For nearly 50 years, the Dept. of Public Safety has seized and revoked drivers licenses of motorists arrested for DUI in Oklahoma. Oklahoma law required licenses to be revoked as a matter of civil law, long before a driver was afforded due process of law in a criminal court.
Mandatory drivers license revocations on arrest could soon be a thing of the past. Both sides of legislature have approved virtually identical bills that would repeal troubled civil revocation laws.
Except not. The House passed the Senate’s bills without a title, which means the bills otherwise passed by supermajorities on both sides of the legislature could die in conference committee. As of today, April 30, 2018, the legislature appears poised to adjurn without acting on the bills. Apparently stripping the title of a bill is a way of voting yes-but-no.
If the legislature does not enact a bill, it leaves the DUI revocation process in a bit of a mess, susceptable to whatever stop-gap strategy state officials cobble together out of remnants of laws state courts have otherwise repeatedly overturned.
The process of civil revocation is currently at a virtual standstill. In recent years, the Oklahoma Supreme Court repeatedly found flaws in an increasingly streamlined civil process for revoking drivers licenses after arrest but before a conviction on DUI charges.
In place of a retired revocation-on-arrest system, Oklahoma lawmakers want drivers to voluntarily install ignition interlock devices after they are charged with DUI. Drivers who immediately install an ignition interlock could have it removed in half the time they would otherwise be required to drive with an ignition interlock if they are eventually convicted of DUI. (Ignition interlock devices require a driver to pass a breath test for alcohol before a vehicle can be started).
A first-time DUI conviction would mean a year of driving under a restricted license with an ignition interlock system. If the driver agreed to have the device installed within a few weeks of arrest, a conviction would mean only six months of restricted interlock driving, with some or all of that time already behind the driver by the time the case eventually goes to court.
A second DUI conviction would mean 24 months restricted driving. Voluntary installation after arrest could cut that to one year. A third conviction would mean 48 months of restricted driving, or 24 months if the driver voluntarily accepts the ignition interlock program.
On April 26, 2018, the Oklahoma House approved by landslide majorities a trio of bills the Senate in March approved by similarly overwhelming majorities. The bills repeal sections of law the Oklahoma Supreme Court struck down in December 2017, instead approaching DUI license revocations from a new angle.
It might be too early to comment on details of the new law. The versions lawmakers approved lacked titles – a procedural move that preserves opportunities for revisions in conference committees involving both sides of the legislature.
The general direction of what could be historic reform is more certain. The reforms suggest lawmakers, and probably the state agencies with whom they consult, are looking at DUI prosecutions from a new angle. That realization could be summarized as an understanding that most drivers arrested for DUI know they made a mistake.
Whether they understand the mistake as having violated a law, or having put others at risk by their own risky behavior, the view among some officials is that most people charged with DUI are one-time offenders. After an arrest, those people might decide to avoid drinking and driving regardless the severity of sanctions.
Another group, however, might never stop drinking and driving. Those drivers might be imprisoned for years only to get behind the wheel drunk the day they are released. Some public officials would say sanctioning them will never change their ways.
A third group might or might not consider their behavior a problem, but there is a good chance they will avoid drinking and driving if coaxed, persuaded or assisted through effective enforcement. Oklahoma’s new approach to drivers license revocations could seek to reward those inclined to correct their own behavior while applying more pressure to drivers who might need persuasion to avoid drinking and driving.
New understandings of what might work with various types of DUI offenders is only part of the story. The state’s efforts to revoke and restrict driving privileges prior to a conviction in recent years have repeatedly been overturned by the state Supreme Court.
Beside the facts of individual cases, there are a couple of factors at play in the state’s repeated losses related to pre-conviction license revocations. Factually, losses involved short-cuts in state rule-making, speedy trial issues and defendants right to question the people behind machines used to produce evidence. Broadly, a backlog of cases swamped the DPS as legal issues piled up. Lawmakers playing a catch-up game did not keep up with the legal concerns the state Supreme Court exposed in the process.
Two factors that most significantly swayed the dismantling of a decades old revocation law were Oklahoma’s two-sided appeals court system and a new computerized breathalyzer machine deployed across the state.
Because Oklahoma provides separate appeals courts for criminal and civil cases, appellate issues involving drivers license revocation prior to a DUI conviction wind through different courts than appeals in criminal issues.
We cannot say with any certainty that judges on Oklahoma’s Court of Criminal Appeals would reach different conclusions than those returned by civil-appeals judges if the criminal judges were considering questions of civil law. As inveterate observers of Oklahoma courts, however, we notice the state’s civil-law-only Supreme Court seems more willing to chasten the State for failure to strictly follow statutory and constitutional mandates.
Of the several errors for which the Oklahoma Supreme Court rejected drivers license revocation procedures, those involving the latest generation of breathalyzer machines appeared to us to be the most insurmountable.
And, again, we did not ask state agency officials and legislators to what extent the new Intoxilyzer 8000 influenced their decision to throw out 50 years of law requiring mandatory civil revocation of drivers licenses after a DUI arrest. We noticed, as did other Oklahoma DUI attorneys, that the new generation of computer-controlled breathalyzers made it difficult if not impossible for defendants to confront their accuser. We recognized that as a hurdle lawmakers were not likely to overcome on at least one side of Oklahoma’s two-sided court system.
To confront an accuser when evidence is produced by a computer means calling to court the person or company that programmed the computer. At a minimum, it means calling witnesses who can testify about maintenance and calibration procedures. Other states, and to some extent Oklahoma have tried to eliminate the need to have a company or agency staffer testify at every hearing involving a computerized breathalyzer through lawmaking or rule-making that stipulates some machines as reliable.
Oklahoma’s Court of Criminal Appeals recently determined that jurors can decide whether they trust breathalyzer results even if state rules for maintaining the machines are not promulgated according to the letter of state law. On the civil side, Oklahoma’s Supreme Court would have none of that.
Promulgating rules for any agency, however, is a tedious process. It requires public notice, legislative scrutiny and potentially, public hearings. At one point, the Oklahoma Board of Tests for Alcohol and Drug Influence got the legislature to approve a rule that said the board could adopt its own rules at board meetings. Once again, the Oklahoma Supreme Court said no.
The legislature was left to patch up a civil-revocation process that either required tedious consideration of administrative rules for breathalyzer tests, or passing all new laws that would take revocation processes out of civil courts. Lawmakers tried that in 2017. No, said the Supreme Court.
Oklahoma’s top civil court overturned lawmakers 2017 DUI bill as a violation of the state’s single-subject rule. The court has overturned several laws in recent years for the same reason, including appropriations bills, an abortion law, tort legislation and the DUI legislation.
It remains to be seen whether the trio of bills sailing through the 2018 session will face similar review for multiple-subject “log-rolling.” One bill – SB1164 – addresses drivers license revocation. In addition to revocation for DUI convictions, the bill provides revocation penalties for convictions on 10 other offenses.
Other revocable offenses named in the bill include vehicular manslaughter, use of a motor vehicle in any felony, perjury related to motor vehicle ownership, most drug offenses where a motor vehicle is involved, theft of gasoline, abandoning merchandise in interstate commerce, commercially transporting minors in possession of alcohol, failing to obey a traffic control device resulting in injury and failure to stop for a school bus.
If the revocation bill passes muster as a single-subject bill, questions could still arise around a bundling clause that makes the bill effective only if a related bill takes effect as law. The related bill, SB1163, establishes the Impaired Driver Accountability Program (IDAP) to reduce revocation periods for drivers who voluntarily install ignition interlock devices after a DUI arrest. A third related bill creates penalties for tampering with ignition interlock devices.
There are several things that could go wrong before otherwise virtually veto-proof bills become law. Lawmakers could introduce changes in conference committees that undermine broad support on either side of the legislature. It could be that the laws breezed through both sides of the legislature with super-majorities only to die in conference committee.
The legislature has procedures for cleaning up clerical errors, but even simple errors could arguably derail the bill.
On the other hand, the bills’ landslide majorities are motivated by a need to get some law on the books to replace several statutes overturned on single-subject violations in Hunsucker v. Fallin 2017 OK 84. Without a new revocation law, state agencies are left to defend the increasingly indefensible revocation laws on the books prior to 2017.
Presuming the measures are signed into law and survive any state Supreme Court review, we might still have concerns about the fast-track voluntary ignition interlock program. A DUI defense lawyer would want to know whether drivers were required to admit any facts that could affect a criminal case before we could confidently urge anyone to go along with a voluntary revocation. DUI attorney might question whether self-employed drivers disqualified from the short-term interlock program are denied constitutional rights to equal protection of the law.
Overall, while the bills raise new questions, we find it refreshing to see the legislature and state agencies take a step back to consider a new approach. We might not agree that ignition interlock devices make any difference. Some research says they can even cause hazards if drivers are required to prove their sobriety repeatedly while driving. Yet that has been lawmakers’ direction here and in many states for a while.
We are otherwise glad to see the state finally letting go of a process that was not working. We consider it a reasonable approach to acknowledge that some people accused of breaking a law know they made a mistake. We stand by clients when they acknowledge mistakes and ask for leniency. If the state does not intend to coerce accused drivers to admit mistakes they did not make, we are interested to see how the state’s new revocation laws work. We are sure we will find an opportunity to challenge them if they are wrong.