|> Success Stories|
Success Stories in DUI/APC cases
Here are a few examples of attacks and defense techniques that our office has used in defending clients that MIGHT be available in YOUR case:
STOP UNWARRANTED - CASE DISMISSED & LICENSE RETURNED
From the Oklahoma Criminal Defense Weekly, March 19, 2007:
CHARLES SIFERS, OKC, laced them up in Beckham County defending a client charged with DUI, DUR, and Straddling Lanes. The trial judge was the Hon. Floyd Haught and the prosecutor was Gina Webb. Client had two prior DUIs and two prior drug arrests. In this case, client refused the State's test. The centerpiece of the State's case was a 45-minute videotape of the traffic stop and drive to jail which featured client cussing the arresting officer for a good 30 minutes(!) Charles reports that he filed 22 motions prior to trial and 4 more motions in limine on the day of trial (including one dealing with the refusal jury instruction) and Judge Haught denied them all! Although Charles conducted voir dire and gave the opening statement, our law firm stepped up and cross-examined the State's main law-enforcement witness. How do you know if you've done a good job on cross-examination? When the prosecutor mentions in closing argument that she did not know who testified more, you or the cop witness. Sounds like our law firm is on the right track. Although it was a close question, client did not take the stand. The jury came back with a not guilty on the DUI but guilty on the other two misdemeanors, proving once again there are few lawyers in Oklahoma with a more firm grasp on DUI law than Charles. Congrats on a good win!
NO CONTROL OF THE CAR
V.M., a resident of another state, was in Oklahoma City on business a few months ago and was staying at a motel. One evening, he went out to eat (and drink) with co-workers. On his way back to the motel, he stopped at a convenience store to buy beer. After he went into the store, a Highway Patrolman also stopped at this store to buy gas. This Hi-Po noticed a car (V.M.'s) parked in a clearly marked handicapped space. When V.M. exited the store carrying the beer, the Hi-Po saw him walking to the illegally parked car "unsteady on his feet", open the car door, hand the beer to the passenger, and start to sit down in the driver's seat. However, before V.M. could sit down in the car, the Hi-Po yelled at him to "come here". V.M. never completed his entry into the car. He straightened back up and went to the officer. V.M. was then arrested for Actual Physical Control of a Motor Vehicle while under the influence of Alcohol ("APC").
The State tried to revoke his out-of-state driver's license. An APC charge was filed in Oklahoma County District Court. The D.A. wanted a conviction and fine (etc).
V.M. hired Sifers & Sifers to represent him. After the Department of Public Safety ruled against him on his license, our office filed a District Court Appeal. At the appeal, the senior Mr. Sifers showed the judge that, since V.M. never got into the car, the crime of APC was never committed and the arrest was therefore invalid. License returned. A transcript of that trial was obtained and delivered by Mr. Sifers to the D.A. in the Oklahoma County District Court criminal case with the suggestion "to read this". A few days later, the D.A. outright dismissed the charge. No loss of license. No conviction (or fine or probation) of the APC.
2007 STARTS OFF GOOD FOR OUR CLIENTS
At of the first of 2007, two (2) of our felony DUI cases in Oklahoma County District Court came up for final conclusion. Both had reached the point of the end of any further negotiation. In each case, the prior DUI that the State was using to enhance the new case to a felony was from the Oklahoma City Municipal Court. At pre-trial, we were able to show the DA that in both cases that the State's evidence to prove the prior conviction was INSUFFICIENT! In other words, the State COULD NOT prove a felony if the case actually went to trial. In both instances, the State amended the charges to MISDEMEANORS and neither of these clients were convicted of a felony!
CHARLES SIFERS' EFFORTS HELP EVERY FUTURE OKLAHOMA DUI DEFENDANT
Charles has argued - for almost a decade - that the way the courts treat breath and blood test refusals in jury trials was unfair to the defendants. The law provided no jury instruction to the jury members in a case as to how refusing a test should be considered. The prosecutors of this State have always argued that a simple refusal by a defendant meant he KNEW he was guilty of being under the influence, WITHOUT any further evidence. He designed an instruction that required the State to prove MORE, and specifically, to make the State prove that the person KNEW he was guilty AND that the person refused to take the test so as to evade or avoid conviction. This instruction further stated that IF THE STATE DID NOT PROVE this extra stuff, the refusal COULD NOT be considered by the jury as evidence of guilt. Some judges had accepted this; some had not. The Gauntlet published a couple of articles written by Charles that set out this argument AND the instruction that he designed (See DUI REFUSALS: Jury Instructions, The Gauntlet, Fall, 2005, and DUI Jury Trials: More on Refusal Jury Instructions, The Gauntlet, Spring, 2006). A couple of Tulsa lawyers borrowed this argument and set of instructions and used them in a case there. Their case resulted in a conviction which was appealed. At the end of 2006, the Oklahoma Court of Criminal Appeals, the State's highest court in criminal matters, returned a decision in that Tulsa case that said that an instruction of the type that Charles had been arguing for years MUST BE given in future in the every DUI jury trial with a refusal!! And, the instruction to be given was to be modeled after the very argument that Charles had been making!! A success story for ALL involved AND every person from this point forward who is ever arrested for DUI and refuses the test.
NOVEMBER 6, 2006 EXCERPT(S): OKLAHOMA CRIMINAL DEFENSE NEWSLETTER
"CHARLES SIFERS, OKC, share some of their fine advocacy in recent cases. The details of these cases were provided to me by Charles himself and I think have some good tips and lessons on how to aggressively defend DUI cases (from one of the very best):
Fun in Municipal Court: Charles was hired by two clients in separate DUI cases in Bartlesville Municipal Court (a court not of record) earlier this year. One client was a first-time offender from Texas. The other client was a local with a class B CDL and a previous non-alcohol felony conviction. The Municipal Court in Bartlesville does not have a prosecutor. The arresting officer simply testifies before the Judge and acts as a de facto City Attorney. The judge informed Charles, almost proudly, that there was no plea bargaining in his court on DUI's; and since there was no chance of jail time, the options were to plea to the charge and receive a fine or have a bench trial. Charles opted for a bench trial in both cases. As you might expect, the trials proceeded in a somewhat different manner regarding the rules of evidence and the burden of proof like one would expect say, in a federal courtroom. Charles lost both cases.
What to do? File an appeal in the District Court and set them for trial. This action forced an actual lawyer to represent the City who moved ex parte to have the appeals stricken and called Charles, complaining about the appeals. Seems such things are never done in that neck of the woods. Charles informed the City Attorney that he was not going to settle for DUI convictions for his clients. Two weeks ago, Charles received a letter from the City Attorney offering a proposed J & S for these appeals that showed the trials had been done, a finding of not guilty to the DUI occurred, and a finding of guilt to Reckless Driving with no probation, etc. Both clients accepted. As for the license revocation administrative hearings, Charles tried both of them, winning the hearing on the client with the CDL and losing the other hearing, but securing the work permit.
Driver's License Checkpoints: About a year ago, a prior client was stopped at a "DL checkpoint" in south OKC. The client (wisely) hired Charles again. Charles won the District Court appeal of his license revocation. Judge Croy stopped just short of ruling the roadblock unconstitutional in his nine-page written opinion, but he did rule that the client's refusal was coerced and set aside the revocation of the license. What to do in the criminal case? Charles filed a motion to dismiss and to suppress the refusal in the criminal case based upon collateral estoppel/issue preclusion, using the Order and the transcript of the license appeal. Charles also filed an alternative motion to dismiss, arguing the unconstitutional seizure in the roadblock, based upon the evidence contained in this Driver's License Appeal transcript.
The criminal case ended up before Judge Glen Jones. The ADA (of course) did not respond in time and argued that he had not had sufficient time to respond to the motions. Judge Jones permitted briefing on these motions and gave the ADA time to file a Response Brief. our law firm drafted the Reply and argued the motions before Judge Jones the week before last. At the end of his verbal ruling which took close to an hour, Judge Jones (following much of our law firms arguments) granted the alternative motion to dismiss. The bottom line: license returned, criminal case dismissed, prosecutor livid.
The Fine Print: Also, two weeks ago, Charles appeared before Judge Gray in Oklahoma County representing a client charged with a second felony DUI. Charles noticed that the Second Page listed two previous felony DUI convictions dated May 30, 1996. Charles moved to dismiss the case because the client could NOT legally be convicted within 10 years of his previous conviction (this argument, based upon a careful reading of the statutes, has been highlighted in the pages of the OCDW thanks to Charles). The State, represented by the same ADA who was defeated in the DL checkpoint case above, wanted to brief the issue. Judge Gray announced that the State "was wrong on the law" and ruled that the case should only be filed as a misdemeanor. She then gave the State the opportunity to amend the existing case to a misdemeanor OR re-file as a misdemeanor. Charles objected and said that any amendment would still retain the felony case number(!) Judge Gray agreed and dismissed the case, telling the State that if it still wanted to pursue the case, it had to re-file it under a misdemeanor case number."
**A FOLLOW-UP NOTE TO THE "FINE PRINT" STORY ABOVE: A few days after Charles' success on this case, another lawyer who purports to be a "DUI Lawyer" in Oklahoma City "borrowed" Charles' argument - and it looked like even Charles' Motion and Brief out of our client's court file! - and used it in a case of his. In ALL fields, it appears, there are leaders and followers. In DUI Defense in Oklahoma, our office is the leader.
THE CONTINUED POWER OF REPUTATION TO BENEFIT OUR CLIENTS: MORE PROOF THAT WHO YOU HIRE CAN MAKE ALL THE DIFFERENCE
The lawyer who represents a person charged with DUI can make a TON of difference (see His Reputation Precedes Him below). More proof of that occurred in July, 2006 for one of our clients in a case in a southern county of Oklahoma. BW was charged with two counts: Felony DUI (a possible 5 year prison sentence) and Felony possession of Marijuana ("PMJ")(a possible 10 year prison sentence). The senior Mr. Sifers met with the Assistant District Attorney prior to the preliminary hearing on the case. This DA was not, by ANY MEANS, a "baby lawyer", but had been in private practice for many years previous to assuming the DA duties of that county. Mr. Sifers had never met him. After about 30 minutes of negotiation, the DA agreed to dismiss the PMJ. He offered to close the DUI part of this case, without a preliminary or a trial, with a one year deferred sentence and a fine and costs. This was the SHORTEST deferred sentence on a felony DUI that the senior Mr. Sifers could remember ever negotiating. As Mr. Sifers left, the DA said "it was finally good to meet you" since he had "read so many of (Mr. Sifers') articles on DUI cases over the years". Yes, who represents you can make a difference . . . . . . ..
KNOWING DUI LAW AND HAVING THE EXPERIENCE TO USE FOR THE CLIENT
Late in 2005, DS hired our office to represent him on a Felony DUI. Because of his record, the DA's office would not negotiate anything on this case but a conviction. A conviction of a felony would have destroyed DS's life . . . period. Although this case was NOT a good one to take to trial because of the facts of the case, we set the case into the trial procedure. We had no other choice. It is important to note here that a DUI can only be a felony IF the person has been convicted of a previous DUI in a court of record (a District Court or OKC's & Tulsa's Municipal courts). Further, the State must show documentary PROOF of that previous conviction at the preliminary hearing of the felony DUI. Most attorneys just stipulate that the fact of the prior conviction and do not make the DA prove it at preliminary hearing. We checked the records in Oklahoma City Municipal Court (where DS's prior DUI conviction had occurred) and discovered that these records for the time frame when this conviction occurred were incomplete and the DA could NOT obtain the appropriate documentation to prove his prior conviction. At the preliminary hearing, we refused to stipulate to the prior conviction. The DA was forced to dismiss the felony and amend the case to a misdemeanor. Although DS was convicted eventually of misdemeanor DUI, he was NOT convicted of a felony. The destruction of his life was avoided.
GETTING WHAT THE CLIENT NEEDS EVEN WHEN THE STATE DOES NOT WANT IT
Earlier in 2006, the DA in Oklahoma County would absolutely NOT negotiate our client's case to ANYTHING but a conviction with a suspended sentence. Our office had already won his driver's license back. If he proceeded with what the State wanted from him, he would be convicted and the license would then be revoked anyway. This was unacceptable. We set this mater for Jury Trial. On the day of trial, the State STILL would not come off the recommendation. The client decided to plead his case to the Judge, instead of a Jury Trial. Prior to giving the client a DEFERRED SENTENCE (which did NOT revoke his license OR convict him of DUI), the judge asked the client if he was SURE that was what he wanted, especially since he knew that Mr. Sifers (Charles) was "possibly the best at this" he had ever seen to do a DUI trial. We got want we needed for the client: no conviction and no loss of license, though that is NOT what the State wanted from this case.
MORE THAN 8,000 DRIVER'S LICENSES SAVED & RETURNED IN 2005!
In February, 2005, Mr. Sifers discovered an error made by the Board of Tests to the Rules governing breath test administration in the State of Oklahoma. (For more on this topic, click HERE.) He immediately used this discovery to assist in suppressing a breath test in a case the following day (See the case of "WJ" below under "The Timely Filing of Proper Motions"). This was the first time that this error was used to benefit any DUI offender by any attorney. Mr. Sifers shared his discovery of this error - and how to use it - to the entire Criminal Defense Bar (See The Guth 2100 Simulator: The Phoenix Raises from the Ashes, The Gauntlet, the Law Journal of the Oklahoma Criminal Defense Lawyers Association, Spring 2005 and The Continuing GUTH 2100 Saga, The Oklahoma Criminal Defense Weekly Newsletter, August 1, 2005). Attorneys all over Oklahoma began to make the same arguments and used this discovery to get THEIR clients' licenses returned AND/OR suppress the breath test in the criminal case. For the next several months, this caused a storm of problems to the prosecution of these cases unlike few have ever seen, even gaining national attention. (Click here for story). It resulted in class action lawsuits to be filed against the State. It resulted in the termination of the Director of the Board of Tests. Before the matter was finally settled by the Oklahoma Supreme Court in November, 2005, Mr. Sifers' discovery resulted in the return of more than 8,000 driver's licenses to persons arrested for DUI across the State of Oklahoma.
Although each of the cases was not handled by Mr. Sifers, these more that 8,000 persons enjoyed this result because of his discovery.
DUI WRECK WITH A DEATH: DEFERRED SENTENCE & NO LICENSE REVOCATION
R.R. and his wife went out for a few drinks one evening in 2005. While driving home in this rural, northern part of Oklahoma, R.R. lost control of his car and wrecked in a ditch. His wife died in the accident. As required by law, the officers had blood withdrawn from R.R. and the analysis returned with a result greater than .08% BAC. R.R. hired Sifers' office to represent him. The initial actions against R.R. by the State was to attempt to revoke his driver's license. By showing that the officer never placed R.R. under arrest (while unbelievable, is true), Mr. Sifers saved R.R.'s license at the DPS hearing. A request to submit to a chemical test under Oklahoma law must be preceded by a valid arrest. That did not occur here. The District Attorney was slow in filing charges against R.R. Mr. Sifers expected either a Manslaughter or, at least, a Negligent Homicide to be filed. The D.A. filed neither. He finally filed a simple misdemeanor DUI. Through negotiation (after Sifers pointed out that the blood test result was VERY unlikely to come into evidence for a variety of reasons), the case ended in a DEFERRED SENTENCE (dismissal of the case at the end of six (6) months), no fine, no community service, and the payment of court costs. R.R. did not even have to plead guilty. He pled "no contest".
IT IS A MATTER OF JURISDICTION . . .
D.E. has been arrested for DUI on three (3) separate occasions. On the second one, it was a felony. He hired Sifers' office and the result was a deferred sentence. He was never convicted. In 2005, he picked up his third DUI. It, too, was filed as a felony. This time the D.A. wanted him to go to jail. (No surprise). However, going to jail or even being convicted of the felony DUI, would cost D.E. his entire source of income as he is a totally disabled Viet Nam veteran. A tough assignment for Mr. Sifers.
This case involved two separate police departments. Investigation into the facts of the arrest AND the location of the officers involved showed that each of the officers were acting OUTSIDE of their jurisdictions when encountering D.E. Mr. Sifers used this defense in D.E.'s license hearing and prevailed. No Loss of license. The criminal case got all the way to Pre-Trial. Mr. Sifers showed the D.A. that, not only did he have a REAL jurisdictional problem with this case, but he ALSO could not enhance the DUI to a felony because the prior conviction was outside of the ten year enhancement window. The D.A. - a rare one who believes in strictly following the law whether it helps his case or destroys it, and one who Mr. Sifers has the highest respect - agreed with Mr. Sifers. The case was DISMISSED completely.
Although arrested twice for DUI since he met Mr. Sifers, D.E. has not lost his license or been convicted of DUI since he met Mr. Sifers.
A "SWEARING MATCH"
BETWEEN COP AND CLIENT: THE CLIENT WON
Faulty Breath Machine Maintenance
K.S., a preacher, was arrested for DUI in Oklahoma City and taken to the jail for a breath test. His reading was considerably over the legal limit of .10%. Because of his position, he did not want this matter taken to jury trial, so we negotiated the criminal charge to a reduction to a speeding ticket. The DPS revoked his license. We convinced him that he MUST fight them over this and we appealed the revocation of license. We were going to show that the test was inadmissible.
Driving on Private Property
R.R., an Oklahoma City truck driver, drank WAY too much and ended up in an area of Oklahoma City where there are several large houses on very large lots. Lost, he turned onto what he thought was a street, but was a family's driveway which proceeded about 1/8 of a mile to the house and then A ROUND the house into their back yard. He could not find his way back to the street. The owner of the home called the police about this car driving around in his large backyard. When they arrived, he was stopped just as he was about to drive back onto the street from this driveway. At the Implied Consent hearing (the driver's license revocation hearing), all of this was brought out and recorded under Oath. Since we showed that the officer NEVER saw him drive on a city street, but only private property, the license WAS NOT revoked! When the D.A. read our transcript of this hearing, she dismissed the DUI.Overcoming the Breath Test with Other Evidence
A nationally known American Indian style artist (JD) was arrested for DUI (his third) in Norman, OK by the Norman Police Department. A field test was done which the officer said JD failed. An Intoxilyzer 5000 test was taken with a result of greater than .10.%. The DPS ordered his license revoked for one year. Our firm requested an administrative hearing to contest the revocation.
JD had been at a show of his work at an art gallery all of the evening in question. He had been with several persons, including an ABLE (Alcoholic Beverage Licensing Enforcement) officer, a Probation Officer (who was in the car with him at the arrest), an Assistant District Attorney from Oklahoma City, and the ADA's (Assistant District Attorney) mother (a PhD in learning disorders) up to within five minutes of the stop by this police officer.
Each testified on his behalf at the hearing that he could not have drunk more than two glasses of wine the entire evening and appeared completely normal - and sober. The PhD further testified that she was aware that he suffered from dyslexia and that this problem would cause a person with it to perform poorly on these field tests.
Two opinion witnesses testified at this hearing. Ed Ondac, a pharmacist and expert on drug absorption and elimination, testified that, based upon the facts, JD could not have ANY MORE than .04% in his blood at ANY time that night.
After the longest administrative hearing on record (to that date) was finished, the DPS set aside the order and gave JD his license back.
The District Attorney in Cleveland County, after hearing about the above license trial, wanted NO part of this case. He dismissed it outright.Out of State Offenses Not Similar A client originally from Oregon was charged with a DUI involving a personal injury, a charge ordinarily a misdemeanor. Under Oklahoma Law, previous DUI convictions in other states CAN be used to enhance a misdemeanor DUI case to a felony. Seeking to prosecute him as a SECOND TIME felony (which carries up to seven (7) years), the D.A. filed the charge listing his three prior convictions of DUI in Oregon, one of which was a felony. The D.A. offered a plea bargain to our client of four (4) years in jail and three (3) years probation after he got out. However, Oklahoma requires that the other state's law be similar to Oklahoma's DUI statutes. Oregon's DUI law requires an alcohol level of .08% or higher. Oklahoma's law (at that time) required a .10% level or higher. After research on the states' laws and a call to fellow National College for DUI Defense lawyer in Oregon, we got ALL of the prior convictions DISMISSED from the case and it was re-filed as a misdemeanor. The case was then closed with a one (1) year suspended sentence and a small fine. This client DID NOT go to jail. His Reputation Precedes Him
M.M., a college student, after hitting a parked car and leaving the scene, was arrested in Weatherford and charged with DUI in the District Court in that county. This was FOURTH DUI in three years. It was, amazingly, filed only as a misdemeanor. At the license hearing, we were able to prove that the DPS DID NOT have sufficient evidence to revoke his license (the probable cause was extremely "thin") and won the license back for him. The assigned D.A., however, wanted our client to be convicted, do 20 days in the county jail, and pay a large fine. Mr. Sifers, who does not practice in that county as frequently as he does in other counties, had never met this particular D.A. In an effort to be professional and to introduce himself to this young D.A., Mr. Sifers met with him at his office. Fully NOT expecting this young man to agree with him, Mr. Sifers suggested that a deferred sentence (the case is dismissed at the end of probation) was the better way to close this case and avoid a trial for everyone. The D.A. quickly agreed with Mr. Sifers and the matter was closed with the deferred sentence. M.M. was NOT convicted of ANYTHING and DID NOT lose his license, either.
Prior to leaving the courthouse that day (but AFTER he had gotten the deal for his client!), Mr. Sifers went back by the D.A.'s office and expressed his surprise to this young D.A. of his acceptance of Mr. Sifers suggestion of a deferred sentence for M.M. When he asked him WHY he went along with it, the D.A.'s only response was, "I know who you are", turned and walked away.No Physical Control
J.J., a nursing student at Oklahoma University, was arrested for Actual Physical Control of motor vehicle while under the influence of alcohol, or APC. She was sitting on the bed of her truck when the officer approached and arrested her. We showed the prosecutor that she WAS NOT in control - nor COULD she have been - of the truck from the place that the officer found her, regardless of how drunk she was. This control issue is a critical element of this offense.The case was dismissed and her license was returned. Putting on the Pressure
R.C. had a rear-end accident with another car which contained two (2) women who worked for a church in northern Oklahoma. He had just left a restaurant where he, his mother, and his wife had shared a carafe of wine while eating salads. R.C. had placed all of this on his credit card and had the receipt to prove what was drunk at the restaurant. The officer claimed that he had a strong odor of alcohol on him, could not do the field tests, and, generally, described a very drunk person. The two women in the other car did not smell alcohol at all on him, AND saw NOTHING that suggested R.C. was drunk. The D.A. would not dismiss this case even in the face of this evidence. So, we set the case for trial. We secured an expert, Dr. Joe Citron, from Atlanta, to testify as to how much alcohol was likely in his system and the effects on R.C. of even this minor accident.
The D.A. first offered, as to avoid this trial, a "plea bargain" of a one (1) suspended sentence and a fine. This was turned down, out of hand. As we got closer to trial - AND after we filed numerous motions in the case - the "deal" went to a three (3) year deferred sentence (case dismissed at the end of the 3 years), fines, and other stuff to do. Again, we turned this down. Three (3) days before the hearing on these motions, Mr. Sifers received a call on his cell phone, after hours, from the D.A. He offered to reduce the charge to Driving While Impaired (a lesser offense than DUI), 6 months deferred, dismissal at the end of the 6 months and expungement from the records, no fine, and court costs with a no contest plea (no admission of wrong doing), if we would not make him fight this.
As of that date, no attorney with which Mr. Sifers had spoken had EVER heard of this D.A.'s office bending THAT MUCH to avoid trial with a defense attorney. The client decided to accept this offer with the blessing of both Mr. Sifers and Mr.Trichter.
ATTACKING STANDARDIZED FIELD SOBRIETY TESTS (SFST)
Earlier this year, DS was arrested for DUI and given a battery of field tests by the officer. He refused the breath test. After hiring Mr. Sifers' office, the appropriate pleadings were filed for a hearing and it was conducted in the case.
At the hearing, the officer testified as to DS's bad driving (speeding) as the reason for the stop. He testified that DS had an odor (not a strong odor) of alcohol on him, had slightly slurred speech, and "appeared to be intoxicated" to him. He, further, testified that DS "failed" all of the field sobriety tests that the officer had given him. Based upon ALL of this, he placed him under arrest for DUI and brought the charge against him. Sounded pretty solid, didn't it?
During cross examination, however, this changed. Mr. Sifers got the officer to admit that he had never heard DS speak before and he could not, honestly, state that the speech he heard from DS was not normal for him.
He admitted that, even based upon his training, odor ALONE was not enough to come to the conclusion the person was intoxicated. He went on to admit under cross that speeding is NOT one of the "Cues" of which officers are trained to associate with drunk drivers.
When Mr. Sifers finished with the officer, the officer was forced to agree with him that the client had actually PASSED the tests based upon the standards for scoring performance on them!
The result? The evidence NOW showed for that there was no reason for the officer to have arrested DS at all! Mr. Sifers' motion to dismiss the matter was granted.
ATTACKING ROAD BLOCKS WITH VIDEO TAPES
Another - and recent - instance where the use of a video tape of the arrest was occurred in the case of S.F. She was stopped in a roadblock by the Village Police and was taped while doing field tests. Luckily, the tape also had audio of the officer and S.F. S.F. did all requested tests properly. Incidentally, all requested tests were non-standardized tests. She sounded AND looked stone cold sober. After several requests by our office the District Attorney in charge of the case FINALLY agreed to view the video tape of the arrest. The video tape was also viewed by the head of the DUI division of the District Attorney's Office. After viewing a short portion of the tape, the DUI Division Head commented "I don't need to see anymore".
S.F.'s case was dismissed, without costs. She ALSO did not lose her driver's license because the Department of Public Safety ruled that the roadblock was ILLEGAL!
TIMING IN THE ARREST AND BREATH TEST
K.A., had been arrested for DUI and taken to the jail for a breath test. The results exceeded the legal limit. The DPS was going to revoke his license. Mr. Sifers requested a hearing with the DPS.
At the hearing, the officer testified that he arrested K.A. at a certain time and tested him almost exactly 45 minutes later. The officer had K.A. wait for 15 minutes before he gave him the test (the deprivation period), just like he was supposed to do. He gave the client the test in the proper manner. The test was within two hours of the arrest. Everything to which he testified was, for the State, almost perfect.
During cross examination, Mr. Sifers got the officer to testify that the location of the arrest was no less than 30 minutes from the jail. He got him to testify that he had waited to transport K.A. to the jail until the tow truck arrived to pick up K.A.'s truck.
The tow truck records showed it arrived about 15 minutes AFTER the officer arrested K.A. Therefore, K.A. COULD NOT have arrived at the jail until the time of the test. If that was true, the officer COULD NOT have given him the deprivation period before the test like he testified.
In short, without this deprivation period given to K.A. before the test, the test COULD NOT HAVE done in accordance with the rules governing these tests! The DPS did not revoke K.A.'s license.
The DA offered K.A. a deferred sentence (dismissed after the probation). K.A. did not lose his license OR get convicted of the DUI.
PUTTING THE BREATH MACHINE’S RECORDS TO WORK IN OUR FAVORS. A. was facing TWO (2) felony DUI cases that he had picked up within a few weeks of each other. He hired Mr. Sifers’ firm to represent him. The State’s case(s) against him were VERY strong, too. He was facing ten (10) years to do on EACH case. The D.A.’s office wanted him to go to jail for a very long time. S. A. had refused the breath test in each of these arrests. All negotiations resulted in failure. The matters were set for Jury Trial.
All breath machines in Oklahoma are computers. Mr. Sifers’ office has been obtaining - through open records act requests - ALL breath test records from ALL breath test machines from throughout the State of Oklahoma since early 1999. These records include not only the test results of persons that failed the tests, but also of those who passed the test. As a result, he has a database of hundreds of thousands of test records which is second to ONLY those records kept by the State, itself.
The younger Mr. Sifers ran the S.A.’s arresting officers through this database to see HOW MANY TIMES they had arrested someone for DUI or APC with similar descriptions of "drunkenness" as our client, and then tested those persons. He then ran an analysis of how many times these arrested persons PASSED these officers’ breath test(s). If the persons PASSED the test, these officers’ opinion(s) of just how drunk the person was - now matter HOW the officers described them - as proven WRONG by the State’s OWN "wiz-bang" machine. The officers in BOTH of these cases had had the persons that they had arrested PASS the tests at least 30% of the time!! In other words, the officers were WRONG in arresting these persons 3 out of every 10 times they had arrested them! Since each of those persons that these officers had arrested were described the same as OUR client, how can we know WHICH group - those which passed or those which failed - that he would have been in if he had taken the test? Certainly, the state could not prove that!
The D.A., when shown this evidence, were ready to negotiate. A "deal" was made that the client could take and that was SIGNIFICANTLY better than they had offered before AND that the jury would have given him. No trial was conducted.
In B.K.’s case, another client that Mr. Sifers’ office represented earlier in 2004, this technique WAS used in a jury trial in Beaver County District Court. The D.A. there would NOT negotiate, even in the face of similar records of HIS arresting officer. The trial took two (2) days. The result was that B.K. was found not guilty of DUI by the jury, and found only guilty of Driving While Impaired! The defense technique worked and worked well!
Mr. Sifers’ office now uses this defense technique in ALL refusal cases that he represents!
IS IT A CRIME WHERE THE OFFICER STOPPED YOU??The crime of DUI or APC can NOT be committed just anywhere in the state of Oklahoma. You must be located on a place where it is prohibited. Until recently, there were several locations that these crimes COULD NOT be committed: driveways, private roads, etc. The legislature DID broaden this some in the 2003-2004 legislative session. However, this question is STILL one that MUST be answered in defending these cases!
A couple of examples of how Mr. Sifers has used this technique for his clients are:
MOBILE HOME PARK STREETS ARE EXEMPT FROM DUI!G.F. was arrested by a officer while driving in a mobile home park. He was on probation for felony DUI at the time. This new case was ALSO a felony DUI. We obtained the records of the land where this event occurred and discovered that these streets were NOT city, county, OR state roads. They were all private streets or roads. The traffic statutes of the State - at that time - did NOT apply to private streets or roads. Of course, the D.A. would NOT believe this and prosecuted both the revocation of his probation and the NEW case as well. The judge overruled our motions to dismiss both matters.
After a bench trial and conviction of our client, we appealed to the Oklahoma Court of Criminal Appeals. The Court agreed with us and released our client within a week of the published decision. (See Fenimore v. State). The legislature - based upon this very case - changed the statutes the very next legislative term!
YOU CAN’T BE ARRESTED IN A WHEAT FIELD FOR DUI/APC
P.P. had drunk way too much and was attempting to drive home in a rural area of Oklahoma. He left the road (unintentionally) and ended up in a wheat field beside the country road and could not find his way back to the road. He turned off his car which was now parked in this wheat field and passed out. A highway patrolman happened by on his way home from his shift and saw this car in the field. He found PP and arrested him for Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol ("APC"). An Intoxilyzer 5000 test showed a .19% result. The was P.P. 13th DUI/APC arrest. It was filed as a Felony and the District Attorney wanted him to go to jail for five (5) years!
Our firm showed the DA's office that, under the case law, the crime of APC (or DUI) could not be committed in a wheat field. Although not wanting to, the DA agreed and dismissed the case against PP. The DPS did not agree and revoked his license. Our firm appealed the decision and the Oklahoma Court of Appeals agreed with us, publishing the decision. Consequently through our efforts, new law (see Post v. DPS) was made as to where these crimes can be committed and an arrest result therefrom.
Even with the legislature’s recently changes, this is STILL good law and a place where you can not commit the crime of DUI or APC!
USING VIDEO TAPE RECORDINGS OF THE ARREST OR TEST
AB was stopped by the Village Police Department and arrested for DUI, scoring greater than .10% on the 5000 test. The case was filed in Oklahoma County District Court as a misdemeanor DUI and his license was ordered revoked.
Our firm discovered that the officer had a video camera and recorder in this car at the time of the arrest, something that is NOT a usual event in this state. We obtained (though they did not want to release it) a copy of this tape from the police department. The tape showed that the alleged "failed" tests and the "drunk" the officer described did not occur. Further, the tape showed that the officer continued to transmit to the car via a remote microphone throughout the use of the 5000 machine in our client's test. The DPS refused to restore his license to him. We appealed to the District Court.
By using a little known and obscure Rule of the Board of Tests prohibiting a microphone within 25 feet of the machine during testing, we showed the Judge on appeal that the officer had failed to comply with the proper administration of the test. The court reversed the DPS and ordered our client's license restored.
A couple of years later, an Oklahoma City attorney (initials omitted) unfortunately was arrested by this SAME officer discussed above and hired Mr. Sifers to defend him. The video tapes showed a similar discrepancy in what was CLAIMED by the officer and what ACTUALLY occurred. Mr. Sifers saved this attorney’s license and the case was eventually dismissed.
G.G. was arrested by one of OKC PD's best known and most active DUI officers. She took a test and scored considerably higher than the legal limit. We obtained the video of the breath test being given to her by this officer. The officer testified that he had continuously observed her throughout the testing procedure (this is called the deprivation period and is required for a valid and admissible test) and that he had never left the room. The video of the breath test room showed him WALKING OUT of the room twice. The D.A. threw in the towel AND the DPS gave her back her license. Without the video tape of this test, neither would have occurred!
In almost EVERY case, now, there are video recordings of our clients of the arrest OR the breath test. Our office obtains these on our cases and uses them to show - in almost EVERY INSTANCE - that what the arresting officers claim occurred, did not.
ANOTHER EXAMPLE OF THE POWER OF MOTIONS
M.L., a client that Mr. Sifers had represented a few years ago for DUI, got a charge of Offering to Engage in an Act of Lewdness in the same court as the former DUI. He contacted our office to see if Mr. Sifers would represent him on this charge. Although our office does NOT ordinarily handle these charges, Mr. Sifers agreed to represent him since he had been a former DUI client. Since M.L. had been on probation in that court for the DUI, he could NOT go on probation again. Plus, the facts of the case were not great for us. Consequently, the prosecutor would only offer a conviction to the charge with a fine. A conviction of this charge would have cost ML his job of many years. Mr. Sifers set the matter on the Jury Trial Docket. He filed SEVERAL motions, including one with 45 separate requests for 45 separate orders prohibiting various prosecutorial actions or misconduct. A few days later, the prosecutor called Mr. Sifers. He did not return the call, but instead, showed up at her office. Was he serious, she wanted to know? Regrettably, yes. Mr. Sifers had been given no choice but to take the matter to trial. Within a few minutes of arrival to her office, she offered Mr. Sifers an unsupervised probation for M.L. (something unusual in that court) and a reduction of the charge to Disorderly Conduct with a small fine. This was actually a better "deal" than he would have been offered if he had NEVER been arrested before for ANY other crimes. M.L. took the "deal".
THE TIMELY FILING OF PROPER MOTIONS
And, that’s how we help our clients . . . .