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The Oklahoma legal limit for DUI is a 0.08 "alcohol concentration". This means that your BAC or blood alcohol content must not meet or exceed 0.08. See 47 O.S. Sec.756 (B). DWI, or Driving While Impaired, means that your "alcohol concentration" falls between 0.05 and 0.08. If you have a BAC of 0.05 or higher the prosecutor is allowed to argue to the jury that you are presumed to be guilty (of DUI if 0.08 or above). Often an experienced attorney can effectively rebut that presumption. The case against the accused may consist of one or both of the following: 1) the BAC; or, 2) Evidence of impairment. Sometimes, effective defenses can be made to both, depending on the facts of the case.
Blood Alcohol Content
The procedures and testing equipment for determining a driver's Blood Alcohol Content are not perfectly accurate. The machines used in the test commit errors - and the officers giving the test make mistakes in following the test procedure. In addition, foreign substances in the mouth can throw off the results. If your test was a blood draw, you are allowed, under the law, to have a sample of your blood tested independently. If the retest shows a result that is significantly different from the original result- even if it is higher- the test may be shown to be scientifically unreliable, and the evidence may be thrown out. Your BAC is only relevant at the time you are driving. If the test is given too long after you are arrested, the results against you may be inadmissible. Further, because we do not absorb alcohol into our system immediately, your pattern of drinking on the day in question may case doubt on the results of your test.
Evidence of Impairment
Whether you were impaired or not is a very subjective determination made by an officer who is not always objective. I do not remember ever seeing a DUI police report- and I have seen hundreds of them- that did not include words similar to the following: "The subject had blood-shot, watery eyes, slurred speech, and slow motor skills." Yet from our personal experience we know that sometimes intoxicated people have blood-shot, watery eyes, and sometimes they do not. The same is true for slurred speech or motor skills. While police officers are doing the much needed duty of keeping our roads safe, once you are accused they will use the language calculated to secure your conviction. The evidence of impairment against you may include:
Your performance on Standardized Field Sobriety Tests (or SFST's);
The officers observations, such as blood-shot, watery eyes;
Your statements to the officer; and
Observations of your driving.
Field Sobriety Tests
Field sobriety tests includes walking in a straight line, balancing on one foot, and the "Horizontal Gaze Nystagmus" test. Upon taking the HGN you are asked to watch the tip of a pen as the officer moves it from side to side. The tests may also include reciting the alphabet and other tests. Your performance on these roadside tests is, again, a subjective determination. Police officers are required to perform these tests in specific ways - many times the proper protocol is not followed. This may make the observed results invalid. If there is no observed bad driving, this may tend to disprove the assertion that you "failed" the field sobriety tests.
The penalties for DUI offenses have increased dramatically in recent years. Second or subsequent convictions can lead to significant jail sentences. Additionally, the status of your Driver's License will be affected by any DUI conviction.