Legislative Payback or Public Safety? Sara Polston’s Shocking Constitutional Fight!

Quick Links

• What SB 137 changes
• The offense SB 137 targets
• Polston’s constitutional challenge
• The State’s strongest arguments
• What the federal court could decide
• Could Sara Polston be sent back to prison without SB 137?
• How will the federal court likely decide this case?

Charged with DUI causing great bodily injury?

The Urbanic Law Firm can review the offense date, sentence, program status, and later legal changes to determine which timing and constitutional issues matter. 

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What SB 137 Changes in Oklahoma

SB 137 amends the Electronic Monitoring Program in 57 O.S. § 510.9. It makes two changes that matter directly to Polston. First, the law adds inmates convicted under the serious-injury provision of the motor-vehicle accident statute to the program’s ineligible list. Second, it adds a mandatory consequence for losing eligibility: “Loss of eligibility for the program shall result in removal of the inmate from the program.”

The newly excluded group includes people convicted of causing an accident resulting in great bodily injury while driving under the influence under 47 O.S. § 11-904(B). SB 137 doesn’t change that offense’s elements or punishment. Instead, it changes eligibility for a DOC custody program.

The timing creates the constitutional fight. Before SB 137, the law said an eligible inmate assigned to electronic monitoring “shall remain” there until sentence discharge, parole, or removal for violating a program rule or condition. Polston’s complaint alleges that none of those events has occurred. The dispute isn’t merely about future eligibility; it’s about taking away a community-placement status she already received.

The Offense SB 137 Targets

The underlying DUI resulting in great bodily injury offense is a Class B1 felony. It carries four to twenty years in DOC custody and a fine of up to $5,000. SB 137 doesn’t increase that statutory sentencing range.

Key Elements

The applicable jury instruction 6-22 identifies the elements used for a DUI resulting in great bodily injury charge. Depending on the prosecution theory, the State must establish the following:

• You caused an accident.
• The accident resulted in great bodily injury to another person.
• You were driving a motor vehicle.
• The driving occurred on a covered public or qualifying private roadway or place.
• You met the charged alcohol-concentration or under-the-influence theory.
• When the prosecution relies on the alcohol-concentration alternative, the applicable chemical-test timing element also applies.

SB 137 doesn’t change what the State must prove for this charge. Its effect comes later, through DOC program eligibility and the amount of confinement a person may actually experience.

Polston’s Constitutional Challenge

Polston’s complaint raises three federal constitutional claims: ex post facto, due process, and bill of attainder. The claims don’t all have the same strength. The ex post facto issue is the most direct because SB 137 would allegedly move her from community custody back into a prison after the State already placed her outside the institution.

Ex Post Facto: The Strongest Defense Argument

The Ex Post Facto Clause bars a state from retroactively increasing punishment for conduct completed before a new law. In Lynce v. Mathis, the U.S. Supreme Court addressed a close analogy. Florida retroactively canceled release credits after an inmate had used them to gain freedom, then returned him to prison. The Court held that the resulting reincarceration violated the Ex Post Facto Clause.

Weaver v. Graham also helps Polston. There, the Court held that a later law can’t make a previously committed crime more onerous by reducing sentence credits. Those cases focus on the practical effect of a later law, not merely the label placed on an administrative program.

The factual posture strengthens Polston’s argument. She didn’t merely hope for future electronic monitoring. DOC found her eligible and placed her in the program before SB 137 became law. If the new statute automatically produces reincarceration, the increased confinement isn’t speculative. That feature makes the case look more like Lynce than a minor change in parole procedure.

Due Process

Polston’s due process argument is that automatic removal would take away a protected liberty interest without notice or a hearing. Young v. Harper gives that argument unusual force because it involved an Oklahoma community-release program. The Supreme Court held that the program was equivalent to parole for due-process purposes. The participant lived at home, worked, and lived generally free from the incidents of imprisonment.

The parallels aren’t exact, but they’re significant. Polston alleges that she lives at home, works, attends church, and remains under GPS supervision. She also points to the prior statutory command that an eligible participant “shall remain” in the program until one of three listed events occurs. Because no alleged misconduct triggered removal, she argues that a new statute can’t erase that liberty automatically.

The State still has a response. A hearing normally protects against factual error. Here, the proposed reason for removal may be a legal change rather than disputed misconduct. The State can argue that a hearing can’t change the new eligibility rule. That point narrows the process question, although it doesn’t answer whether the new rule may constitutionally reach Polston in the first place.

Bill of Attainder

The Bill of Attainder Clause prevents a legislature from imposing punishment on a specified person or identifiable group without a judicial trial. Polston emphasizes the legislative history. Her complaint alleges that the bill sponsor discussed the incident that led to her placement and criticized the result. The new exclusion then singled out the offense for which she was serving her sentence.

That history supports Polston’s motive argument, but motive alone doesn’t decide a bill-of-attainder claim. Under Nixon v. Administrator of General Services, courts also ask whether the law is sufficiently specific and whether it imposes punishment rather than serving a legitimate regulatory goal.

The State has more room here. SB 137 doesn’t name Polston. It defines an offense-based class that can include future inmates, and the State can frame the rule as a public-safety eligibility standard. Even strong evidence that Polston prompted the law may not prove unconstitutional legislative punishment. For that reason, this claim appears harder than the ex post facto claim.

The State’s Strongest Arguments

• Electronic monitoring remains DOC custody. The State can argue that SB 137 changes the place or degree of confinement rather than the judicial sentence itself. That framing tries to separate the case from laws that directly increase a sentencing range.
• Not every retroactive correctional rule violates the Ex Post Facto Clause. In California Department of Corrections v. Morales, the Supreme Court upheld a procedural parole change that created only a speculative risk of more punishment. Oklahoma can argue SB 137 regulates program administration rather than punishment.
• Eligibility can be measured under the law in force when DOC acts. The State can characterize November 1 as the point when Polston simply stops meeting a current eligibility rule. That argument is cleaner if the program creates no fixed entitlement to remain.
• The statute uses a neutral offense category rather than Polston’s name. The class isn’t limited to her. It also reaches future inmates with the same conviction, which gives the State a strong answer to the specificity and punitive-purpose parts of the attainder claim.
• Dominique v. Weld also helps the State on the Ex Post Facto issue. There, the First Circuit held that removing an inmate from work release under a later-enacted eligibility rule didn’t increase his punishment because it changed the conditions of confinement rather than the length of his sentence. Oklahoma can make the same argument here: Polston remains in DOC custody and is serving the same sentence, so SB 137 merely changes where and how that sentence is served.

The State’s weakest point is the practical consequence of retroactive enforcement against someone already living in the community. If SB 137 necessarily returns Polston to a prison cell, the change is much less “speculative” than the parole procedure upheld in Morales. That difference could be decisive.

What the Federal Court Could Decide

The court doesn’t have to choose between striking down SB 137 everywhere and upholding every application of it. An as-applied ruling could protect Polston while leaving the law in force for people whose relevant conduct occurs after the constitutional cutoff. That path would address retroactivity without disabling the Legislature’s prospective policy choice.

The court could also decide one constitutional claim without reaching the others. For example, a ruling under the Ex Post Facto Clause could make it unnecessary to resolve the bill-of-attainder theory. Likewise, a due-process ruling could focus on the procedures required before removal rather than the statute’s validity in every setting.

No outcome is guaranteed. Still, Polston’s existing placement matters a great deal. She had already moved from institutional confinement to community supervision before SB 137. Because of that, her challenge presents a more concrete loss of liberty than a lawsuit based only on a future chance of release.

Could Sara Polston Be Sent Back to Prison Without SB 137?

Yes—but Oklahoma law already provides ways to return an electronic-monitoring participant to a correctional facility that are very different from what SB 137 attempts to do. The most straightforward existing mechanisms generally involve misconduct, escape, or another new circumstance arising while the person is on electronic monitoring. They don’t simply depend on lawmakers later deciding that a person with a particular conviction shouldn’t have been placed in the program.

Violating Electronic-Monitoring Rules

Under Oklahoma’s Electronic Monitoring Program statute, an eligible inmate assigned to electronic monitoring remains in the program until sentence discharge, parole, or removal for violating a rule or condition of the program. The same law authorizes DOC to respond to violations with disciplinary action that can include removing the participant from electronic monitoring and reassigning the participant to imprisonment in a correctional facility.

The Department of Corrections’ Rules and Conditions for the GPS Surveillance Program require participants, among other things, to:

• obey city, state, and federal laws;
• report as directed by the supervising officer;
• follow lawful directives from Department of Corrections personnel;
• not use or possess unauthorized drugs;
• comply with restrictions involving alcohol;
• submit to required testing;
• follow curfew requirements;
• obtain permission for restricted travel;
• not leave Oklahoma without authorization;
• participate in required programming or case-plan requirements; and
• comply with requirements governing the electronic-monitoring equipment.

Not every technical or minor violation necessarily sends someone back to prison. DOC’s Specialized Programs Case Management policy allows some noncompliance to be addressed through measures such as increased reporting, treatment requirements, stricter curfews, or other interventions. More serious violations can lead to removal proceedings and reassignment to a correctional facility.

Tampering With or Violating GPS Requirements

The ankle monitor itself can become the basis for enforcement action. DOC’s GPS Alerts and Violations procedures address monitor-strap problems, low batteries, suspected tampering, GPS shielding or jamming, prohibited-zone activity, and failures of the device to communicate properly with the monitoring system.

An electronic alert doesn’t automatically prove misconduct. DOC’s GPS alert procedures recognize that some events, such as an inability to connect, can result from technical or cellular-service problems. Deliberately tampering with the device, intentionally defeating its operation, refusing to comply with charging requirements, or knowingly violating location restrictions presents a much different situation and can support disciplinary action.

Escape or Absconding

Absconding is one of the clearest ways an electronic-monitoring participant could be returned to custody without SB 137. DOC’s GPS rules and conditions require participants to maintain contact and report as directed, while the Department’s Specialized Programs Case Management policy establishes procedures for treating a participant as an escape when the person fails to report or can’t be located.

Oklahoma’s Electronic Monitoring Program statute also expressly provides that an inmate who escapes from the program is subject to Oklahoma’s escape law. The State therefore doesn’t need SB 137 to return an electronic-monitoring participant to custody when that person absconds.

New Criminal Conduct

A new crime could create two separate problems. The new offense could independently result in arrest and prosecution, and it could also violate the requirement in DOC’s GPS supervision rules that participants obey applicable city, state, and federal laws.

Oklahoma therefore didn’t need SB 137 to deal with an electronic-monitoring participant who committed a new crime. Existing supervision rules already provide mechanisms for responding to new criminal conduct and other serious violations that occur while a person is being supervised in the community.

DOC Has a Procedure for Alleged Program Violations

When DOC alleges a violation serious enough to justify removing someone from a community-supervision program, its Program Removal Hearing Procedures provide a process for deciding whether a violation occurred and whether removal is warranted.

Those removal-hearing procedures contemplate a violation report, written notice of the allegation, time to prepare for the hearing, and an opportunity to present relevant evidence. The participant may also present relevant witnesses, question witnesses, and offer mitigating information bearing on whether removal from the program is appropriate.

That existing process is important to the Polston controversy because it demonstrates that Oklahoma already had a mechanism for returning an electronic-monitoring participant to prison based on the participant’s own conduct. SB 137 addresses something materially different: removing someone who may have complied with the program because the Legislature later changed the statutory definition of who qualifies.

What About “Administrative Removal” or a Later Finding of Ineligibility?

A more difficult issue involves administrative removal. DOC’s Specialized Programs Case Management policy recognizes “administrative removal” as one way a participant can leave a community-supervision program. The Department’s Electronic Monitoring Program and GPS policy also provides for continuing review of an inmate’s eligibility during later classification or adjustment reviews.

Under DOC’s electronic-monitoring eligibility policy, potentially disqualifying circumstances can include a felony warrant or detainer, active misconduct, lack of a valid home offer, a need for services unavailable in a community setting, or a determination that an inmate presents a security risk or threat to the public.

But the existence of an administrative-removal policy doesn’t necessarily establish that DOC can reincarcerate an otherwise compliant participant solely because officials later change their view of eligibility. Oklahoma’s Electronic Monitoring Program statute says that an eligible inmate who has already been assigned to the program “shall remain” there until one of the statutory conditions occurs.

That statutory structure makes SB 137’s new language particularly important. The enrolled version of SB 137 adds the categorical command that “Loss of eligibility for the program shall result in removal of the inmate from the program.”

The Legislature’s decision to add that sentence gives Polston a significant statutory-construction argument. If DOC already possessed unquestionable authority to remove any compliant participant whenever officials later concluded that the participant was no longer eligible, the newly enacted loss-of-eligibility provision would appear to do considerably less work. Polston can argue that the new sentence instead creates an additional ground for mandatory removal.

Could DOC Simply Decide Polston Is a Threat to the Public?

DOC’s Electronic Monitoring Program and GPS policy excludes an inmate whom the Department determines is a security risk or threat to the public. That potentially gives DOC authority to act when genuinely new information changes the inmate’s risk profile.

Applying that provision to Polston based solely on facts that DOC already knew when it approved her placement would present a harder issue. In her federal lawsuit against the Director of the Oklahoma Department of Corrections, Polston alleges that DOC determined she was eligible, formally assigned her to the Electronic Monitoring Program on February 19, 2026, and that she has complied with the program’s requirements.

If DOC acquired genuinely new facts indicating that a participant had become a security risk, the State would have a materially stronger existing-law argument. Simply reconsidering the seriousness of the original offense after DOC had already evaluated that offense and approved placement would present much more substantial statutory and due-process questions.

What If Polston Is Denied Parole?

Parole denial by itself doesn’t authorize removal from electronic monitoring. Oklahoma’s Electronic Monitoring Program statute expressly provides that denial of parole isn’t cause for removal when the inmate hasn’t violated the program’s rules or conditions and remains otherwise eligible.

That distinction also illustrates why electronic monitoring isn’t the same as parole. A person participating in the Electronic Monitoring Program remains in DOC custody even while living under active supervision in a community setting.

Why the Existing Removal Rules Matter to Polston’s Constitutional Challenge

The distinction between misconduct-based removal and SB 137’s new eligibility rule may strengthen Polston’s constitutional argument. Oklahoma already had mechanisms for dealing with an electronic-monitoring participant who broke the rules, committed a new crime, tampered with the ankle monitor, absconded, or otherwise engaged in misconduct warranting removal. DOC’s Program Removal Hearing Procedures specifically provide a process for adjudicating alleged violations before removal.

SB 137 instead focuses on the conviction itself—a conviction that already existed when DOC placed Polston in the program. SB 137 makes inmates convicted under the serious-injury DUI provision ineligible and simultaneously adds the rule requiring removal when eligibility is lost.

Under the State’s apparent interpretation of the new law, Polston could comply with every condition of electronic monitoring and nevertheless become subject to removal because the Legislature subsequently changed the eligibility rules governing her preexisting conviction.

That is what separates the SB 137 constitutional dispute from an ordinary program-violation case. The central question isn’t whether Oklahoma can return a rule violator, an absconder, or someone who commits a new crime to prison. Existing Oklahoma law and DOC procedures already provide mechanisms for doing those things. The harder constitutional question is whether Oklahoma can apply a later-enacted eligibility restriction to a person already placed in community custody and thereby impose substantially more restrictive confinement based on the same preexisting conviction.

How Will the Federal Court Likely Decide the Sara Polston Case?

Polston’s strongest argument is the Ex Post Facto Clause. Her offense, conviction, sentence, and placement on electronic monitoring all occurred before SB 137’s November 1, 2026 effective date. The new law not only makes people convicted under the applicable DUI-with-great-bodily-injury provision ineligible, but also commands that “Loss of eligibility for the program shall result in removal of the inmate from the program.” That language appears in the enrolled version of Oklahoma SB 137.

The U.S. Supreme Court’s decision in Lynce v. Mathis presents a substantial problem for the State. There, the Supreme Court held that Florida couldn’t retroactively cancel previously awarded release credits and reincarcerate a prisoner based on a later change in the law. Likewise, Weaver v. Graham explains that a law violates the Ex Post Facto Clause when it retrospectively makes punishment for an earlier crime more onerous.

Oklahoma will likely argue that Polston remains in DOC custody and that SB 137 merely changes the location or conditions of her confinement rather than increasing her sentence. But Young v. Harper, which involved an Oklahoma community-release program, recognized that living in the community under DOC supervision can involve a constitutionally significant liberty interest even though the participant technically remains in state custody.

The most likely outcome would be a narrow ruling. Oklahoma may prospectively exclude DUI-with-great-bodily-injury offenders from electronic monitoring, but the State likely can’t use SB 137 to remove Polston from an existing community placement and return her to institutional imprisonment solely because lawmakers later changed the eligibility rules. The court could reach that result through an as-applied Ex Post Facto ruling without declaring SB 137 unconstitutional in all circumstances.

Something else to remember is that we haven’t read the State’s response. This analysis is based on the facts of the situation, Polston’s Complaint, and what I believe the State’s arguments will be. This analysis could change depending on what the state puts in its Response.