Okla. Stat. tit. 47, § 47-11-902v1

intoxicating substance or combination thereof — Penalty —

Enhancement.

A. It is unlawful and punishable as provided in this section

for any person to drive, operate, or be in actual physical control

of a motor vehicle within this state, whether upon public roads,

highways, streets, turnpikes, other public places or upon any

private road, street, alley or lane which provides access to one or

more single or multi-family dwellings, who:

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1. Has a blood or breath alcohol concentration, as defined in

Section 756 of this title, of eight-hundredths (0.08) or more at the

time of a test of such person's blood or breath administered within

two (2) hours after the arrest of such person;

2. Is under the influence of alcohol;

3. Has any amount of a Schedule I chemical or controlled

substance, as defined in Section 2-204 of Title 63 of the Oklahoma

Statutes, or one of its metabolites or analogs in the person's

blood, saliva, urine or any other bodily fluid at the time of a test

of such person's blood, saliva, urine or any other bodily fluid

administered within two (2) hours after the arrest of such person;

4. Is under the influence of any intoxicating substance other

than alcohol which may render such person incapable of safely

driving or operating a motor vehicle. The timing requirement for

the administration of tests pursuant to Section 756 of this title

shall not apply to this paragraph; or

5. Is under the combined influence of alcohol and any other

intoxicating substance which may render such person incapable of

safely driving or operating a motor vehicle. The timing requirement

for the administration of tests pursuant to Section 756 of this

title shall not apply to this paragraph.

B. The fact that any person charged with a violation of this

section is or has been lawfully entitled to use alcohol or a

controlled dangerous substance or any other intoxicating substance

shall not constitute a defense against any charge of violating this

section.

C. 1. Any person who is convicted of a violation of the

provisions of this section shall be guilty of a misdemeanor for the

first offense and shall:

a. participate in an assessment and evaluation pursuant

to subsection G of this section and shall follow all

recommendations made in the assessment and evaluation,

b. be punished by imprisonment in jail for not less than

ten (10) days nor more than one (1) year, and

c. be fined not more than One Thousand Dollars

($1,000.00).

2. Any person who, having been convicted of or having received

deferred judgment for a violation of this section or a violation

pursuant to the provisions of any law of this state or another state

prohibiting the offenses provided in this section, Section 11-904 of

this title or paragraph 4 of subsection A of Section 852.1 of Title

21 of the Oklahoma Statutes, or having a prior conviction in a

municipal criminal court of record for the violation of a municipal

ordinance prohibiting the offense provided for in this section

commits a subsequent violation of this section within ten (10) years

of the date following the completion of the execution of said

sentence or deferred judgment shall, upon conviction, be guilty of a

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felony and shall participate in an assessment and evaluation

pursuant to subsection G of this section and shall be sentenced to:

a. follow all recommendations made in the assessment and

evaluation for treatment at the defendant's expense,

or

b. placement in the custody of the Department of

Corrections for not less than one (1) year and not to

exceed five (5) years and a fine of not more than Two

Thousand Five Hundred Dollars ($2,500.00), or

c. treatment, imprisonment and a fine within the

limitations prescribed in subparagraphs a and b of

this paragraph.

However, if the treatment in subsection G of this section does
pense,

or

b. placement in the custody of the Department of

Corrections for not less than one (1) year and not to

exceed five (5) years and a fine of not more than Two

Thousand Five Hundred Dollars ($2,500.00), or

c. treatment, imprisonment and a fine within the

limitations prescribed in subparagraphs a and b of

this paragraph.

However, if the treatment in subsection G of this section does

not include residential or inpatient treatment for a period of not

less than five (5) days, the person shall serve a term of

imprisonment of at least five (5) days.

3. Any person who commits a violation of this section after

having been convicted of a felony offense pursuant to the provisions

of this section or a violation pursuant to the provisions of any law

of this state or another state prohibiting the offenses provided for

in this section, Section 11-904 of this title or paragraph 4 of

subsection A of Section 852.1 of Title 21 of the Oklahoma Statutes

shall be guilty of a felony and participate in an assessment and

evaluation pursuant to subsection G of this section and shall be

sentenced to:

a. follow all recommendations made in the assessment and

evaluation for treatment at the defendant's expense,

two hundred forty (240) hours of community service and

use of an ignition interlock device, as provided by

subparagraph n of paragraph 1 of subsection A of

Section 991a of Title 22 of the Oklahoma Statutes, or

b. placement in the custody of the Department of

Corrections for not less than one (1) year and not to

exceed ten (10) years and a fine of not more than Five

Thousand Dollars ($5,000.00), or

c. treatment, imprisonment and a fine within the

limitations prescribed in subparagraphs a and b of

this paragraph.

However, if the treatment in subsection G of this section does

not include residential or inpatient treatment for a period of not

less than ten (10) days, the person shall serve a term of

imprisonment of at least ten (10) days.

4. Any person who commits a violation of this section after

having been twice convicted of a felony offense pursuant to the

provisions of this section or a violation pursuant to the provisions

of any law of this state or another state prohibiting the offenses

provided for in this section, Section 11-904 of this title or

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paragraph 4 of subsection A of Section 852.1 of Title 21 of the

Oklahoma Statutes shall be guilty of a felony and participate in an

assessment and evaluation pursuant to subsection G of this section

and shall be sentenced to:

a. follow all recommendations made in the assessment and

evaluation for treatment at the defendant's expense,

followed by not less than one (1) year of supervision

and periodic testing at the defendant's expense, four

hundred eighty (480) hours of community service, and

use of an ignition interlock device, as provided by

subparagraph n of paragraph 1 of subsection A of

Section 991a of Title 22 of the Oklahoma Statutes, for

a minimum of thirty (30) days, or

b. placement in the custody of the Department of

Corrections for not less than one (1) year and not to

exceed twenty (20) years and a fine of not more than

Five Thousand Dollars ($5,000.00), or

c. treatment, imprisonment and a fine within the

limitations prescribed in subparagraphs a and b of

this paragraph.

However, if the person does not undergo residential or inpatient

treatment pursuant to subsection G of this section the person shall

serve a term of imprisonment of at least ten (10) days.

5. Any person who, after a previous conviction of a violation

of murder in the second degree or manslaughter in the first degree

in which the death was caused as a result of driving under the

influence of alcohol or other intoxicating substance, is convicted

of a violation of this section shall be guilty of a felony and shall

be punished by imprisonment in the custody of the Department of
s.

5. Any person who, after a previous conviction of a violation

of murder in the second degree or manslaughter in the first degree

in which the death was caused as a result of driving under the

influence of alcohol or other intoxicating substance, is convicted

of a violation of this section shall be guilty of a felony and shall

be punished by imprisonment in the custody of the Department of

Corrections for not less than five (5) years and not to exceed

twenty (20) years, and a fine of not more than Ten Thousand Dollars

($10,000.00).

6. Provided, however, a conviction from another state shall not

be used to enhance punishment pursuant to the provisions of this

subsection if that conviction is based on a blood or breath alcohol

concentration of less than eight-hundredths (0.08).

7. In any case in which a defendant is charged with driving

under the influence of alcohol or other intoxicating substance

offense within any municipality with a municipal court other than a

court of record, the charge shall be presented to the county's

district attorney and filed with the district court of the county

within which the municipality is located.

D. Any person who is convicted of a violation of driving under

the influence with a blood or breath alcohol concentration of

fifteen-hundredths (0.15) or more pursuant to this section shall be

deemed guilty of aggravated driving under the influence. A person

convicted of aggravated driving under the influence shall

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participate in an assessment and evaluation pursuant to subsection G

of this section and shall comply with all recommendations for

treatment. Such person shall be sentenced as provided in paragraph

1, 2, 3, 4 or 5 of subsection C of this section and to:

1. Not less than one (1) year of supervision and periodic

testing at the defendant's expense; and

2. An ignition interlock device or devices, as provided by

subparagraph n of paragraph 1 of subsection A of Section 991a of

Title 22 of the Oklahoma Statutes, for a minimum of ninety (90)

days.

E. When a person is sentenced to imprisonment in the custody of

the Department of Corrections, the person shall be processed through

the Lexington Assessment and Reception Center or at a place

determined by the Director of the Department of Corrections. The

Department of Corrections shall classify and assign the person to

one or more of the following:

1. The Department of Mental Health and Substance Abuse Services

pursuant to paragraph 1 of subsection A of Section 612 of Title 57

of the Oklahoma Statutes; or

2. A correctional facility operated by the Department of

Corrections with assignment to substance abuse treatment.

Successful completion of a Department-of-Corrections-approved

substance abuse treatment program shall satisfy the recommendation

for a ten-hour or twenty-four-hour alcohol and drug substance abuse

course or treatment program or both. Successful completion of an

approved Department of Corrections substance abuse treatment program

may precede or follow the required assessment.

F. The Department of Public Safety is hereby authorized to

reinstate any suspended or revoked driving privilege when the person

meets the statutory requirements which affect the existing driving

privilege.

G. Any person who is found guilty of a violation of the

provisions of this section shall be ordered to participate in an

alcohol and drug substance abuse evaluation and assessment program

offered by a certified assessment agency or certified assessor for

the purpose of evaluating and assessing the receptivity to treatment

and prognosis of the person and shall follow all recommendations

made in the assessment and evaluation for treatment. The court

shall order the person to reimburse the agency or assessor for the

evaluation and assessment. Payment shall be remitted by the

defendant or on behalf of the defendant by any third party;
sessor for

the purpose of evaluating and assessing the receptivity to treatment

and prognosis of the person and shall follow all recommendations

made in the assessment and evaluation for treatment. The court

shall order the person to reimburse the agency or assessor for the

evaluation and assessment. Payment shall be remitted by the

defendant or on behalf of the defendant by any third party;

provided, no state-appropriated funds are utilized. The fee for an

evaluation and assessment shall be the amount provided in subsection

C of Section 3-460 of Title 43A of the Oklahoma Statutes. The

evaluation and assessment shall be conducted at a certified

assessment agency, the office of a certified assessor or at another

location as ordered by the court. The agency or assessor shall,

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within seventy-two (72) hours from the time the person is evaluated

and assessed, submit a written report to the court for the purpose

of assisting the court in its sentencing determination. The court

shall, as a condition of any sentence imposed, including deferred

and suspended sentences, require the person to participate in and

successfully complete all recommendations from the evaluation, such

as an alcohol and substance abuse treatment program pursuant to

Section 3-452 of Title 43A of the Oklahoma Statutes. If such report

indicates that the evaluation and assessment shows that the

defendant would benefit from a ten-hour or twenty-four-hour alcohol

and drug substance abuse course or a treatment program or both, the

court shall, as a condition of any sentence imposed, including

deferred and suspended sentences, require the person to follow all

recommendations identified by the evaluation and assessment and

ordered by the court. No person, agency or facility operating an

evaluation and assessment program certified by the Department of

Mental Health and Substance Abuse Services shall solicit or refer

any person evaluated and assessed pursuant to this section for any

treatment program or substance abuse service in which such person,

agency or facility has a vested interest; however, this provision

shall not be construed to prohibit the court from ordering

participation in or any person from voluntarily utilizing a

treatment program or substance abuse service offered by such person,

agency or facility. If a person is sentenced to imprisonment in the

custody of the Department of Corrections and the court has received

a written evaluation report pursuant to the provisions of this

subsection, the report shall be furnished to the Department of

Corrections with the judgment and sentence. Any evaluation and

assessment report submitted to the court pursuant to the provisions

of this subsection shall be handled in a manner which will keep such

report confidential from the general public's review. Nothing

contained in this subsection shall be construed to prohibit the

court from ordering judgment and sentence in the event the defendant

fails or refuses to comply with an order of the court to obtain the

evaluation and assessment required by this subsection. If the

defendant fails or refuses to comply with an order of the court to

obtain the evaluation and assessment, the Department of Public

Safety shall not reinstate driving privileges until the defendant

has complied in full with such order. Nothing contained in this

subsection shall be construed to prohibit the court from ordering

judgment and sentence and any other sanction authorized by law for

failure or refusal to comply with an order of the court.

H. Any person who is found guilty of a violation of the

provisions of this section shall be required by the court to attend

a victims impact panel program, as defined in subsection H of

Section 991a of Title 22 of the Oklahoma Statutes, if such a program

is offered in the county where the judgment is rendered, and to pay
zed by law for

failure or refusal to comply with an order of the court.

H. Any person who is found guilty of a violation of the

provisions of this section shall be required by the court to attend

a victims impact panel program, as defined in subsection H of

Section 991a of Title 22 of the Oklahoma Statutes, if such a program

is offered in the county where the judgment is rendered, and to pay

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a fee of Seventy-five Dollars ($75.00), as set by the governing

authority of the program and approved by the court, to the program

to offset the cost of participation by the defendant, if in the

opinion of the court the defendant has the ability to pay such fee.

I. Any person who is found guilty of a felony violation of the

provisions of this section shall be required to submit to electronic

monitoring as authorized and defined by Section 991a of Title 22 of

the Oklahoma Statutes.

J. Any person who is found guilty of a violation of the

provisions of this section who has been sentenced by the court to

perform any type of community service shall not be permitted to pay

a fine in lieu of performing the community service.

K. When a person is found guilty of a violation of the

provisions of this section, the court shall order, in addition to

any other penalty, the defendant to pay a one-hundred-dollar

assessment to be deposited in the Drug Abuse Education and Treatment

Revolving Fund created in Section 2-503.2 of Title 63 of the

Oklahoma Statutes, upon collection.

L. 1. When a person is eighteen (18) years of age or older,

and is the driver, operator, or person in physical control of a

vehicle, and is convicted of violating any provision of this section

while transporting or having in the motor vehicle any child less

than eighteen (18) years of age, the fine shall be enhanced to

double the amount of the fine imposed for the underlying driving

under the influence (DUI) violation which shall be in addition to

any other penalties allowed by this section.

2. Nothing in this subsection shall prohibit the prosecution of

a person pursuant to Section 852.1 of Title 21 of the Oklahoma

Statutes who is in violation of any provision of this section or

Section 11-904 of this title.

M. Any plea of guilty, nolo contendere or finding of guilt for

a violation of this section or a violation pursuant to the

provisions of any law of this state or another state prohibiting the

offenses provided for in this section, Section 11-904 of this title,

or paragraph 4 of subsection A of Section 852.1 of Title 21 of the

Oklahoma Statutes, shall constitute a conviction of the offense for

the purpose of this section; provided, any deferred judgment shall

only be considered to constitute a conviction for a period of ten

(10) years following the completion of any court-imposed

probationary term.

N. If qualified by knowledge, skill, experience, training or

education, a witness shall be allowed to testify in the form of an

opinion or otherwise solely on the issue of impairment, but not on

the issue of specific alcohol concentration level, relating to the

following:

1. The results of any standardized field sobriety test

including, but not limited to, the horizontal gaze nystagmus (HGN)

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test administered by a person who has completed training in

standardized field sobriety testing; or

2. Whether a person was under the influence of one or more

impairing substances and the category of such impairing substance or

substances. A witness who has received training and holds a current

certification as a drug recognition expert shall be qualified to

give the testimony in any case in which such testimony may be

relevant.