Category: Blog

Restraints on Pregnant Inmates-2018 Oklahoma Laws #22

This legislation created a new section of law that covers what type of restraints may be used on pregnant inmates. A violation of this new law is a misdemeanor.

When Restraints May Be Used

pregnant oklahoma inmateAll penal institutions, detention centers, and county jails must use the least restrictive restraints necessary when the facility has actual or constructive knowledge that an inmate is pregnant. The presumption is that no restraints of any kind may be used, unless otherwise directed by the physician in charge:

  1. When transporting an inmate who is in labor;
  2. During any phase of labor;
  3. While the inmate is delivering her baby; or
  4. While the inmate is recuperating from the delivery of her baby, unless there are compelling grounds to believe that the inmate presents an immediate and serious threat of harm to herself, staff, or others or is a substantial flight risk and cannot be reasonably contained by other means.

Prior to labor, if it’s necessary to ensure the safety of the inmate, staff or others, only the least restrictive restraints necessary may be used. They must be used in a way that mitigates adverse clinical consequences. Consultation with medical staff is required prior to application of restraints. Written approval from the warden of a penal institution, director of a detention center, or sheriff of a county jail is required, unless there are compelling grounds to believe that the inmate presents an immediate and serious threat of harm to herself, staff, or others or is a substantial flight risk and can’t be reasonably contained by other means. Correctional officers must be available and will be required to remove restraints upon request from medical personnel.  

Prohibited Restraints

The following restraints and control techniques are prohibited:

  1. Abdominal restraints;
  2. Four-point restraints or placing the pregnant inmate in a facedown position;
  3. Leg and ankle restraints that may increase the risk of forward falls; and
  4. Any kind of chain restraints where the inmate is linked to any other inmate.

In general, the least restrictive restraints necessary must be a frontal wrist restraint which, if used, must be applied in such a way that the pregnant inmate is able to protect herself and the fetus in the event of a forward fall.

Privacy and Notice of Restraints

To maintain privacy, when appropriate, correctional officers will be positioned outside the room of the inmate, unless requested by the physician in charge. Any female inmate confined in a penal institution, detention center, or county jail must receive notice in writing (in a language and manner understandable to the inmate) about the requirements of this law upon admission to the penal institution, detention center, or county jail. The inmate must receive this same notice again when the inmate is known to be pregnant. The warden, director, or sheriff must publish notice of the requirements of this section in prominent locations where medical care is provided to female inmates. All penal institutions, detention centers and county jails must ensure that pregnant inmates have access to one of the following during delivery:

  1. A family member or a friend who has previously been approved on the visitors list of the penal institution, detention center, or county jail;
  2. A member of the clergy; or
  3. A doula; provided, during delivery the doula services are furnished by a certified doula without charge to the penal institution, detention center, or county jail. In such a case, the inmate must make arrangements for the doula services and must notify the penal institution, detention center, or county jail of such request in advance.

A “certified doula” is an individual who has received a certification to perform doula services from a nationally recognized childbirth education association. “Doula services” means continuous emotional and physical support throughout labor and birth and intermittently during the prenatal and postpartum periods.  

Penalty For Violation of Prisoner Restraint Law

It’s a misdemeanor for any correctional officer or county detention officer to use restraints on a pregnant inmate as prohibited by the provisions of this law. The maximum punishment in the county jail is one year, and the maximum fine is $1,000.

HB 3393 created 57 O.S. § 4.2. It went into effect November 1, 2018.

Sources: HB 3393 and 57 O.S. § 4.2

Charged with prisoner abuse in Oklahoma? Call Oklahoma criminal defense lawyer Frank Urbanic in OKC at 405-633-3420.

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Stalking With GPS-2018 Oklahoma Laws #21

oklahoma stalking lawThis legislation changed the definition of “stalking.” Under Oklahoma’s law, it’s illegal to willfully, maliciously, and repeatedly follow or harass someone in a manner that:

  1. Would cause a reasonable person or a member of the immediate family of that person to feel frightened, intimidated, threatened, harassed, or molested; and
  2. Actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

“Harasses” means a pattern or course of conduct directed toward another individual that includes, but is not limited to, repeated or continuing unconsented contact, that would cause a reasonable person to suffer emotional distress, and that actually causes emotional distress to the victim. Part of the definition of “unconsented contact” includes “following or appearing within the sight of that individual.” This legislation expanded on the definition of “following” to include:

  • the tracking of the movement or location of an individual through the use of GPS device or other monitoring device by a person, or person who acts on behalf of another, without the consent of the individual whose movement or location is being tracked. Note that this doesn’t apply to the lawful use of a GPS device or other monitoring device or to the use by a new or used motor vehicle dealer or other motor vehicle creditor of a GPS device or other monitoring device, including a device containing technology used to remotely disable the ignition of a motor vehicle, in connection with lawful action after default of the terms of a motor vehicle credit sale, loan or lease, and with the express written consent of the owner or lessee of the motor vehicle.

This law came about because an Oklahoma legislator was being secretly tracked by GPS. It’s believed that the secret GPS tracker was placed on his vehicle by someone in the wind industry due to his outspoken criticism of tax incentives for wind farms. This will limit–if not eliminate–the ability of private investigators to place GPS trackers on the vehicles of people they are following.

HB 3260 modified 21 O.S. § 1173. It went into effect on May 1, 2018.

Sources: HB 3260 and 21 O.S. § 1173; Article on this legislation from The Oklahoman

Charged with stalking in Oklahoma? Call Oklahoma criminal defense lawyer Frank Urbanic in OKC at 405-633-3420.

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Drug Court Eligibility Expanded-2018 Oklahoma Laws #20

oklahoma drug court participantThe eligibility for drug court expanded under this legislation. HB 2881 amended 22 O.S. §§ 471.2-471.4. The changes went into effect on November 1, 2018. The opportunity for review of an offender for a drug court program may now happen at any time prior to the disposition of the case and sentencing of the offender. This includes sentencing on a petition to revoke a suspended sentence or any probation violation. Previously, the initial opportunity for review of an offender had to occur within four days after the arrest. Now, admission to a drug court program within the previous five years won’t make an offender ineligible for consideration into a new program. The drug court investigation now may be conducted before or after the initial hearing for consideration but must happen before the hearing for final determination of eligibility for the drug court program. Previously, the investigation had to be conducted after the initial hearing for consideration. I don’t believe these changes will have a big impact in Oklahoma. On July 1, 2017, all simple possession of drug crimes were reclassified from felonies to misdemeanors. Therefore, as time goes on, less and less people will be eligible for the primary drug court. Some counties have established misdemeanor drug courts. However, the penalties for a misdemeanor are far less significant than those for a felony. It’s likely that many people would rather just take a misdemeanor conviction rather than going through the pain of participating in misdemeanor drug court. Sources: HB 2881 and 22 O.S. §§ 471.2, 471.3, & 471.4

Interested in participating in an Oklahoma drug court? Call Oklahoma drug court lawyer Frank Urbanic in OKC at 405-633-3420.

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Electronic Monitoring Eligibility-2018 Laws #19

oklahoma prisonerThe eligibility for electronic monitoring of inmates in Oklahoma has increased. The electronic monitoring program is for inmates in the custody of the Department of Corrections who are sentenced for a nonviolent offense. The electronic monitoring program requires active supervision of the inmate in a community setting with monitoring by a global positioning device.

An inmate no longer must be incarcerated for at least 90 days to be eligible. That time requirement is gone and is replaced with a requirement that the inmate have a “home offer.” There was a previous exclusion of inmates serving a sentence over five years (with 11 months or more left on their sentence). That exclusion has been modified to exclude only those serving a sentence exceeding ten years (with 24 or more months left on their sentence). This legislation clarifies that inmates convicted of a violent offense or an 85% crime within the previous 10 years are ineligible. An inmate is now eligible for electronic monitoring if he or she has been:  

  • Convicted of drug trafficking;
  • Denied parole within the previous 12 months; or
  • Removed from the Electronic Monitoring Program or any other alternative to incarceration authorized by law for violation of any rule or condition of the program and reassigned to imprisonment in a correctional facility.

Previously, inmates who escaped from any penal or correctional institution within the previous ten years were ineligible. Now, only those who have escaped from medium or maximum institutions are ineligible. HB 2630 modified 57 O.S. § 510.9. It went into effect on May 8, 2018. Sources: HB 2630 & 57 O.S. § 510.9

Arrested in Oklahoma? Call Oklahoma criminal defense lawyer Frank Urbanic in OKC at 405-633-3420.

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Sex Offenders-2018 Oklahoma Laws #18

oklahoma sex offenderOne of these updates to Oklahoma law was named the “Justice for Danyelle Act of 2018.” It was named after a girl whose molester lived next door to her. HB 1124 expands the places where a sex offender can’t loiter or live. A sex offender now may not live within a 2,000 ft radius of the residence of his or her victim. A sex offender is now prohibited from loitering within 1,000 ft of his or her victim if:

  1. the person who committed a sex crime against the victim has been convicted of said crime, and
  2. the person is required to register pursuant to the Sex Offenders Registration Act.

A sex offender now can’t live within a 2,000 ft radius of a “family child care home.” This change came from HB 3330.

These changes went into effect on November 1, 2018.

Sources: Analysis of Justice for Danyelle Act, Article on Justice for Danyelle bill, HB 1124, HB 3330, 21 O.S. § 1125, & 57 O.S. § 590

Arrested for a sex crime in Oklahoma? Call Oklahoma sex crime attorney Frank Urbanic in OKC at 405-633-3420.

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Sex Offenses – 2018 Oklahoma Laws #17

This change expanded rights to human trafficking victims and expanded the definitions of forcible sodomy, rape, and lewd/indecent acts/proposals. 

 

Protection of Human Trafficking Victims

human trafficking oklahomaUnder this new law, a law enforcement office has more obligations when encountering a victim of human trafficking. It also obligates district court and OJA employees to act. Any law enforcement officer or employee of a district court, juvenile bureau, or Office of Juvenile Affairs who has reasonable suspicion that a minor may be a victim of human trafficking and is in need of immediate protection must assume protective custody over the minor and immediately notify the Department of Human Services. The minor will be transferred to the emergency custody of DHS of the Oklahoma Statutes. While in custody of the Department, the minor must be provided with any necessary emergency social services that include, but aren’t limited to, medical examination or treatment or a mental health assessment.

Law enforcement and the Department of Human Services will conduct a joint investigation into the claim.

The minor will remain in the custody of the Department of Human Services until the investigation has been completed, but for no longer than two (2) judicial days (used to be 72 hours), for the show-cause hearing. The Department may release the minor to the custody of a parent or legal guardian if it determines the minor will not be subject to further exploitation. If no such determination is made, the minor will be subject to the deprived child provisions of the Oklahoma Children’s Code and made eligible for appropriate child welfare services.

The minor will not be subject to juvenile delinquency proceedings for prostitution or other nonviolent misdemeanor offenses committed as a direct result of being a victim of human trafficking. It will be an affirmative defense to delinquency or criminal prosecution for any misdemeanor or felony offense that the offense was committed during the time of and as the direct result of the minor being the victim of human trafficking.

 

Forcible Sodomy Definition Expanded

The definition of forcible sodomy expanded to include:

  • Sodomy committed upon a person who is at least 16 years old but less than 18 years old by a person responsible for the child’s health, safety or welfare. “Person responsible for a child’s health, safety or welfare” includes but is not limited to:
    • a parent,
    • a legal guardian,
    • custodian,
    • a foster parent,
    • a person 18 years old or older with whom the child’s parent cohabitates,
    • any other adult residing in the home of the child,
    • an agent or employee of a public or private residential home, institution, facility or day treatment program, or
    • an owner, operator or employee of a child care facility.

 

Definition of Rape Expanded

The definition of rape expanded to include:

  • Where the victim is at least 16 years old but less than 18 years old and the perpetrator of the crime is a person responsible for the child’s health, safety or welfare. “Person responsible for a child’s health, safety or welfare” includes but is not limited to:
    • a parent,
    • a legal guardian,
    • custodian,
    • a foster parent,
    • a person 18 years old or older with whom the child’s parent cohabitates,
    • any other adult residing in the home of the child,
    • an agent or employee of a public or private residential home, institution, facility or day treatment program, or
    • an owner, operator or employee of a child care facility.

Here’s how this change can impact things:

  • Sex between step-siblings is now illegal if one step-sibling is 18 years old or older and living with the other and the other is 16 or 17 years old. The old step-sibling would be considered “any other adult residing in the home of the child.”
  • Consider a situation where an 18-year old male (could be female, but is male for the sake of argument) has a girlfriend who is 16 or 17 years old. If that male moves in with his girlfriend and has sex with her (even if they were having sex prior to his moving in), then that sex would now be considered rape. He would also be considered “any other adult residing in the home of the child.” If the male moves out of the house, then he can once again have sex legally with his 16 or 17 year old girlfriend.
  • Sex between a stepchild and his or her stepparent is not per-se illegal under the incest law. This change criminalizes some sex between a stepparent and stepchild. If the stepchild is 16 or 17 and living with the parent and stepparent, then the stepparent would be considered “a person 18 years old or older with whom the child’s parent cohabitates.” The stepparent would also be considered “any other adult residing in the home of the child.”

 

More Lewd or Indecent Proposals or Acts to a Child Under 16

It’s now illegal to knowingly and intentionally force or require a child to defecate or urinate upon the body or private parts of another, in a lewd and lascivious manner and for the purpose of sexual gratification.

 

Definition of Lewd and Indecent Proposals/Acts Expanded

It’s now a felony for any parent or person responsible for the child’s health, safety or welfare to commit a lewd or indecent proposal or act or commit sexual battery when the victim is at least 16 years old but less than 18 years old. The maximum punishment in the Department of Corrections is ten years.”Person responsible for a child’s health, safety or welfare” includes but is not limited to:

  • a parent,
  • a legal guardian,
  • custodian,
  • a foster parent,
  • a person 18 years old or older with whom the child’s parent cohabitates,
  • any other adult residing in the home of the child,
  • an agent or employee of a public or private residential home, institution, facility or day treatment program, or
  • an owner, operator or employee of a child care facility.

SB 1005 modified 21 O.S. §§ 748.2, 888, 111, & 1123. These changes went into effect on November 1, 2018.

Sources: SB 1005 and 21 O.S. §§ 748.2, 888, 111, & 1123

Arrested for a sex crime in Oklahoma? Call Oklahoma sex crime attorney Frank Urbanic in OKC at 405-633-3420.

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Juveniles & Youthful Offenders – 2018 Oklahoma Laws #16

These bills affected several Youthful Offender statutes. Changes included representation of a youthful offender, youthful offender preliminary hearing, the length of time a youthful offender could be under the custody of the Office of Juvenile Affairs, and the deferral of delinquency proceedings. They went into effect on November 1, 2018.

Representation of a Youthful Offender

oklahoma youthful offenderAppointment of counsel is now mandatory when a petition is filed pursuant to 2-5-201 of the Children and Juvenile Code. Appointment under that provision or a petition under 2-104 of the Children and Juvenile Code, the representation must exist at every hearing or review through the completion or dismissal of the case.

Before making an order of disposition, the court must now also advise the  child’s attorney of the factual contents and the conclusion of reports prepared for the use of the court and considered by it, and afford fair opportunity, if requested, to controvert them. This is in addition to the prior requirement of notifying the district attorney, the parents, guardian, custodian or responsible relative, and their counsel. This change also now gives the child’s counsel the right to move to continue a hearing to receive more reports.

This change clarifies that youthful offender court records for the person who is certified to stand trial as an adult or youthful offender are considered adult records. All reports, evaluations, motions, records, exhibits, or documents regarding the educational history, mental health, or medical treatment or condition of the offender that are submitted to the court or admitted into evidence during the hearing on the motion for certification as a youthful offender to the juvenile system or motion for imposition of an adult sentence will be confidential and will be filed or admitted under seal, except that such records will be provided to the Office of Juvenile Affairs. Any testimony regarding the reports, evaluations, motions, records, exhibits or documents shall be given in camera and will not be open to the general public; provided, all persons having a direct interest in the case as must be allowed to be present during the testimony but will be admonished not to discuss the testimony following the hearing. All reports, evaluations, motions, records, exhibits, or documents will be released from under seal by order of the court if the youthful offender is sentenced to the custody or supervision of the Department of Corrections by the court or if the juvenile or youthful offender is later charged as an adult with a felony crime.

Youthful Offender Preliminary Hearing

A preliminary hearing is supposed to occur within 90 days of the filing of the information. Now, If the preliminary hearing does not commence within 90 days from the filing of the information due to the absence or inability to locate the accused, the preliminary hearing must commence within 90 days after the state has actual notice of the in-state location of the accused. If the accused is found out of state, the court must set the hearing within 90 days after the accused has been returned to Oklahoma.

Length of Time Under Custody of Office of Juvenile Affairs

A youthful offender may not remain in the custody or under the supervision of the Office of Juvenile Affairs beyond the youthful offender’s maximum age of 18 years and six months or until 19 years of age if jurisdiction has been extended. Previously the youthful offender could only remain in the custody of the Office of Juvenile Affairs until the YO was 18 years and five months old.

Upon the youthful offender attaining the age of 18 years and six months, the Office of Juvenile Affairs may recommend that the youthful offender be returned to the custody or supervision of the Office of Juvenile Affairs until the age of 19 to complete the reintegration phase of the treatment program or community supervision as determined by the Office of Juvenile Affairs. During any period of extension, a youthful offender may be transferred to the Department of Corrections, whether the youthful offender is placed in an out-of-home placement or in the community.

If the court has extended jurisdiction of the youthful offender until 19 years old, the youthful offender will remain in custody or under the supervision of the Office of Juvenile Affairs until the youthful offender has been discharged or sentenced by the court or until the youthful offender’s 19th birthday, at which time the youthful offender will be returned to the court for final disposition of the youthful offender’s case. Any order issued by the sentencing court under this part of the law will be a final order, appealable when entered.

Deferral of Delinquency Adjudication Proceedings

A court may defer delinquency adjudication proceedings for one hundred eighty (180) days. Previously, that was the only length of time possible to defer these proceedings. Now, a court can defer proceedings an additional 180 days if the court determines that the child has made satisfactory progress and that such extension is necessary to accomplish treatment goals and objectives.

Sources: SB 224, SB 1066, 10A O.S. §§ 2-2-301, 2-2-404, 2-2-501, 2-4-107, 2-5-2042-5-2052-5-2062-5-2072-5-208, & 2-5-209

Charged as a youthful offender in Oklahoma? Call Oklahoma criminal defense attorney Frank Urbanic in OKC at 405-633-3420.

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Immunity For Reporting Drug Overdose – 2018 Oklahoma Laws #15

drug overdose oklahomaThis new law provides immunity from prosecution for drug-related offenses under certain circumstances. It applies to situations that arise from someone seeking medical attention after a drug overdose.

A law enforcement officer may not arrest someone based solely on the commission of an offense involving a controlled dangerous substance described in subsection B of this section if the officer, after making a reasonable determination and considering the facts and surrounding circumstances, reasonably believes that all of the following apply:

  1. The officer has contact with the person because the person requested emergency medical assistance for an individual who reasonably appeared to be in need of medical assistance due to the use of a controlled dangerous substance; and
  2. The person:
    1. provided his or her full name and any other relevant information requested by the peace officer,
    2. remained at the scene with the individual who reasonably appeared to be in need of medical assistance due to the use of a controlled dangerous substance until emergency medical assistance arrived, and
    3. cooperated with emergency medical assistance personnel and officers at the scene.

Anyone who meets the above criteria is immune from criminal prosecution for possession of a Schedule I or Schedule II controlled dangerous substance, provided the amount of such controlled dangerous substance does not constitute trafficking, and for possession of drug paraphernalia associated with a controlled dangerous substance. Further, a person is only immune from prosecution for the aforementioned offenses if the offense involved a state of intoxication caused by the use of a controlled dangerous substance by a person or if the offense involved the person being or becoming intoxicated as a result of the use of a controlled dangerous substance by a person.

A person may not initiate or maintain an action against an officer or the employing political subdivision of the officer based on the compliance or failure of the officer to comply with this law. SB 1367 created 63 O.S. § 2-413.1. It went into effect November 1, 2018.

Sources: SB 1367 and 63 O.S. § 2-413.1

Arrested for possession of CDS in Oklahoma? Call Oklahoma drug attorney Frank Urbanic in OKC at 405-633-3420.

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DUI Law Changes – 2018 Oklahoma Laws #14

arrested dui oklahomaFor a very brief time, our DUI statute gave prosecutors the discretion to not use a prior DUI to enhance the punishment on a subsequent DUI. The discretion in this statute was removed when HB 2643 went into effect on April 23, 2018. This discretion was in our DUI law from November 1, 2016-April 23, 2018.

Enhancements possible under our DUI law:

  1. Second DUI is a felony (generally–subject to various restrictions and exceptions)
  2. DUI after first felony DUI conviction is 1-10 years in prison
  3. DUI after two felon DUI convictions is 1-20 years in prison

This isn’t that big of a deal for two reasons. First, the prosecutors hardly–if ever–used this discretion. The typical prosecutor will usually try to maximize all enhancement possible. Second, there’s another law that gives a prosecutor the discretion to charge a non-85% crime as a misdemeanor. Therefore, a prosecutor could theoretically choose to charge all of the above as misdemeanors. Again, prosecutors hardly, if ever, take advantage of that discretion. That discretion remains the law today, and I highly doubt any prosecutor will put it to use. Therefore, if you are arrested for a second (or subsequent) DUI, expect for the prosecutor to go for enhancing your sentence to the maximum extent possible.

Sources: HB 2643 and 47 O.S. 11-902

Arrested for DUI in Oklahoma? Call Oklahoma DUI attorney Frank Urbanic in OKC at 405-633-3420.

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Easier To Get A Public Defender – 2018 Oklahoma Laws #13

hire attorney oklahoma cityThis law removes the posting of a bond as a rebuttable presumption that the defendant is not indigent. Now, if a defendant is admitted to bail and the defendant, or another person on behalf of the defendant, posts a bond (other than by personal recognizance) the court may consider that in determining whether the defendant is eligible for a public defender/OIDS appointed counsel. Such consideration may not be the sole factor in the determination of eligibility. This means the court must now look at other factors to determine whether someone is eligible for a public defender. It’s now the intent of the Oklahoma Legislature that a criminal defendant be entitled to an individualized determination of bail as guaranteed by the Oklahoma Constitution.

This is a great update to our law. Indigent defendants get bailed out all the time by friends and family members. Or, maybe all the defendant had left was the $100 needed to bail out. I’ve seen defendants threatened by judges countless times with going back to jail if they didn’t hire a private attorney that day. They will tell the defendant that they bailed out, so they’re not entitled to a public defender. They’re told that the only way they can get a public defender is to go back to jail. Defendants often beg the judge for mercy and tell them how they don’t have any money–it’s a relative or friend who bailed them out. Unsympathetic judges will then throw the defendant in jail if they don’t come back with a private attorney.

The flip side of this legislation is the pressure that this will put on public defenders and appointed counsel under the Oklahoma Indigent Defense System (OIDS). This legislation doesn’t call for more funding of PDs/OIDs attorneys. There will undoubtedly be more people requesting and getting public defenders. This will lead to an even greater caseload on overburdened attorneys. Public defenders are some of the best attorneys you will find. However, they simply don’t have enough time to dedicate to each case than a private attorney typically has.

Sources: SB 1021, 19 O.S. § 138.5, 22 O.S. § 1355A, & 20 O.S. § 55

Arrested in Oklahoma? Call Oklahoma criminal defense attorney Frank Urbanic in OKC at 405-633-3420.

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