Big 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)?
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;
- 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:
- if timely requested by the person, the person was not denied a breath or blood test,
- the blood or breath specimen was obtained from the person within two hours of his or her arrest,
- 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),
- 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
- 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:
- the person refused to submit to the test or tests, and
- 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.