DUI Per Se in Oklahoma
If you are arrested and charged with DUI in Oklahoma, the prosecution will attempt to prove your guilt under one of two theories:
- That you were operating a vehicle while under the influence of drugs or another intoxicating substance
- That you were operating a vehicle while having a blood alcohol concentration (BAC) of .08% or higher
The first theory, which is sometimes referred to as the “common law” theory, will depend heavily on eyewitness testimony, typically from the arresting officer.
The second theory is known as the “per se” theory. This means that, under Oklahoma law, you are presumed to be under the influence of alcohol if your BAC is .08% or higher.
In other words, if the prosecution can show that your BAC was, in fact, .08 or more at the time of driving, no other evidence of intoxication—such as poor driving, poor performance on the field sobriety tests, or the infamous “odor of alcohol”—is needed to find you guilty under the law.
Ways to Fight a DUI Charge
Though it may sound like an easy win for the prosecution, there are plenty of ways to fight a DUI charge, even when the state is pursuing the per se theory during trial.
For example, in order to show that your BAC was in fact above the .08 threshold, the prosecution must prove that the chemical BAC test was authorized and administered in accordance with state law. This involves a number of elements, all of which may be attacked by your defense attorney.
Examples of these elements include:
- The officer having sufficient reason to initiate the traffic stop of your vehicle in the first place
- The officer having probable cause to conduct a DUI investigation
- The officer having probable cause to arrest you for allegedly driving under the influence
- The officer administering the breath test being properly trained and certified to operate the breath testing machine
- The breath testing machine being properly maintained and calibrated
- The administering officer conducting the breath test in accordance with all procedures and regulations (for example, observing you for 15 minutes prior to conducting the test)
If you submitted to a BAC test of your blood, your attorney will have even more elements to attack.
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