In State Law, First Offense DUI Is Going to Be a Misdemeanor, but Your Second Offense, If You Have a Predicate Prior Conviction, Is Going to Be a Felony
Video Transcribed: DUI is never a felony under the Muscogee Creek Nation Tribal Court.
I’m Tulsa attorney, James Wirth. We’re talking about some of the differences between state law and the Muskogee Creek Nation Tribal law, now that the United States Supreme Court in McGirt has found the Muscogee Creek original reservation has not been disestablished and actually it comes as a nice chunk of Northeast Oklahoma, including most of Tulsa County and all of, many of the surrounding counties.
So we’re seeing a lot of cases get dismissed in state court because that McGirt case says that the state court has no jurisdiction over crimes committed by or against tribal members on the reservation. And now we’re seeing a lot of new cases filed in Muscogee Creek Tribal Court.
So we’re looking at the differences between state law and the tribal law. And one of the interesting differences deals with DUI.
Because in state law, first offense DUI is going to be a misdemeanor, but your second offense, if you have a predicate prior conviction, is going to be a felony. So you get a felony conviction and is subject to harsher penalties.
The code deals with driving under the influence and most of the definitions that it talks about and how DUI is defined are the same. 0.08 or above blood alcohol level, based on breath or blood test within two hours of arrest.
That’s all pretty similar, so how you prove it, what’s required to be proven, pretty similar.
Also, it includes actual physical control, APC, same as state law. It’s not enough or it’s not required that you’re actually driving to get a DUI.
If you’re just in actual, physical, control of the vehicle, meaning you’ve got keys in your pocket and you’re sitting in the driver’s seat, that’s going to be actual physical control.
If you’re intoxicated, that could be a DUI, even though there’s no driving involved. So that’s the same in state court, as well as the Muscogee Creek Nation Tribal Court.
And when you get to the punishment, it sounds similar. A person convicted of violating the foregoing provision shall be guilty of a misdemeanor, but this is where it gets different.
Under the state law, it has, but for a second offense, this, but for a second felony offense, this, so first offense is a misdemeanor in state law. Second one’s going to be a felony. Third one’s going to be a felony with more harsh punishment.
But there is no predicate offense. There’s no enhancement under the Muscogee Creek Nation tribal code. So your first offense is a misdemeanor. Your second offense is a misdemeanor. Your third offense is a misdemeanor. No predicate can make it an Oklahoma felony.
There is no specific enhancement under the tribal code and that’s something very different about the tribal code in the Muscogee Creek Nation versus state court, the way it used to be tried if you were a native American.
If you’re dealing with those circumstances or you have a conviction that you think was improper in state court, you’re going to want to talk to an attorney about your specific circumstances. Talk to someone in my office by going to makelaweasy.com.