the Department of Corrections is five years. The range of fine is $2,500–$5,000.

It is illegal to disturb the peace of any person:

  1. In any public place, or in or upon any passenger coach, streetcar, or in or upon any other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station or room, drink or otherwise consume any intoxicating liquor (unless authorized by law), intoxicating substance or intoxicating compound of any kind, or inhale glue, paint, or other intoxicating substance;
  2. While drunk or intoxicated in any public or private road, or in any passenger coach, streetcar or any public place or building, or at any public gathering, from drinking or consuming such intoxicating liquor, intoxicating substance or intoxicating compound or from inhalation of glue, paint or other intoxicating substance; or
  3. While drunk or intoxicated from any cause.

This crime is a misdemeanor. The range of punishment in jail is 5–30 days. The range of fine is $10–$100.

Source: 37A O.S. § 6-101

 

Altering or Rendering Illegible Branding

It is illegal to erase, remove, obliterate, destroy, or render illegible in any manner any serial numbers, marks, brands, legends, license numbers, case numbers, or other information required by the Oklahoma Alcoholic Beverage Control Act or by Acts of Congress to be attached or placed upon any original containers or cases containing alcoholic beverages before the contents of such packages or cases have been entirely removed. This crime is a misdemeanor.

Source: 37A O.S. § 6-112

 

Failure to Possess Distiller’s License

It’s illegal to operate a whiskey still with the intent to produce alcoholic beverages. It’s also illegal to carry on the business of a distiller without possessing a valid and existing distiller’s license. This crime is a felony. The maximum punishment in the Department of Corrections is three years. The range of dine is $2,500–$5,000.

Source: 37A O.S. § 6-115

 

Filing Fraudulent Tax Returns

It’s illegal to file a false or fraudulent return in connection with any tax imposed by the Oklahoma Alcoholic Beverage Control Act. It’s also illegal to willfully evade, or attempt to evade, any alcohol tax. These crimes are felonies. The maximum punishment in the Department of Corrections is three years. The range of fine is $2,500–$5,000.

Source: 37A O.S. § 6-116

 

Failure to Possess Required License

It’s illegal to knowingly engage in any activity or perform any transaction or act for which a license is required under the Oklahoma Alcoholic Beverage Control Act without a license. The first offense is a misdemeanor. The range of punishment in jail is 30 days–6 months. The maximum fine is $2,500. A second and subsequent offense is a felony. The maximum punishment in the Department of Corrections is one year. The maximum fine is $2,500.

Source: 37A O.S. § 6-117

 

Unauthorized Sale, Possession, or Purchase of Alcohol

It’s illegal for any person holding a license issued pursuant to the Oklahoma Alcoholic Beverage Control Act to sell or deliver an alcoholic beverage to any person not entitled to purchase or receive it (except as provided by law). It’s also illegal for any person holding a license issued pursuant to the Oklahoma Alcoholic Beverage Control Act to have for sale any alcoholic beverage that he or she is not entitled to sell under the license. It’s also illegal for any person to buys an alcoholic beverage (either retail or wholesale) from any person other than a licensed dealer under the terms of the Oklahoma Alcoholic Beverage Control Act. This crime is a misdemeanor. The maximum punishment in jail is six months. The maximum fine is $1,500.

Source: 37A O.S. § 6-118

 

Buying Alcohol With a Fake ID

It’s illegal for someone under 21 years of age to try to buy alcohol with a fake ID. It’s also illegal for someone under the age of 21 to enter a package store or a separate or enclosed bar area (as designated by the ABLE Commission). This crime is a misdemeanor. The maximum fine is $50.

Additionally, if a person is convicted or pleads guilty to a violation of this law in any court having jurisdiction over the offense, the court may order the Department of Public Safety to cancel or deny the offender’s privilege to operate a motor vehicle. Upon such order, the court must require that the operator’s or chauffeur’s license, if any, be surrendered to the Department of Public Safety. The cancellation or denial period will be for one year, or until the person reaches 21, whichever is longer.

Any person whose driver license is ordered cancelled or denied pursuant to this law may petition the court of original jurisdiction for review of the order. Upon notice and hearing, the court may modify or withdraw the order as the court deems appropriate except:

  1. A court may not withdraw an order for at least 90 days following the issuance of the order if it is the first such order issued regarding the person named; and
  2. A court may not withdraw an order for at least six months following the issuance of the order if it is the second or subsequent such order issued regarding the person named. If the Department of Public Safety receives written notice from the court of original jurisdiction that it has withdrawn such an order, the Department has to immediately reinstate any driving privileges that have been canceled or denied under this law, without requiring payment of a reinstatement fee.

Someone convicted of a violation of the provisions of this law has to complete a substance abuse prevention program conducted by the Department of Mental Health and Substance Abuse Services or a private entity approved by the Department. Such program must include at least two sessions, each of which shall be not less than two hours long.

Source: 37A O.S. § 6-119

 

Selling, Finishing, or Giving Alcohol to an Underage Person

It’s illegal to furnish or give an alcoholic beverage to someone under 21. This crime is a misdemeanor for the first offense. The maximum punishment in jail is one year. The maximum fine is $500. A second and subsequent violation of this law is a felony. The maximum punishment in the Department of Corrections is five years. The range of fine is $2,500–$5,000.  The ABLE Commission will revoke the license of any person convicted of a violation of this law.

Source: 37A O.S. § 6-120 

 

Selling, Furnishing, or Giving an Alcoholic Beverage to an Insane, Mentally Deficient or Intoxicated Person

It’s illegal to knowingly sell, furnish, or give an alcoholic beverage to an insane, mentally deficient, or intoxicated person. The first violation is a misdemeanor. The maximum punishment in jail is one year. The maximum fine is $500. A second and subsequent violation of this law is a felony. The maximum punishment in the Department of Corrections is five years. The range of fine is $2,500–$5,000.  The ABLE Commission will revoke the license of any person convicted of a violation of this law.

Source: 37A O.S. § 6-121

Read More: After A DUI Arrest In Oklahoma, Should I Request A DPS Hearing Or Modified License With Interlock?

Hours of Operation to Sell Alcohol

It’s illegal to sell or keep a package store open to sell any alcoholic beverage during any day or hours not authorized by the Oklahoma Alcoholic Beverage Control Act. It’s also illegal to sell or permit the sale of alcoholic beverages at a grocery store, convenience store, or drug store during any day or hours not authorized by the Oklahoma Alcoholic Beverage Control Act. The first violation is a misdemeanor. The maximum punishment in jail is one year. It is punishable by a fine of up to $500. A second and subsequent violation of this law is a felony. The maximum punishment in the Department of Corrections is five years. The range of fine is $2,500–$5,000.  The ABLE Commission will revoke the license of any person convicted of a violation of this law.

Source: 37A O.S. § 6-123

 

Permitting a Person to be Intoxicated on Licensee’s Premises

It’s illegal for any licensee to allow a person to be drunk or intoxicated on the licensee’s licensed premises. This crime is a misdemeanor. The maximum punishment in jail is 30 days. The maximum fine is $100.

Source: 37A O.S. § 6-124

 

Violation of the Oklahoma Alcoholic Beverage Control Act

If a provision of the Oklahoma Alcoholic Beverage Control Act does not prescribe a specific penalty, then the crime is a misdemeanor. The maximum punishment in the county jail is six months. The maximum fine is $500.

Provided, however, notwithstanding any provision of law to the contrary, any offense, including traffic offenses, in violation of any of the provisions of the Oklahoma Alcoholic Beverage Control Act that is not otherwise punishable by a term of imprisonment or confinement will be punishable by a term of imprisonment not to exceed one day in the discretion of the court, in addition to any fine prescribed by law.

Source: 37A O.S. § 6-125

These laws went into effect because Oklahomans approved State Question 792 in 2016. That ballot measure was codified in SB 383. Additional changes were made in SB 646.

Have you been arrested for violating an Oklahoma alcohol law? Contact Oklahoma City alcohol law attorney Frank Urbanic.

Don’t panic!

Call Urbanic.

405-633-3420

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Possession Of CDS With Intent To Distribute & Other Major Drug Crimes Punishments Reduced – 2018 Oklahoma Laws #1

Drug CrimesThe severity of punishment will be reduced in Oklahoma for possession CDS with intent to distribute, distribution & manufacture of CDS & imitation CDS, use of a minor to sell drugs, selling drugs to a minor, selling drugs in the presence of a young child, and possessing/transporting with intent to distribute & manufacturing CDS within 2000 ft of a school/park/project/child care facility. Anyone convicted of those offenses for a second or subsequent time will not be considered a habitual offender, which means the sentencing enhancement statute can’t be used. The eligibility for a deferred sentence, a suspended sentence, and probation has greatly increased for someone convicted of those crimes.

Transporting Or Possessing CDS With Intent To Distribute

The punishments were broken down previously into the following groups:

  1. Any narcotic that’s in Schedule I or II, LSD, gamma butyrolactone, gamma hydroxyvalerate, gamma valerolactone, 1,4 butanediol, 1,4 butanediol, and GHB.
  2. Any other CDS in Schedule I, II, III, or IV.
  3. Schedule V substances.

The change in law doesn’t put specific drugs into a separate category and lumps Schedule V drugs in with Schedule III and IV drugs. New punishments:

  1. Any Schedule I or II substance (except marijuana):
    • First offense – up to seven years in prison (was 5-life); up to $100,000 fine
    • Second offense – up to 14 years in prison (new)
    • Third and subsequent offenses – up to 20 years in prison (new)
  2. Any CDS in Schedules III, IV, and V, including marijuana:
    • First offense – up to five years in prison; up to $20,000 fine
    • Second offense – up to ten years in prison
    • Third and subsequent offenses – up to 15 years in prison

Previously, the range of punishment for every offense (including the first), except for Schedule V drugs, was five years-life. To put in perspective how dramatic of a change this law is, not only is there now no minimum time no matter how many times someone has committed this offense–but the caps on third and subsequent offenses are 20 and 15 years. The only time someone used to be eligible for probation was on a first offense. Now, a defendant is eligible for probation regardless of how many times they have been convicted of possession with intent to distribute.

Transporting Or Possessing Imitation CDS With Intent To Distribute

The first offense for an imitation controlled substance is still a misdemeanor. The maximum punishment on a second offense has been reduced from five years in prison to two.

Distribution & Manufacturing CDS & Synthetic CDS

The law change specifies ranges of punishment for the distribution or manufacture of a CDS and synthetic CDS:

  • First offense – up to ten years in prison; up to $25,000 fine
  • Second offense – 2-20 years in prison
  • Third and subsequent offenses – ten years-life in prison

Someone convicted of these crimes two or more times will no longer be considered a habitual offender. The previous maximum fine was $100,000. The provision requiring the offender on second and subsequent offenses to be fined twice the fine authorized has been removed. New language specifically states that offenders are eligible for probation, deferred sentences, and suspended sentences. In the previous version of this law, this subsection only addressed synthetic controlled substances. There’s a conflict between this subsection and another subsection in this statute that covers the manufacture of CDS, which remained unchanged.

Using A Minor To Distribute Drugs, Distributing Drugs To A Minor, & Distributing CDS In The Presence Of A Young Child

Punishment for someone 18 or older who uses or solicits the use of services of someone who is less than 18 to distribute, dispense, transport with intent to distribute, dispense, or cultivate a CDS; distributes a CDS to a person under 18, or distributes a CDS in the presence of a person under 12:

  • First offense – 2-10 years in prison
  • Second offense – 4-20 years in prison
  • Third and subsequent offenses – 10 years-life

An adult distributing a CDS in the presence of someone under 12 is now a separate crime.

Possessing With Intent To Distribute, Transporting With Intent To Distribute, Or Manufacturing CDS Within 2000 ft Of A School, Park, Public Housing Project, Or Child Care Facility

  • First offense – term of imprisonment not more than twice that authorized by the respective provision of this section; there is no longer a requirement that the defendant serve at least 50% of their sentence
  • Second and subsequent offenses – term of imprisonment not more than three times that authorized by the respective provision of this section; defendant is not eligible for a deferred sentence, suspended sentence, or probation; this is no longer an 85% crime

Someone convicted of a second and subsequent crime of transporting or possessing with an intent to distribute a CDS, distribution of a CDS, using or soliciting the services of someone less than 18 to distribute, dispense, transport with the intent to distribute or dispense or cultivate a CDS, distributing a CDS to someone under 18, or distributing a CDS in the presence of someone under 12 may not be punished as a habitual offender under 21 O.S. § 51.1. The only crimes in this statute for which someone who is convicted of a second and subsequent offense may be treated as a habitual offender is manufacturing or attempting to manufacture a CDS.

SB 793 amends 63 O.S. § 4-401. It goes into effect on November 1, 2018. This law is not retroactive, so it will not apply to offenses committed before November 1, 2018.

Sources: SB 79363 O.S. § 4-401

Oklahoma Possession CDS With Intent To Distribute Attorney

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Call Urbanic.®

405-633-3420

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Can I Get A Gun License In Oklahoma If I Have A Medical Marijuana Card?

oklahoma gun permit marijuana card

Under the language enacted by SQ 788, a medical marijuana license holder may have and be issued a gun license. Section 245A in Title 63 of the Oklahoma Statutes states, “No person holding a medical marijuana license may unduly be withheld from holding a state issued license by virtue of their being a medical marijuana license holder. This would include such things as a concealed carry permit.” A concealed carry permit is now referred to as a handgun permit.

It’s believed that the new medical marijuana law overrides language in 21 O.S § 1290.10. It says that someone may not have a gun license if that person is ineligible to possess a pistol due to any provision of Oklahoma or U.S. law, except for felons who have been pardoned. Federal law states that anyone who is a user of a substance that the federal government considers illegal (which currently still includes marijuana) may not legally possess a gun or ammunition. Since this law is so new, the courts may ultimately have to decide this issue.

Even if you’re allowed to get a gun permit as a medical marijuana license holder under this new law, you still can’t legally possess a firearm or ammunition. Firearms dealers may not sell a gun or ammunition to anyone they have reason to believe is an illegal drug user (per federal law). Possession of a medical marijuana license would give a firearms dealer sufficient reason to believe someone is an illegal drug user (under federal law).

Would The OSBI Or A Gun Dealer Know That I Have A Medical Marijuana License?

It is unlikely that the OSBI or firearms dealers would know whether you had a medical marijuana license. This is due to the protections in 63 O.S. § 420A. It states that “The State Department of Health will ensure that all application records and information are sealed to protect the privacy of medical license applicants.” Therefore, we can assume that medical marijuana license information will remain private to everyone unless the individual discloses their status. The only way a firearms dealer would know that you have a medical marijuana license is if you told them about your medical marijuana license or used your medical marijuana license as a form of identification.

SOURCES: 18 U.S.C. § 922, ATF Form 4473, 18 U.S.C. § 924, & ATF 2011 Letter

Charged with a marijuana crime? Call Oklahoma marijuana defense attorney Frank Urbanic.

Don’t panic!

Call Urbanic.®

405-633-3420

Can I Have A Gun If I Have A Medical Marijuana License In Oklahoma?

oklahoma medical marijuana

On June 26, 2018, voters in Oklahoma overwhelmingly approved medical marijuana by approving SQ 788. The legality of having a gun while possessing a medical marijuana license became a hot topic immediately after the vote. According to federal law, it’s illegal to possess a gun if you are a medical marijuana license holder regardless of state law.

The federal law that controls this issue is 18 U.S.C. § 922. Subsection (g) states that it’s unlawful for “any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Succinctly, anyone who illegally uses any drug defined as a controlled substance by the federal government cannot possess a gun. Marijuana is a Schedule I substance on the federal schedule, so the federal government considers every user of marijuana an illegal use of a controlled substance. Possessing a state license for medical marijuana doesn’t make somebody a legal marijuana user in the eyes of the federal government. Note that you don’t have to be an addict for this statute to apply—merely a user.

Possessing a gun or ammunition as a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years. Furthermore, it’s illegal “for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).” Succinctly, it’s illegal to sell or transfer a gun to someone you reasonably believe is an illegal drug user. What could give someone the reasonable belief that you’re an illegal drug user? A medical marijuana license! The Bureau of Alcohol, Tobacco, Firearms and Explosives stated in a 2011 letter that if a transferor knows that a potential transferee of a firearm possesses a card authorizing the possession and use of marijuana under state law, then the transferor has “reasonable cause to believe” that the person trying to get the firearm is an unlawful user of a controlled substance. The ATF further stated that “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”

Knowingly transferring a firearm or ammunition to a user of illegal drugs is a felony. The maximum punishment in federal prison is ten years.

If you buy a gun, you have to fill out ATF Form 4473, Firearms Transaction Record. Question 11e asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” And right after that question, it has in bold print “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.” A gun seller may not legally sell a gun to anyone who checks “yes” to that question.

The bottom line is that you lose your gun rights if you use marijuana—whether it’s illegally or under a state-sanctioned medical marijuana program. Nobody may legally sell a gun or ammunition to someone they reasonably believe uses marijuana. Therefore, individuals seeking a medical marijuana license will have to weigh the risks and benefits of that course of action.

As more states legalize marijuana for both recreational and medicinal use, something clearly needs to give here. Oklahoma’s approval of medical marijuana has been called a tipping point in the legalization of marijuana, and more states will follow. For now, however, it’s a federal crime to own a gun and use marijuana, and it’s a federal crime to transfer a gun to a marijuana user. The federal government must remove the threat of violating a federal law from otherwise law-abiding citizens and remove marijuana from the list of controlled substances.

SOURCES: 18 U.S.C. § 922, ATF Form 4473, 18 U.S.C. § 924, & ATF 2011 Letter

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New Oklahoma Criminal Laws In 2017 – Summary

These are the significant Oklahoma criminal laws that went into effect in 2017:

  1. SQ 780 Makes Simple Possession Of All Drugs A Misdemeanor
  2. Illegal To Practice Massage Therapy Without A License
  3. Seduction & Slander Now Legal
  4. Presentence Investigation Changes
  5. Left Lane Only For Passing
  6. Minors Prohibited From Using Tanning Facilities
  7. Military 21 & Older Can Carry Handgun Without Permit
  8. Change To Statute Of Limitations For Child Sexual Abuse Victims
  9. Oklahoma Legislature Jacks Up More Fees On Defendants
  10. Domestic Abuse Victims Can Transfer Wireless Phone Numbers & Utilities
  11. All Rape By Instrumentation Is Now First Degree Rape
  12. Statute Of Limitations Change For Sexual Crimes Against Children
  13. Must Instruct Jury On Definition Of Consent In Sex Crime Cases
  14. Sex Offender Registration Requirements Change
  15. Charging State Subcontractors With Sex Crimes
  16. Harsher Punishment For Cop Killers
  17. Risk And Needs Assessment For Prisoners
  18. Marijuana Definition Changed
  19. New Drugs Added To Schedules
  20. Self-Defense Exception Added To Pointing A Weapon
  21. Handguns In Courthouses
  22. New Prohibited Areas For Carrying Handguns
  23. Military Gets Handgun License
  24. Motorcycle Concealed Carry
  25. Handgun Added To Definitions In Self-Defense and Firearms Acts
  26. Immunity For Business Owners For Weapons While In The Scope Of Employment
  27. Domestic Violence Court Program
  28. New Trespass & Damage To Critical Infrastructure Law
  29. Doesn’t Matter If You Don’t Know Human Trafficking Victim’s Age
  30. Misdemeanors Removed From DNA Fee
  31. Notification Of Crime Victims
  32. Victims Impact Panel Changes
  33. Destruction Of Obscene Material & Child Pornography
  34. Laws Outlawing Activities By Telephone Company & Message Carriers Repealed

This is likely the most comprehensive list of 2017 Oklahoma criminal laws around. I personally researched and wrote each post. I owe it to my clients to be knowledgeable on the changes in law. Writing this annual list is an opportunity to educate myself and the public. I welcome any feedback you have on this list or future updates to Oklahoma criminal laws.

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Laws Outlawing Activities By Telephone Company & Message Carriers Repealed – 2017 Oklahoma Laws #34

HB 1003 repealed seven laws. This included the prohibition against a telegraph company or employee transmitting any message to a person placing bets on a horse race. Six laws codifying the duties of message carriers were also repealed. The laws listed below were repealed on November 1, 2017

21 O.S. § 992 – Assisting Unlawful Business by Telegraph

Any telegraph company, its agent or employee that intentionally transmits or delivers any message to any pool room or person engaged in any manner in receiving, making or placing bets on any horse race, such company will be fined at least $500 and no more than 1,000 for each offense, and any agent or employee violating any of the provisions of this act will be fined at least $200 and no more than $500. The range of punishment in the county jail is 30-90 days. This law went into effect in 1913 and had not been amended since then.

13 O.S. § 171 – Delivery to Place or Person Intended

A carrier of messages for reward must deliver them at any place to which they are addressed, or to the persons for whom they are intended. This law went into effect in 1910 and had not been amended since then.

13 O.S. § 172 – Care and Diligence Required

A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages. A carrier by telegraph must use the utmost diligence therein. This law went into effect in 1910 and was never amended.

13 O.S. § 173 – Telegraphs to be Transmitted Immediately – Order

A carrier of messages by telegraph must, if it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable, and several messages accumulate upon his hands, he must transmit them in the following order:

  1. Messages from public agents of the United States, or of this state on public business.
  2. Messages intended in good faith for immediate publication in newspapers, and not for any secret use.
  3. Messages giving information relating to the sickness or death of any person.
  4. Other messages, in the order in which they were received.

This law went into effect in 1910 and was never amended.

13 O.S. § 174 -Messages Other than Telegraph – Order – Exception

A common carrier of messages, otherwise than by telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this state on public business, to which he must always give priority. But he may fix upon certain times for the simultaneous transmission of messages previously received. This law went into effect in 1910 and was never amended.

13 O.S. § 175 – Actual Damages for Refusal or Postponement of Message

Every person whose message is refused or postponed, contrary to the provisions of this article, is entitled to recover from the carrier his actual damages, and $50 in addition thereto. This law went into effect in 1910 and was never amended.

13 O.S. § 176 – Telegraph Companies Liable

All telegraph companies doing business in this state for hire shall be liable for damages to any person injured thereby for mental anguish or suffering, even in the absence of bodily injury, or pecuniary loss, for negligence in receiving, transmitting or delivering messages; and in all actions of this kind, the jury, or court may award such damages as they conclude resulted from the negligence of such telegraph company. This law went into effect in 1917 and was never amended.

Destruction Of Obscene Material & Child Pornography – 2017 Oklahoma Laws #33

The destruction of obscene material or child pornography upon final conviction has been extended to “any codefendant.” Previously, obscene material or child pornography had to be destroyed upon conviction of the accused. Now, it must be destroyed upon final conviction of the accused and any codefendant.

The magistrate or law enforcement must destroy the material. The district attorney must now consent to the destruction of that material. The material to be destroyed includes, but is not limited to, the destruction of any computer, hard drive, or other electronic storage media of the accused or codefendant on which such obscene material or child porn was located.

A “final conviction” includes the exhaustion of or failure to timely pursue post-conviction and state and federal habeas corpus review.

HB 1811 amended 21 O.S. § 1024.4. The law went into effect on November 1, 2017.

Sources: HB 1811 & 21 O.S. § 1024.4

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Victims Impact Panel Changes – 2017 Oklahoma Laws #32

oklahoma victims impact panelThis law changed the definition of “victims impact panel” in Oklahoma. It’s now a program conducted by a corporation registered with the Secretary of State in Oklahoma for the purpose of operating a victims impact panel program. The meeting must now include live presenters. In addition to discussing the operation of a vehicle while impaired, the discussion may now also include the operation of a motor vehicle using an electronic device. People who have committed the offense of driving while using an electronic device must now attend a victims impact panel. A certified assessment agency or certified assessor may now provide a victims impact panel so long as he assessment agency or certified assessor is granted an exemption by the Commissioner of the Department of Mental Health and Substance Abuse Services. The provider of the victims impact panel program must now annually provide the Administrative Office of the Courts various information. The minimum fee of $15 has been dropped.

What Is A Victims Impact Panel In Oklahoma?

“Victims impact panel program” in Oklahoma is a program conducted by a corporation registered with the Secretary of State in Oklahoma for the purpose of operating a victims impact panel program. The program must include live presentations from presenters who will share personal stories with participants about how alcohol, drug abuse, the operation of a motor vehicle while using an electronic communication device, or the illegal conduct of others has personally impacted the lives of the presenters. A victims impact panel program must be attended by people who have committed the offense of driving, operating or being in actual physical control of a motor vehicle while under the influence of alcohol or other intoxicating substance, operating a motor vehicle while the ability of the person to operate such vehicle was impaired due to the consumption of alcohol or any other substance, or operating a motor vehicle while using an electronic device. Persons attending a victims impact panel program must pay no more than $60 to the provider of the program. A certificate of completion will be issued to the attendee upon satisfying the attendance and fee requirements of the victims impact panel program. The certificate of completion must contain the business identification number of the program provider. A victims impact panel program may not be provided by any certified assessment agency or certified assessor unless the assessment agency or certified assessor has been granted an exemption by the Commissioner of the Department of Mental Health and Substance Abuse Services. The provider of the victims impact panel program must carry general liability insurance and maintain an accurate accounting of all business transactions and funds received in relation to the victims impact panel program. The provider of the victims impact panel program must annually provide to the Administrative Office of the Courts the following:

  1. proof of registration with the Oklahoma Secretary of State,
  2. proof of general liability insurance,
  3. end-of-year financial statements prepared by a certified public accountant, and
  4. a copy of federal income tax returns filed with the Internal Revenue Service.

SB 252 amended 22 O.S. § 991a. The changes went into effect on November 1, 2017.

Sources: SB 25222 O.S. § 991a

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Notification Of Crime Victims – 2017 Oklahoma Laws #31

oklahoma crime victimThis law mandates various notification requirements for crime victims. The district attorneys and Department of Corrections must comply with these new requirements.

The district attorney’s office must inform crime victim that the have the right to use the automated notification system provided by the designated Oklahoma victim notification service provider for purposes of receiving information regarding the location of the defendant following an arrest, during a prosecution of the criminal case, during a sentence to probation or confinement, and when there is any release or escape of the defendant from confinement.

The Department of Corrections has to provide notice of the projected date of release of an inmate to the designated Oklahoma victim notification service provider within 60 days but not less than seven days prior to the projected date of release of the inmate.

Opinions of the Oklahoma Court of Criminal Appeals designated for official publication must be published on the Oklahoma State Courts Network (OSCN) website. The Oklahoma Court of Criminal Appeals is requested to provide notice of release of its opinion to all subscribers of record who have requested copies of opinions not less than two business days prior to publication of the opinion on the website. Notice to the parties will be made via electronic mail or on OSCN.

Prior to placement of any eligible inmate assigned to the Electronic Monitoring Program being placed in a community setting, the Department of Corrections must deliver a written notification to the sheriff and district attorney of the county and the chief law enforcement officer of any incorporated city or town in which the inmate is to be monitored and supervised under the program. The Department of Corrections must provide notice of the projected date of release of an inmate to the designated Oklahoma victim notification service provider within 60 days but not less than seven days prior to the projected date of release of the inmate.

HB 1680 amended 21 O.S. § 142A-2, 21 O.S. § 142A-13, & 57 O.S. § 510.9 and created 22 O.S. § 1071.1 & 57 O.S. § 360.1.

Sources: HB 1680, 21 O.S. § 142A-221 O.S. § 142A-13, 57 O.S. § 510.9, 22 O.S. § 1071.1, & 57 O.S. § 360.1.

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