Oklahoma DUI Defense: The Law and Practice, Second Edition

Author: Bruce Edge, John Hunsucker, James Nesci ISBN 10: 1-936360-54-3 ISBN 13: 978-1-936360-54-3 Copyright Date Ed: December 22, 2015 Pages: 416 pages Binding Information: Casebound plus CD-ROM Size: 8.5 ✕ 11 Inches (US) With legislative developments, the introduction of blood alcohol-testing techniques, and an increasingly harsh prosecutorial climate, mounting a successful DUI defense in Oklahoma is more difficult than ever. With our brand new Oklahoma DUI Defense: The Law and Practice, Second Edition, though, you are equipped with a powerful weapon. This book ensures that you understand the chemical, biological, and technological concepts and issues underlying DUI prosecution and defense, with Oklahoma-specific advice that you couldn’t get from any other book. Authors Bruce Edge and John Hunsucker—in collaboration with James Nesci—provide the most authoritative book on defending DUI cases in Oklahoma. In 2006, Bruce and John were the first and only two Oklahoma DUI lawyers selected as Super Lawyers. Their opinions are sought after by other attorneys throughout the United States regarding DUI defense. Many practical tools and applications designed to streamline and simplify the complex DUI defense process are available on a bonus CD-ROM—so you can locate, review and print them out in a matter of seconds. Among this bonus material are DRE and NHSTA student and instructor manuals, and numerous validation studies. Lawyers & Judges has published twenty state-specific DUI defense reference books. A practitioner in Colorado raved in the Colorado Lawyer that Colorado DUI Defense: The Law and Practice is “a must-have resource” and would make “a nice gift for the lawyers in your life who practice DUI defense.” The Wisconsin Lawyer reviewer gave Wisconsin OWI Defense: The Law and Practice a touchdown review, calling the book “the best book I have read pertaining to Wisconsin operating-while-intoxicated (OWI) law, and one of the best in dealing with the substance of OWI law.” Topics Include: Advertising Client Relations DUI and the Oklahoma Motor Vehicle Division Pre-trial Investigations Pre-trial Motions Practice Plea Offers and Agreements DUI Trial Procedures DUI Investigations, Driving & Field Sobriety Testing Drug Recognition Evaluation Chemical Testing Blood Alcohol Calculations Expert Witnesses Resources Oklahoma Case Law CD-ROM topics include: USDOT “Drugs That Impair Driving” manual “DUI Mandatory Sentencing Chart” USDOT “DWI Detection and Standardized Field Sobriety Testing” manual USDOT “SFST Refresher Training Course” manual Oklahoma rules Jury instructions NHTSA “The Detection of DWI Motorcyclists” brochure NHTSA visual detection (videos) Table of Contents Table of Cases How to Use this Book Foreword Chapter 1: Lawyer Advertising 1.1 Ethical Issues 1.2 Advertising Resources A. Phone Book Advertising B. Internet Advertising C. Giveaways 1.3 Social Media A. Ethical Concerns B. Confidentiality vs. Privilege C. The 3 Tenets of Social Media: Timeliness, Honesty, and Transparency D. Faceboook E. Twitter F. Social Media as a Research Tool G. Final Thoughts on Social Media Chapter 2: Client Relations 2.1 Meeting the Prospective Client 2.2 Client Intake Questions 2.3 Client Intake Interview 2.4 Retainer Agreements 2.5 Fees 2.6 IOLTA 2.7 Communication 2.8 Client Interview 2.9 Client File Retention Chapter 3: Driving Under the Influence 3.1 Types of Misdemeanor DUI 3.2 DUI with Great Bodily Harm 3.3 Child Endangerment 3.4 Felony DUI 3.5 Prior Offenses in Felony Cases 3.6 Aggravated DUI 3.7 Forfeiture of Property 3.8 Death from a DUI Accident 3.9 Reckless Driving 3.10 Minor Driving With Alcohol in the Body 3.11 Operating a vessel under the influence of alcohol—Boating 3.12 Court Costs and Fees 28 O.S. § 4-153 Chapter 4: Clients with Special Circumstances 4.1 Representing a Military Client for DUI/DWI A. Jurisdiction B. On-Base/Military C. Nonjudicial Punishment D. Federal Prosecution E. Double Jeopardy F. Court-Martial G. Off-Base/Civilian and Military Punishments H. Post-Traumatic Stress Syndrome I. Summary 4.2 Canadian Travel 4.3 Pilots and Merchant Marines 4.4 Non US. Citizens—Immigration Chapter 5: Department of Public Safety 5.1 Overview 5.2 Chemical Testing 28 O.S. § 4-153 5.3 Implied Consent Test Request 5.4 Notice of Revocation 5.5 Implied Consent Hearing/Modification 5.6 Implied Consent Hearing 5.7 Modification of Driver’s License 5.8 License Revocation as the Result of a Criminal Conviction 5.9 Length of Revocation for DUI/APC/DWI 5.10 Refusal 5.11 Post Revocation Action - Erin Swezey Act 5.12 Excessive User 5.13 Repeat Offenders and Excessive Users of Alcohol - Restricted License - Interlock Device 5.14 Commercial License 5.15 Alcohol and Drug Substance Abuse Evaluation Programs Chapter 6: Pre-Trial Investigations 6.1 Overview 6.2 Proper Filing Techniques 6.3 Visiting the Scene 6.4 Photography and Videos 6.5 Diagrams and Aerial Photography 6.6 Accident Reconstruction 6.7 Event Data Recorders (Black Boxes) 6.8 Roadblock (a.k.a. “DUI Checkpoint”) Investigations 6.9 Pretrial Interviews 6.10 Request Judgement and Sentences Paperwork 6.11 Request All Videos Chapter 7: Pre-Trial Motions Practice 7.1 Overview 7.2 Procedural Motions 7.3 Substantive Motions 7.4 Motions in Limine 7.5 Evidentiary Hearings Chapter 8: Plea Offers 8.1 Overview 8.2 Waiver of Rights 8.3 Collateral Consequences 8.4 Exposure of Prior Offenses—Predicates 8.5 Misdemeanor Plea Offers 8.6 Felony Plea Offers Chapter 9: Trial 9.1 Overview 9.2 Voir Dire and Jury Selection 9.3 Jury Instructions 9.4 Opening Statements 9.5 Cross-Examination 9.6 Direct Examination 9.7 Closing Argument 9.8 Sentencing Chapter 10: DUI Investigations: Driving and Field Sobriety Testing 10.1 Overview: National Highway Traffic Safety Administration (NHTSA) 10.2 Driving Behavior 10.3 Standardized Field Sobriety Testing (SFST) Validation Studies 10.4 Legal Analysis and Summary of the SFST Validation Studies 10.5 Standardized Field Sobriety Test Battery 10.6 Horizontal Gaze Nystagmus (HGN) 10.7 Walk and Turn 10.8 One-Leg-Stand 10.9 Correlation Between BAC and HGN or FSTs 10.10 Refusal of SFSTs and General Admissibility 10.11 Commonly Used Non-Standardized/Non-Validated Field Sobriety Tests 10.12 Videotaping the Driving and Investigation References Chapter 11: Drug Recognition Evaluation 11.1 Overview 11.2 DRE Statutory Law 11.3 Per Se Statutes Comparison 11.4 Impairment Statutes Comparison 11.5 Defenses 11.6 Implied Consent Laws Comparison 11.7 DRE Case Law 11.8 The 12-Step DRE Protocol 11.9 Deconstruction and Analysis of the 12-Step DRE Protocol 11.10 Effects of Various Drugs 11.11 Drug Evaluation Classification Protocol (DECP) 11.12 Drug Evaluation Classification Training Program Chapter 12: Chemical Testing 12.1 Preliminary Breath Testing 12.2 Commonly Used PBT Devices 12.3 Evidential Breath Testing 12.4 Infrared Light Absorption 12.5 Basic Operation 12.6 Intoxilyzer® Printouts 12.7 Henry’s Law and the Blood-to-Breath Ratio 12.8 Breath Testing: Methods of Attack 12.9 Calibration 12.10 Simulators Approved in Oklahoma 12.11 Statutory Requirements for Admissibility of Breath Test Results 12.12 Blood Testing: From the Vein to the Lab 12.13 Headspace Gas Chromatography 12.14 Blood Testing For Drugs 12.15 Secondary Blood Testing Chapter 13: Blood Alcohol Calculations for Attorneys 13.1 Blood Alcohol Calculations for Attorneys 13.2 Determining the One-Drink Potential 13.3 Elimination and Retrograde Extrapolation 13.4 White’s Retrograde Extrapolation 13.5 Partition Ratio Conversions 13.6 Unit Conversions Chapter 14: Expert Witnesses 14.1 Overview 14.2 Pretrial Preparation 14.3 Direct Examination of the Defense Expert Witness 14.4 Cross of the State’s Expert Witness 14.5 Direct Examination of the State’s Expert as a Defense Witness Chapter 15: DUI Jury Trial Warpack 15.1 Actual Physical Control (APC) 15.2 Appellate Standard of Review 15.3 Arrest 15.4 Blood Draws 15.5 Burden of Proof 15.6 Chain of Custody 15.7 Circumstantial Evidence 15.8 Closing Arguments—Ethical Considerations 15.9 Collateral Estoppel in DUI Cases 15.10 Comment of Defendant’s Silence 15.11 Confrontation 15.12 Continuances 15.13 Corpus 15.14 Credibility of Witnesses 15.15 Destruction of Evidence 15.16 Directed Verdict - 22 O.S. § 850—Advising a Jury to Acquit Defendant 15.17 Discovery Rule - 22 O.S. § 2002—Disclosure of Evidence by State and Defendant—Duty of Disclosure 15.18 Double Jeopardy 15.19 DPS 15.20 Evidence 15.21 Expert Witnesses 15.22 Field Sobriety Test Admissibility 15.23 Impeachment 15.24 Intoxilyzer® Test 15.25 Jurors 15.26 Jury Instructions 15.27 Jury Trial Right 15.28 Miranda 15.29 Necessity Defense 15.30 Opinion Testimony 15.31 Plea Agreements 15.32 Predicate Offenses (prior convictions) 15.33 Prior Convictions 15.34 Probable Cause 15.35 Reasonable Suspicion 15.36 Relation Back 15.37 Restitution 15.38 Right to Counsel 15.39 Sentencing 15.40 Speedy Trial 15.41 Voluntariness of Statements Appendix A: Oklahoma Evidence Code Appendix B: Oklahoma Rules of Professional Conduct Appendix C: Oklahoma Uniform Jury Instructions, Criminal 2nd Edition Appendix D: Title 40—Board of Test for Alcohol and Drug Influence Appendix E: Title 595—Department of Public Safety Appendix F: The Aging Process and Field Sobriety Tests by Mimi Coffey, Esq. Appendix G: DWI—Modern Day Salem Witch Hunts by Mimi Coffey, Esq. Appendix H: DWI—Fear and the DWI Field Sobriety Tests by Mimi Coffey, Esq. About the Authors Index