Tag: new oklahoma law

DUI Law Changes – IDAP- New Oklahoma Laws 2019

impaired driver accountability program oklahoma idapBig changes happened to Oklahoma’s DUI laws in 2019! These changes involve what happens with the license of someone arrested for DUI.

The implied consent hearings with the Oklahoma Department of Public Safety (DPS) go away. Any challenge to a DUI arrest must be made in a District Court. A new program is created–the Impaired Driver Accountability Program (IDAP)–which incentivizes people to install an ignition interlock. Mandatory interlock time is reduced. There’s no longer a harsher punishment for drivers who refuse or test high (BAC of 0.15 or more). All these changes come from SB 712. This is probably the biggest change to Oklahoma DUI law in decades.

Any modifications addressed in these laws applies to Class D vehicles only–not commercial vehicles. The terms “revocation” and “suspension” are synonymous and also include the denial of driving privileges by DPS. The laws defining what constitutes a DUI in Oklahoma didn’t change.

I recently appeared on Fox 25 in OKC to discuss these changes.

What happens to my license after I get arrested for DUI in Oklahoma under the new law?

Someone arrested for DUI will have three choices:

  • Apply to the Impaired Driver Accountability Program (IDAP)
  • Challenge the stop and administration of the chemical test in a District Court
  • Do nothing

What happens to your license will depend on which of the above choices you make.

What is Oklahoma’s Impaired Driver Accountability Program (IDAP)?

Voted #2 DUI Attorney in OKC
Voted #2 DUI Attorney in OKC

IDAP is essentially a diversion program within the Department of Public Safety designed to encourage people to install an interlock in their vehicle. You need to apply for IDAP. Once DPS approves your participation in IDAP, you need to enroll in the program. Note the following:

  • Your license doesn’t get revoked as a consequence of participating in IDAP.
  • There’s no reinstatement fee after successful completion of IDAP. You just go to a tag agency and get a new regular license.
  • The installation of an interlock will run concurrently with any court order for installation of an interlock for the same offense.
  • The DUI won’t appear on DPS’s public record, but it will be recorded for the purpose of enhancement in the event of a re-offense

Applying for IDAP

  • Only Class D license holders may participate in IDAP. So, if you hold a CDL, then you’re ineligible for IDAP; you must file an appeal in District Court.
  • The arresting officer (or DPS in the case of a blood test) must give the arrestee a notice advising them of the availability of the IDAP.
  • DPS must receive your request for IDAP participation within 30 days from the date of the Notice of Revocation. DPS may approve exceptions to this 30-day requirement in limited circumstances.
  • You can’t be otherwise ineligible for driving privileges on the date you enter the IDAP agreement.
  • If you mail your IDAP request, then the post mark date will be considered the date DPS received your request.
  • You may request participation in IDAP at DPS with a Hearing Officer.
  • Once you’ve requested participation in IDAP, DPS will issue a temporary stay on your driver’s license revocation that will expire at midnight on the 16th day after the IDAP request would have been due.
  • Submitting a request for a DPS hearing (which doesn’t exist under this new law) will be treated by DPS as a request for IDAP until notified otherwise. A failure to respond to correspondence from DPS regarding IDAP (generated by the hearing request) will be interpreted by DPS as a rejection of the opportunity to participate in IDAP.

Enrolling in IDAP

  • You must pay $200 to DPS and provide DPS proof of interlock installation within 45 days of the date notice was given. DPS may approve exceptions to the 45-day requirement on a limited basis.
  • You have to pay $50 to get a restricted driver’s license for the period you’re in IDAP. The restricted license will state that you’re only authorized to operate a vehicle that has an approved and properly functioning ignition interlock device installed. There’s still an exception for employer vehicles.
  • You must complete an IDAP Agreement form.
  • You must acknowledge receipt and review of the IDAP Participant’s Guide.
  • A DPS Hearing Officer must sign the IDAP Agreement
  • The day enrollment in IDAP is complete (all of the above accomplished) is the participant’s first day in the program.
  • All program restrictions continue through the last day of IDAP. You’re responsible for completing IDAP before removing the interlock.
  • If you’re enrolling in IDAP for a subsequent DUI/APC arrest, then you will complete any subsequent IDAP period consecutively.

How do I figure out the Date of Notice of Revocation?

  • Breath test or refusal – the date of arrest
  • Blood test – the 10th day after the date DPS mails you or your attorney the Notice of Revocation

How long do I have to keep an interlock in my car under IDAP?

The minimum time an interlock must be installed in your vehicle:

  • First offense – six months
  • Second offense – 12 months
  • Third offense – 36 months

Note that there is no more “extra interlock time” pursuant to the Erin Swezey Act. That all goes away. Once you complete IDAP, you can drive with a normal license and without an interlock–regardless of whether you refused or how many times you’ve been arrested for DUI.

What if I commit an interlock violation while in IDAP?

There’s a period of time in which an IDAP participant is subject to program extension due to interlock violations or program violations.

  • Six month period – You cannot commit a reportable violation in the 60 days prior to being released from IDAP. If you commit a violation during the last 60 days of the original program length and any extensions, then the program will be extended 60 days.
  • One-year period – You cannot commit a reportable violation in the 120 days prior to being released from IDAP. If you commit a violation during the last 120 days of the original program length and any extensions, then the program will be extended 120 days.
  • Three-year period – You cannot commit a reportable violation in the year prior to being released from IDAP. If you commit a violation during the last year of the original program length and any extensions, then the program will be extended 365 days.

Interlock violations include:

  • Three penalty fails at startup within a 15-minute timeframe
  • Three retest violations constitutes a reportable violation. Each retest violation after those first three constitutes a reportable violation.

Program violations include:

  • A circumvention
  • Removal of the device except:
    • Upon receipt of documentation from the installation authority or monitor authorizing that removal
    • The vehicle is being repaired. In this situation, the program participant must inform the licensed service center at least every eight days as to the anticipated date of completion of repairs; or
    • The vehicle is being replaced. If your vehicle is being replaced with another vehicle, then the removal and reinstallation of the device in the new vehicle has to be accomplished within eight days of the removal of the device from the old vehicle;
  • Tampering
  • Missed service appointment

If you have a verified program violation, you must appear before DPS to provide proof that the program violation has been remedied.

What can DPS do to me if they receive a report of a verified program or interlock violation?

If you commit a violation, DPS may impose any of the following:

  • Retraining with manufacturer, at the expense of the participant;
  • Installation of an interlock with a camera
  • Restrictions on the days and times of the participant’s driving;
  • Referral to re-assessment; and
  • Removal from IDAP, which will result in a driver license revocation.

You may appear before a DPS Hearing Officer within 15 days of receipt of the notice of violation to contest that violation. The Hearing Officer may sustain or set aside the violation. If you don’t contest the violation within those 15 days, then you have waived any future right to contest that violation.

How do I graduate from IDAP?

To graduate from IDAP, you must give the following to DPS:

  • The completion form from the Board of Tests verifying no interlock violations in the last 60/120/365 days of the program and
  • Certificate of completion of the requirements of the drug and alcohol assessment (ADSAC – “red stamp”).

You cannot have been arrested for DUI while in IDAP because DPS will verify that they have not received any additional officer’s affidavits and notices of revocation. Finally, DPS will update your Driver Index to reflect the completion of IDAP and issue you a completion certificate.

What if I challenge the DUI stop or administration of the breath/blood test?

If you believe the DUI stop and/or arrest were improper, you can still challenge the DUI arrest. Instead of it being on the phone with a DPS hearing officer, an appeal must be filed in the district court of the county where the offense occurred. Note the following:

  • The appeal petition has to be filed within 30 days after the notice of revocation has been served on the arrestee.
  • The appeal must be set for a hearing 15-30 days from the date the petition is filed.
  • The court clerk has to send a certified copy of the petition and order for hearing to DPS.
  • There’s no longer a $250 cash bond! Previously, an appeal to a district court of a DPS hearing required an extra $250 cash bond to be paid. This goes away.
  • The law is silent on what happens to the license 30 days after notice is given when a driver files an appeal in district court. DPS has said that they will not object to the imposition of a stay of the revocation while the case is pending. Translation: your license won’t get revoked at the 30-day mark if you file an appeal in district court.
  • If you lose the hearing, then your license gets revoked. If your license is revoked, then you have to get it reinstated after the revocation period. This involves paying a fee (approximately $365) and submitting proof of the Alcohol and Drug Substance Abuse Course (ADSAC) completion. You may still appeal the loss in district court to the Court of Civil Appeals.
  • If you lose in district court, you may ask the court to order DPS to issue a modified license so that you may legally drive during the revocation period. The court must issue that order if you ask for it. It’s no longer the court’s option. The modified license will require the installation of an approved and working interlock during the revocation/suspension period.

What will the district court look at to determine whether my license should be suspended?

The hearing will cover whether the officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle on the public roads, highways, streets, turnpikes or other public place in Oklahoma while under the influence of alcohol, any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance. It will also cover whether the person was placed under arrest.

If the revocation or denial is based upon a breath or blood test, the hearing will also cover whether:

  1. if timely requested by the person, the person was not denied a breath or blood test,
  2. the blood or breath specimen was obtained from the person within two hours of his or her arrest,
  3. a person under 21 was advised that driving privileges would be revoked or denied if the test result reflected the presence of any measurable quantity of alcohol (0.02 BAC),
  4. a person 21 or older was advised that driving privileges would be revoked or denied if the test result reflected an alcohol concentration of .08 or more, and
  5. the test result in fact reflects the alcohol concentration.

If the revocation or denial is based upon the refusal of the person to submit to a breath or blood test, the will also include whether:

  1. the person refused to submit to the test or tests, and
  2. the person was informed that driving privileges would be revoked or denied if the person refused to submit to any test.

How long is my license suspended if I lose the hearing in district court?

If you lose the hearing in district court, your license will be suspended accordingly:

  • First offense – six months
  • Second offense – 12 months
  • Third and subsequent offense – 36 months

Note that there is no more “extra interlock time” pursuant to the Erin Swezey Act. That all goes away. Once your license is reinstated, you can drive with a normal license and without an interlock–regardless of whether you refused or how many times you’ve been arrested for DUI.

What if I commit a violation during the revocation period?

If your license is revoked and you commit an interlock violation while on a modified license, then your interlock period will be extended. You can’t commit any reportable violations within 180 days prior to the date of release from the modification. The 180-day violation-free requirement applies regardless of the length of revocation. So note that a first-time offender could complete almost the entire 180 days and end up with an entirely new 180 days due to a violation in the final days of their original revocation period.

What if I don’t do anything within 30 days of the Notice of Revocation?

If you don’t apply to IDAP or challenge the arrest in district court within 30 days of the arrest/notice, then your license will be revoked 30 days after the Notice of Revocation date for a breath test/refusal and 40 days after the date DPS mails the Notice of Revocation. If you’re otherwise eligible for a modified license, DPS must issue you a modified license upon request for the six and 36-month periods. DPS may modify a license for the 12-month period. An interlock must be installed during the modification period. The periods of revocation and the amount of time an interlock must be installed are the same as if you lost the district court hearing:

  • First offense – six months
  • Second offense – 12 months
  • Third and subsequent offense – 36 months

The periods of revocation and periods of interlock installation will run concurrently. However, each must be for no less than the respective amount of time. This means that if you get a modified license two months into your six-month revocation, you still have to keep the interlock installed in your vehicle for a full six months. you can’t “wait out” part of any revocation period in order to get less interlock time. Therefore, you should get the interlock installed as close to the date your license is revoked.

Can I both apply for IDAP and file an appeal in a district court?

No! Current DPS administrative rules prohibit you from enrolling in IDAP if you have filed a challenge in District Court. Note that this is not in the statute. This is something that will likely be challenged. It typically takes longer than 30 days to receive the incident report and video. Prohibiting drivers from participating in IDAP while challenging the arrest in District Court puts the driver at a significant disadvantage. Most drivers will be in the blind as to how good of a case they have when the 30-day decision deadline arrives.

What if I was arrested before November 1, 2019, but my revocation date is after October, 2019?

The date of revocation will be used to determine which law to apply to you. If your revocation happened prior to November 1, 2019, then the Erin Swezey Act additional interlock time will be required. If your date of revocation occurs after October, 2019, then the new law will apply, and you will not have additional interlock time beyond the revocation or IDAP time. This is true whether you request an administrative hearing, stay the revocation, take no action, or appeals DPS’s action.

Excessive User Program

This new law eliminates the Excessive User Program. DPS will base its determination about a driver’s designation as an Excessive User on the revocation date that gives rise to the possible designation as an Excessive User. Drivers who have an existing designation as an Excessive User on their record, as of November 1, 2019, will continue to have the requirement until such time as they have completed the requirements. Drivers who have a revocation pending that could otherwise lead to a designation as an Excessive User will not be required to complete the Excessive User requirements unless the subject revocation is final prior to November 1, 2019.

Sources: SB 712; Oklahoma Administrative Code Title 595 Chapter 40 §§ 7-1, 7-2, 7-3, 7-4, 7-5, & 7-6; and 47 O.S. §§ 2-116, 6-204, 6-205, 6-205.1, 6-211, 6-212, 6-212.2, 6-212.5, 6-212.6, 11-902a, 751, 752, 753, 754, 754.1, & 754.2

Current as of November 9, 2019. Note that laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.

Charged with DUI in Oklahoma? Call OKC DUI attorney Frank Urbanic at 405-633-3420.

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Hemp Is Legal – 2018 Oklahoma Laws #4

Growing hemp is now legal in Oklahoma when grown pursuant to the Oklahoma Industrial Hemp Agricultural Pilot Program. This law sets up various rules for the growing of hemp in Oklahoma. Previously, industrial hemp could only be shipped to Oklahoma for certain purposes. The official definition of marijuana has changed to exclude hemp grown under the Program.

 

New Definition of Marijuana in Oklahoma

Marijuana means:Oklahoma industrial hemp

  1. all parts of the plant Cannabis sativa L., whether growing or not;
  2. the seeds of that plant;
  3. the resin extracted from any part of that plant;
  4. and every compound, manufacture, salt, derivative, mixture, or preparation of that plant, its seeds, or resin.

Marijuana does NOT include:

  1. The mature stalks of the Cannabis sativa L. plant or fiber produced from such stalks;
  2. Oil or cake made from the seeds of that plant, including cannabidiol derived from the seeds of the marijuana plant;
  3. Any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks, fiber, oil or cake;
  4. The sterilized seed of such plant that is incapable of germination
  5. For any person participating in a clinical trial to administer cannabidiol for the treatment of severe forms of epilepsy pursuant to Oklahoma law, a drug or substance approved by the federal Food and Drug Administration for use by those participants,
  6. For any person or the parents, legal guardians or caretakers of the person who have received a written certification from a physician licensed in this state that the person has been diagnosed by a physician as having Lennox-Gastaut Syndrome, Dravet Syndrome, also known as Severe Myoclonic Epilepsy of Infancy, or any other severe form of epilepsy that is not adequately treated by traditional medical therapies, spasticity due to multiple sclerosis or due to paraplegia, intractable nausea and vomiting, appetite stimulation with chronic wasting diseases, the substance cannabidiol, a nonpsychoactive cannabinoid, found in the plant Cannabis sativa L. or any other preparation thereof, that has a tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) and that is delivered to the patient in the form of a liquid
  7. Any federal Food and Drug Administration-approved cannabidiol drug or substance, or
  8. Industrial hemp, from the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis which shall not be grown anywhere in the State of Oklahoma but may be shipped to Oklahoma pursuant to the provisions of 5 & 6 above.

Read More: https://www.urbanic.law/can-i-have-a-gun-if-i-have-a-medical-marijuana-license-in-oklahoma/

Reasons Hemp May be Shipped to Oklahoma

  1. For any person participating in a clinical trial to administer cannabidiol for the treatment of severe forms of epilepsy pursuant to Oklahoma law, a drug or substance approved by the federal Food and Drug Administration for use by those participants and
  2. For any person or the parents, legal guardians, or caretakers of the person who have received a written certification from a physician licensed in Oklahoma that the person has been diagnosed by a physician as having Lennox-Gastaut Syndrome, Dravet Syndrome, also known as Severe Myoclonic Epilepsy of Infancy, or any other severe form of epilepsy that is not adequately treated by traditional medical therapies, spasticity due to multiple sclerosis or due to paraplegia, intractable nausea and vomiting, appetite stimulation with chronic wasting diseases, the substance cannabidiol, a nonpsychoactive cannabinoid, found in the plant Cannabis sativa L. or any other preparation thereof, that has a tetrahydrocannabinol concentration of not more than 0.3% and that is delivered to the patient in the form of a liquid.

Industrial Hemp in Oklahoma

Industrial hemp means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry-weight basis. You have to be a licensee in Oklahoma to grow industrial hemp. A licensee is a university or an institution of higher education located in Oklahoma that holds a valid Industrial Hemp License to grow industrial hemp under the Oklahoma Industrial Hemp Agricultural Pilot Program. The licensee may adopt policies and procedures to subcontract with persons or other legal entities to carry out the purposes of the program. An Industrial Hemp License is authorization by the Department for any university or an institution of higher education in Oklahoma to grow and cultivate industrial hemp on a registered land area for research and development purposes as part of the Oklahoma Industrial Hemp Agricultural Pilot Program.

A licensee can:

  1. Engage in the growth and cultivation of industrial hemp from certified seeds for agricultural plant research and development purposes; and
  2. Engage in the growth and cultivation of industrial hemp from certified seeds for marketing development purposes.

The activities performed under the Oklahoma Industrial Hemp Agricultural Pilot Program will not subject people participating in the program to criminal liability under the Uniform Controlled Dangerous Substances Act. The exemption from criminal liability a limited exemption that willbe strictly construed and will not apply to an activity that is not expressly permitted under the Oklahoma Industrial Hemp Agricultural Pilot Program.

The Oklahoma Department of Agriculture, Food, and Forestry may deny, revoke, or suspend a license if the licensee:

  1. Violates any provision of the Oklahoma Industrial Hemp Agricultural Pilot Program or rules adopted pursuant to the program;
  2. Engages in fraud or deception in the procurement of or attempt to procure a license under this Oklahoma Industrial Hemp Agricultural Pilot Program or provides false information on a license application;
  3. Refuses or fails to cooperate and assist the Department with the inspection process;
  4. Refuses or fails to provide any information required or requested by the Department for purposes of the Oklahoma Industrial Hemp Agricultural Pilot Program;
  5. Knowingly provides false, misleading or incorrect information pertaining to the licensee’s cultivation of industrial hemp to the Department by any means, including information provided in any application form, report, record, or inspection required or maintained for purposes of the Oklahoma Industrial Hemp Agricultural Pilot Program;
  6. Fails to submit any report required by the Oklahoma Industrial Hemp Agricultural Pilot Program; or
  7. Fails to pay fees required by the Oklahoma Industrial Hemp Agricultural Pilot Program.

If a sample of a licensee’s industrial hemp tests higher than 0.3% but less than 1% THC concentration, the licensee shall not be subject to any penalty under the Oklahoma Industrial Hemp Agricultural Pilot Program if the crop is destroyed or utilized on site in a manner approved of and verified by the Department.

These laws were enacted through HB 2913 and SB 1446. HB 2913 went into effect on April 23, 2018. SB 1446 went into effect on November 1, 2018.

Sources: HB 2913SB 1446, 63 O.S. § 2-101, 2 O.S. § 3-4032 O.S. § 3-402, & 2 O.S. § 3-408

Busted for marijuana?

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Oklahoma marijuana attorney Frank Urbanic – 405-633-3420

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Medical Marijuana – 2018 Oklahoma Laws #3

smoking medical marijuana in oklahoma

On June 26, 2018, over 56% of Oklahoma voters for the least-restrictive medical marijuana law in the country. The law went into effect on July 26, 2018, and as early as November 2018, marijuana bud was for sale at dispensaries. It’s considered the least restrictive because there are no qualifying medical conditions. The conditions marijuana can be prescribed for are completely left up to the prescribing doctor. The law made significant changes to the punishment for marijuana possession.

Now, a person in possession of a state issued medical marijuana license may legally:

  1. Consume marijuana;
  2. Possess up to three ounces of marijuana on their person;
  3. Possess six mature marijuana plants;
  4. Possess six seedling plants;
  5. Possess one ounce of concentrated marijuana;
  6. Possess 72 ounces of edible marijuana; and
  7. Possess up to eight ounces of marijuana in their residence.

Furthermore, possession of up to 1.5 ounces of marijuana by anyone who can state a medical condition, but not in possession of a state issued medical marijuana license, constitutes a misdemeanor with a maximum fine of $400. Succinctly, if you don’t have a marijuana card and are caught by law enforcement with up to 1.5 ounces of weed and you can state a medical condition, then the worst punishment you can receive is a $400 fine–no jail time. Note the language “can state a medical condition.” It doesn’t say you must actually have that medical condition. So, theoretically, you can just say some random medical condition and you should be ok. I will be interesting to see how this plays out. Also, it does not say whom you must say the medical condition to. The police officer? The court? If you don’t immediately state one, then can you later go in front of a judge and say one? This is uncharted territory, so we simply don’t know how this language will ultimately be interpreted.

It will be interesting to see how this new “marijuana possession law for non-card holders” shakes out in relation to the statute that was changed by SQ 780 on July 1, 2017. That law says that (simple) possession of any controlled dangerous substance in Oklahoma can result in up to one year in jail and up to a $1,000 fine. It’s the expectation that someone who does not have a marijuana card and is not in possession of more than 1.5 ounces of weed will be charged under this new law. Some municipalities have already changed their marijuana possession punishment to become aligned with this new change in state law. It’s likely that more changes, such as changing the penalties for paraphernalia, will also soon follow.

This was a watershed moment for the country. We proved that the people want easily available medical marijuana–in one of the most conservative states in the country. If this law could be passed by Oklahoma voters, it could be passed anywhere. Just as the sky did not fall as the opponents of 780 (making simple possession of all drugs a misdemeanor) had predicted, the sky will not fall as opponents of this ballot measure predicted. I believe that after a few years of marijuana no longer being such a “big deal’ here, Oklahomans will easily legalize recreational marijuana.

Sources: SQ 788, 63 O.S. § 420A63 O.S. § 2-402Village formally reduces marijuana possession penalties in updated city codeOKC City Council Passes City Ordinance Concerning Marijuana, & Oklahoma Town Decriminalizes Marijuana With Ordinance Changes

Have you been arrested for marijuana in Oklahoma?

Contact Oklahoma marijuana attorney Frank Urbanic.

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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.

Need an Oklahoma criminal defense lawyer?

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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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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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Misdemeanors Removed From DNA Fee – 2017 Oklahoma Laws #30

oklahoma dnaSomeone arrested in Oklahoma for unlawfully carrying a firearm, illegally transporting a firearm, or discharging a firearm no longer has to pay the $150 DNA fee, does not have to provide a DNA sample, and will not have their DNA information entered into CODIS. This fee won’t be collected if the person has a valid DNA sample in the OSBI DNA Offender Database at the time of sentencing. Additionally, individuals convicted of those crimes no longer have to provide a blood or saliva sample upon release from custody, nor do they have to provide a blood or saliva sample as a condition of their sentence.

Who must pay the DNA fee in Oklahoma?

In Oklahoma, a person convicted of a felony must pay the DNA fee. Anyone convicted of any of the following misdemeanor offenses must pay the DNA fee:

  • Assault and battery;
  • Domestic abuse;
  • Stalking;
  • Possession of a Schedule IV controlled substance;
  • Outraging public decency;
  • Resisting arrest;
  • Escaping or attempting to escape;
  • Eluding a police officer;
  • Peeping Tom;
  • Pointing a firearm;
  • Threatening an act of violence;
  • Breaking and entering a dwelling place;
  • Destruction of property;
  • Negligent homicide; or
  • Causing a personal injury accident while driving under the influence of any intoxicating substance.

Which misdemeanor convictions require submitting DNA to law enforcement in Oklahoma?

Individuals convicted of any of the following misdemeanors must submit to DNA testing for law enforcement purposes:

  • Assault and battery;
  • Domestic abuse;
  • Stalking;
  • Possession of a Schedule IV controlled substance;
  • Outraging public decency;
  • Resisting arrest;
  • Escaping or attempting to escape;
  • Eluding a police officer;
  • Peeping Tom;
  • Pointing a firearm;
  • Threatening an act of violence;
  • Breaking and entering a dwelling place;
  • Destruction of property;
  • Negligent homicide; or
  • Causing a personal injury accident while driving under the influence of any intoxicating substance.

Furthermore, or any alien unlawfully present under federal immigration law, upon arrest, mustsubmit to DNA testing for law enforcement identification purposes

Who does Oklahoma put in the CODIS DNA database?

The Combined DNA Index System (CODIS) Database exists for the purpose of collecting and storing blood or saliva samples and DNA profiles, analyzing and typing of the genetic markers contained in or derived from DNA, and maintaining the records and samples of DNA of individuals:

  • Convicted of any felony offense;
  • Required to register pursuant to the Sex Offenders Registration Act;
  • Subject to the availability of funds, 18 years old or older arrested for the commission of a felony under the laws of Oklahoma or any other jurisdiction, upon being booked into a jail or detention facility. Provided, the DNA sample will not be analyzed and must be destroyed unless one of the following conditions has been met:
    • the arrest was made upon a valid felony arrest warrant,
    • the person has appeared before a judge or magistrate judge who made a finding that there was probable cause for the arrest, or
    • the person posted bond or was released prior to appearing before a judge or magistrate judge and then failed to appear for a scheduled hearing; and
  • Subject to the availability of funds, convicted of a misdemeanor offense of assault and battery, domestic abuse, stalking, possession of a controlled substance prohibited under Schedule IV of the Uniform Controlled Dangerous Substances Act, outraging public decency, resisting arrest, escaping or attempting to escape, eluding a police officer, Peeping Tom, pointing a firearm, threatening an act of violence, breaking and entering a dwelling place, destruction of property, negligent homicide, or causing a personal injury accident while driving under the influence of any intoxicating substance, or, upon arrest, any alien unlawfully present under federal immigration law.

The purpose of this database is the detection or exclusion of individuals who are subjects of the investigation or prosecution of sex-related crimes, violent crimes, or other crimes in which biological evidence is recovered. That information cannot be used for any other purpose.

Who has to provide a blood or saliva sample prior to release from custody in Oklahoma?

Anyone convicted of any of the following misdemeanors in Oklahoma must provide a blood or saliva sample prior to release:

  • Assault and battery;
  • Domestic abuse;
  • Stalking;
  • Possession of a Schedule IV controlled substance;
  • Outraging public decency;
  • Resisting arrest;
  • Escaping or attempting to escape;
  • Eluding a police officer;
  • Peeping Tom;
  • Pointing a firearm;
  • Threatening an act of violence;
  • Breaking and entering a dwelling place;
  • Destruction of property;
  • Negligent homicide; or
  • Causing a personal injury accident while driving under the influence of any intoxicating substance.

This is subject to the availability of funds.

Who has to provide a blood or saliva sample as a condition of their sentence in Oklahoma?

Anyone convicted of any of the following misdemeanors in Oklahoma must provide a blood or saliva sample as a condition of their sentence:

  • Assault and battery;
  • Domestic abuse;
  • Stalking;
  • Possession of a Schedule IV controlled substance;
  • Outraging public decency;
  • Resisting arrest;
  • Escaping or attempting to escape;
  • Eluding a police officer;
  • Peeping Tom;
  • Pointing a firearm;
  • Threatening an act of violence;
  • Breaking and entering a dwelling place;
  • Destruction of property;
  • Negligent homicide; or
  • Causing a personal injury accident while driving under the influence of any intoxicating substance.

This is subject to the availability of funds.

HB 1609 amended 20 O.S. § 1313.2, 74 O.S. § 150.27a, & 22 O.S. § 991a. The change went into effect on November 1, 2017.

Sources: HB 1609, 20 O.S. § 1313.2, 74 O.S. § 150.27a, & 22 O.S. § 991a.

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Don’t Know Human Trafficking Victim’s Age – 2017 Oklahoma Laws #29

oklahoma human traffickingLack of knowledge of the age of the victim of human trafficking now does not constitute a defense to human trafficking of a minor in Oklahoma. The change in law makes human trafficking of a minor a strict liability crime. If you engage in human trafficking of a minor in Oklahoma, you can be found guilty no matter what you thought the victim’s age was—even if the victim lied about their age.

In Oklahoma, it’s unlawful to knowingly engage in human trafficking. “Human trafficking” is defined as modern-day slavery that includes, but is not limited to, extreme exploitation and the denial of freedom or liberty of an individual for purposes of deriving benefit from that individual’s commercial sex act or labor. “Commercial sex” means any form of commercial sexual activity such as sexually explicit performances, prostitution, participation in the production of pornography, performance in a strip club, or exotic dancing or display.

“Human trafficking for labor” means:

  1. recruiting, enticing, harboring, maintaining, transporting, providing, or obtaining, by any means, another person through deception, force, fraud, threat, or coercion or for purposes of engaging the person in labor; or
  2. benefiting, financially or by receiving anything of value, from participation in a venture that has engaged in an act of trafficking for labor.

“Human trafficking for commercial sex” means:

  1. recruiting, enticing, harboring, maintaining, transporting, providing, or obtaining, by any means, another person through deception, force, fraud, threat, or coercion for purposes of engaging the person in a commercial sex act;
  2. recruiting, enticing, harboring, maintaining, transporting, providing, purchasing, or obtaining, by any means, a minor for purposes of engaging the minor in a commercial sex act, or
  3. benefiting, financially or by receiving anything of value, from participating in a venture that has engaged in an act of trafficking for commercial sex.

“Coercion” means compelling, forcing, or intimidating a person to act by:

  1. threats of harm or physical restraint against any person;
  2. any act, scheme, plan, or pattern intended to cause a person to believe that performing, or failing to perform, an act would result in serious physical, financial, or emotional harm or distress to or physical restraint against any person;
  3. the abuse or threatened abuse of the law or legal process
  4. knowingly destroying, concealing, removing, confiscating or possessing any actual or purported passport, labor or immigration document, or other government identification document, including but not limited to a driver license or birth certificate, of another person;
  5. facilitating or controlling a person’s access to any addictive or controlled substance other than for legal medical purposes;
  6. blackmail;
  7. demanding or claiming money, goods, or any other thing of value from or on behalf of a prostituted person where such demand or claim arises from or is directly related to the act of prostitution;
  8. determining, dictating or setting the times at which another person will be available to engage in an act of prostitution with a third party;
  9. determining, dictating or setting the places at which another person will be available for solicitation of, or to engage in, an act of prostitution with a third party; or
  10. determining, dictating or setting the places at which another person will reside for purposes of making such person available to engage in an act of prostitution with a third party.

“Legal process” means the criminal law, the civil law, or the regulatory system of the federal government, any state, territory, district, commonwealth, or trust territory therein, and any foreign government or subdivision thereof and includes legal civil actions, criminal actions, and regulatory petitions or applications.

Punishment For Human Trafficking In Oklahoma

This crime is a felony. The range of punishment in the Department of Corrections is five years–life. The maximum fine is $100,000. If the victim was under 18 years old at the time of the offense, the range of punishment in the Department of Corrections is 15 years–life. The maximum fine is $250,000. The defendant must pay restitution to the victim. This is an 85% crime, so the defendant must serve 85% of their sentence before being eligible for parole consideration or any earned credits. The sentence may not be deferred or suspended, so a person convicted of human trafficking is ineligible for probation. The inmate is not eligible state correctional institution earned credits accruing from and after November 1, 1989, except for achievement earned credits. To qualify for achievement earned credits, the inmate must also be in compliance with the standards for Class level 2 behavior.

It is an affirmative defense to prosecution for a criminal offense that, during the time of the alleged commission of the offense, the defendant was a victim of human trafficking. The consent of a victim to human trafficking or any other activity in this law does not constitute a defense.

SB 34 amended 21 O.S. § 748. This change went into effect November 1, 2017.

Sources: SB 3421 O.S. § 748, & 57 O.S. § 138

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New Trespass & Damage To Critical Infrastructure Law – 2017 Oklahoma Laws #28

oklahoma critical infrastructureIt’s now illegal to trespass or enter property containing a critical infrastructure facility without permission by the owner of the property or lawful occupant of it. This crime is a misdemeanor. The minimum fine is $1,000. The maximum punishment in the county jail is six months. This crime is a felony if the intent of the trespasser was to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility. The minimum fine is $10,000. The punishment in the Department of Corrections is one year.

It is also a felony to willfully damage, destroy, vandalize, deface, or tamper with equipment in a critical infrastructure facility. The fine is $100,000. The maximum punishment in the Department of Corrections is ten years.

If an organization is found to be a conspirator with people who are found to have committed any of the crimes described above, the conspiring organization will be punished by a fine that is ten times the amount of said fine authorized by law.

A critical infrastructure facility in Oklahoma is:

  1. One of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization:
    1. a petroleum or alumina refinery,
    2. an electrical power generating facility, substation, switching station, electrical control center, or electric power lines and associated equipment infrastructure,
    3. a chemical, polymer or rubber manufacturing facility,
    4. a water intake structure, water treatment facility, wastewater treatment plant, or pump station,
    5. a natural gas compressor station,
    6. a liquid natural gas terminal or storage facility,
    7. a telecommunications central switching office,
    8. wireless telecommunications infrastructure, including cell towers, telephone poles, and lines—including fiber optic lines,
    9. a port, railroad switching yard, railroad tracks, trucking terminal, or other freight transportation facility,
    10. a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas or natural gas liquids,
    11. a transmission facility used by a federally licensed radio or television station,
    12. a steel-making facility that uses an electric arc furnace to make steel,
    13. a facility identified and regulated by the United States Department of Homeland Security Chemical Facility Anti-Terrorism Standards (CFATS) program,
    14. a dam that is regulated by the state or federal government,
    15. a natural gas distribution utility facility including, but not limited to, pipeline interconnections, a city gate or town border station, metering station, above-ground piping, a regulator station, and a natural gas storage facility, or
    16. a crude oil or refined products storage and distribution facility including, but not limited to, valve sites, pipeline interconnections, pump station, metering station, below or above-ground pipeline, or piping and truck loading or offloading facility; or
  2. Any above-ground portion of an oil, gas, hazardous liquid or chemical pipeline, tank, railroad facility, or other storage facility that is enclosed by a fence, other physical barrier, or is clearly marked with signs prohibiting trespassing, that are obviously designed to exclude intruders.

HB 1123 created 21 O.S. § 1792. It went into effect May 3, 2017.

Sources: HB 112321 O.S. § 1792

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