Tulsa Attorney BlogState Question 805: How Does It Affect Certain Crimes? (Part 7)

Violent Offenses Are Not Affected at All by SQ 805

Video Transcribed: How does State Question 805 apply to certain concerning felony crimes? I’m Tulsa attorney James Wirth. I’m doing a series of seven videos discussing issues related to State Question 805, and this one addresses three of the particular crimes that you hear people in opposition concerned about. The first one is domestic A&B by strangulation.

First off, violent offenses, which means that they are on a list of violent offenses listed by statute, those crimes, they’re not affected by State Question 805 at all. They are just crimes that are not on that list that are affected, so domestic A&B, assault, and battery by strangulation is one that is not included as a violent crime for the purposes of State Question 805 because that crime was not added to the violent crime list until November 1st of 2020, and State Question 805 goes by the definition as of January 1st of 2020. So that means that State Question 805 is applicable to this crime.

So if somebody is charged with domestic A&B by strangulation the current range of punishment is one to three years, but with a sentence enhancement for a second offense of that the range of punishment goes to three to 10 years. Now if somebody doesn’t have a prior conviction for domestic A&B by strangulation but has a prior conviction for something else then the range of punishment instead of being one to three oddly enough is zero to 10.

But if you have two prior felony convictions then that goes to 20 to life. So somebody who is convicted of domestic A&B by strangulation with two prior felony convictions, even if the felony convictions are just like larceny of merchandise from a retailer or possession of meth prior to the law-making that a misdemeanor, then those are going to enhance to where you have to serve a minimum of 20 years. That person has a minimum of a 20-year sentence and a maximum of up to life. That’s a very wide range of punishment, but it’s a very stiff minimum.

It’s important to note that just because the title of the statute calls it strangulation it doesn’t always mean that it’s defined as strangulation. In this case, it’s interesting to note that when this goes before a jury to make the determination of whether the crime was committed or not the jury instructions aren’t going to actually require strangulation, because attempted strangulation is strangulation under the statute.

So we’ve got to consider that as well, that under these circumstances if somebody has got two prior felony drug offenses and then within 10 years the cops are called on them for domestic violence where there’s an allegation of strangulation the jury doesn’t have to find that there even was strangulation, only that it was attempted, and the minimum sentence… The jury cannot sentence them, or recommend sentencing any less than 20 years. They’ve got to at least give them 20, but they have the opportunity to recommend up to life.

So if State Question 805 passes that go away. The maximum sentence is one to three years, and I can tell you as handling criminal offense representation as well as representing victims that it’s very rare that people get the maximum sentence, so the fact that sentencing enhancement goes away doesn’t necessarily mean these people are going to get lighter sentences.

The range of punishment may go down, but because they’re not usually getting that high end of the sentence anyway their sentence may still stay the same, but that’s going to be on a case by case basis. So that deals with domestic A&B by strangulation.

Okay, the next one people have concerns about is DUI with great bodily injury. That is not on the violent crime list. It’s never been on the violent crime list. The regular range of punishment for that is four to 20 years. So for a first offense, no priors, that’s four to 20 years.

Now right now, without 805, if you have a prior felony conviction, no matter what that prior felony conviction is that minimum doubles and it goes up to eight, and the maximum goes from 20 to life, so a minimum of eight years for a DUI with great bodily injury.

If you have two prior felony convictions, then that minimum triples to 12 and it’s still a maximum of a life sentence, so that’s a pretty hefty sentence in my opinion for although obviously a bad crime with a tragic result, it is not somebody who was necessarily intentionally harming somebody. But that’s something that has to be considered when you decide how you want to vote on State Question 805.

The other one deals with sexual battery. That is not a violent offense that’s on the statutory list, so it is affected by State Question 805. Right now what the law says, the range of punishment is zero to 10.

With 805 for the first offense with no priors, it would still be zero to 10, but if you have one prior felony conviction it goes to a range of punishment up to life, all the way to life. It goes from a maximum of 10 years to a maximum of a life sentence if you have one prior felony conviction, no matter what that prior felony conviction is. Then if you have two prior felony convictions it goes four to life.

I recall one case where I had a client who had a bail bondsman and he grabbed her bottom and was charged with sexual battery, so that is an example of what a sexual battery is. It’s just grabbing somebody, and obviously, we don’t want that kind of behavior and we want that kind of behavior punished, but we have to consider also what is the cost to society of incarcerating somebody and the financial cost, about 16,500 per year, but it’s also a loss of productivity by having that person incarcerated. It also affects that person’s family, that person’s kids, all of those circumstances, and those have to be thought about.

So for that crime of grabbing someone’s butt without permission, is a 10-year sentence not sufficient? Because if a 10-year sentence is sufficient for that in all cases, then you don’t have to worry about State Question 805, But if you think that you want the jury to have the ability to go all the way to life incarceration, then you may not want to vote for State Question 805, because that will put the maximum sentence at the regular sentence for a first offense, which is the zero to 10.

Hopefully, that answers your questions on how 805 would affect various circumstances. If you still have questions about that we do have attorneys that answer questions all day long. So if you want to talk to somebody in my office you can go to makelaweasy.com.

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