Okla. Stat. tit. 47, § 47-11-902v3

intoxicating substance or combination thereof — Penalty —

Enhancement.

A. It is unlawful and punishable as provided for 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:

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;

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

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test of such person’s blood, saliva, urine, or any other bodily

fluid;

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; 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.

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 H 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 such

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

felony and shall participate in an assessment and evaluation

pursuant to subsection H 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,

b. 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,

c. imprisonment in the custody of the Department of

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

more than five (5) years, and

d. a fine not more than Two Thousand Five Hundred Dollars

($2,500.00).

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However, if the treatment in subsection H 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
bsection H 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 H 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,

b. two hundred forty (240) hours of community service,

c. 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,

d. imprisonment in the custody of the Department of

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

more than ten (10) years, and

e. a fine not more than Five Thousand Dollars

($5,000.00).

However, if the treatment in subsection H 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

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 H 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, as provided in subparagraph q of

paragraph 1 of subsection A of Section 991a of Title

22 of the Oklahoma Statutes, at the defendant’s

expense,

b. four hundred eighty (480) hours of community service,

c. use of an ignition interlock device, as provided by

subparagraph n of paragraph 1 of subsection A of

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

a minimum of ninety (90) days,

d. imprisonment in the custody of the Department of

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

more than twenty (20) years, and

e. a fine not more than Five Thousand Dollars

($5,000.00).

However, if the person does not undergo residential or inpatient

treatment pursuant to subsection H 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

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

twenty (20) years, and a fine 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
xceed

twenty (20) years, and a fine 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 while also committing one of more of the following

acts:

1. Driving, operating, or being in actual physical control of a

motor vehicle while having a blood or breath alcohol concentration

of fifteen-hundredths (0.15) or more at the time of a test of such

person’s blood or breath;

2. Causing a motor vehicle incident involving one or more

vehicles that results in a report pursuant to Section 40-102 of this

title;

3. Driving in a manner that violates the provisions of Section

11-301, 11-302, 11-306, 11-309, or 11-311 of this title;

4. Driving while eluding peace officers pursuant to Section

540a of Title 21 of the Oklahoma Statutes;

5. Driving with a speed in excess of twenty (20) miles per hour

over the speed limit or ten (10) miles per hour over the speed limit

within an active school zone;

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6. Operating a motor vehicle with a passenger younger than

eighteen (18) years of age; or

7. Reckless driving as defined in Section 11-901 of this title,

shall, upon conviction, be guilty of aggravated driving under the

influence, which shall be a felony offense.

E. A person convicted of aggravated driving under the influence

shall participate in an assessment and evaluation pursuant to

subsection H 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. Imprisonment as provided in paragraph 1, 2, 3, 4, or 5 of

subsection C of this section, provided that:

a. for a first offense of a violation pursuant to this

section, the first ten (10) days of the sentence shall

not be subject to probation, suspension, or deferral

and may be served by night or weekend incarceration

pursuant to Section 991a of Title 22 of the Oklahoma

Statutes,

b. for a second offense of a violation pursuant to this

section, the first thirty (30) days of the sentence

shall not be subject to probation, suspension, or

deferral; provided further, this mandatory minimum

period of confinement shall be served in the county

jail as a condition of a suspended or deferred

sentence, pursuant to Section 991a of Title 22 of the

Oklahoma Statutes, and

c. the portion of the sentence not subject to probation,

suspension, or deferral shall increase by thirty (30)

days for each subsequent conviction after the second

offense;

2. A fine pursuant to paragraph 1, 2, 3, 4, or 5 of subsection

C of this section;

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

testing, as provided in subparagraph q of paragraph 1 of subsection

A of Section 991a of Title 22 of the Oklahoma Statutes, at the

defendant’s expense; and

4. 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 one hundred

eighty (180) days.

F. 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
h n of paragraph 1 of subsection A of Section 991a of

Title 22 of the Oklahoma Statutes, for a minimum of one hundred

eighty (180) days.

F. 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:

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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.

G. Service Oklahoma is hereby authorized to reinstate any

suspended or revoked driving privilege when the person meets the

statutory requirements which affect the existing driving privilege.

H. 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, 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, 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

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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
any person evaluated

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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, Service Oklahoma 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.

I. 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

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.

J. 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.

K. 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.

L. 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 an assessment of One Hundred

Dollars ($100.00) to be deposited in the Drug Abuse Education and

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

the Oklahoma Statutes, upon collection.

M. 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.

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

N. 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.

O. 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)

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.