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The defendant was tried in a nonjury trial and convicted of aggravated DUI after former conviction of a felony, and failure to yield at an intersection. The judge sentenced him to five years suspended in a similar fine, plus a $10 fine for the second count. On appeal, he raised two issues. First issue, was whether the present driving of inference of alcohol aggravated offense is a felony. The second issue was whether Oklahoma had legal authority that a subsequent offense of driving under the influence of alcohol, committed more than 10 years after the sentence imposed on the previous offense has been completed, can be treated as a felony. Tulsa criminal defense attorney Stephen Cale said that the Oklahoma Court of Criminal Appeals found that the sentence should be modified.
Here on the facts. In November, the defendant was stopped in Tulsa by a sheriff’s deputy who said that he saw the defendant hit a curb with the car three times and run stop sign. The defense smelled strongly of alcohol, had slurred speech, had bloodshot and watery eyes, and had difficulty standing. The defendant admitted to being drunk and failed several field sobriety test. She agreed to take a breath test. The results of that test showed a 0.22 blood alcohol content. That is fifteen one hundreds over the legal limit.
The defendant was later charged and convicted of felony aggravated driving under the influence after a prior DUI. Should been previously convicted of felony DUI just little over five years before and sentenced to two years imprisonment. Prior to the trial, in this case, she filed a motion to dismiss arguing that she should be convicted only of misdemeanor DUI in this case because her prior felony DUI conviction was committed and the resulting sentence completed more than 10 years to for the crime in this case was committed. The trial court denied her motion finding that once a person achieved a felony status, the 10 year rule does not apply.
The defendant argued on appeal that the trial court’s ruling was it error and that under certain statute her conviction for DUI in this case should be a misdemeanor, not a felony. Statute at issue provides that a person convicted of driving under the influence shall be guilty of a misdemeanor for the first offense. Section further provides that if, during the period of court imposed probation or within 10 years of the date following the completion of the execution of a sentence or deferred judgment for violation of this section, a person commits a second offense, that person shall be guilty of a felony upon conviction. That part of the statute also addresses punishment provisions for those convicted of the second or third or subsequent felony offense. The aggravated driving under the influence statute is lengthy but provides in part that any person who is convicted of a violation of driving under the influence with the blood or breath alcohol concentration of 15 100s or more pursuant to this section shall be deemed guilty of aggravated driving under the influence.. It also provides a person convicted pursuant to the provisions of this subsection shall be guilty of a misdemeanor for the first offense.
A primary role of statutory construction is the rule of lenity. Requires the appellate court construed statutes strictly against the state and liberally in favor of the accused. Words not found in the text of a criminal statute will not be read into it for the purpose of extending it or giving it an interpretation in conformity with the supposed policy. In other words, the statute will not be enlarged by implication or in the on the fair meaning of the language used, or what their terms reasonably justified, and will not be held include offenses and persons other than those that are clearly described and provided for.
Tulsa criminal defense attorney Stephen Cale said that it is not the place of the Oklahoma Court of Criminal Appeals to interpret the statute to address a matter that the legislature chose not to address, even if the court thinks that that interpretation might produce a reasonable result. The purpose of stress instruction is not to reward those who commit acts which should be punishable. Instead comments to ensure that when liberty is at stake, all citizens have fair and clear warning of what conduct is prohibited, and equally important, the severity of punishment for any infraction.
In a 1996 case, the appellate court addressed an issue similar to the one in this case. The defendant in the 1991 case is charged with and convicted of DUI second and subsequent offense. His progress was for felony DUI. Felony DUI at issue more than 10 years after his first felony DUI conviction. The defendant there argued that because his conviction on the first felony DUI had occurred more than 10 years before he committed the second DUI, the time constraints of the statute at issue required that his second felony DUI be modified to a misdemeanor DUI. The appellate court agreed that 1991 case was on point. Nothing in the plain language of the statute at issue supports an interpretation that once a person is we convicted of a felony he cannot later be convicted of a misdemeanor DUI if his next offense occurs more than 10 years after the completion of his sentence for the prior DUI. As a consequence court modified the charge to misdemeanor aggravated driving under the influence. It also modified the sentenced to one year in the county jail suspended.
Tulsa criminal defense attorney Stephen Cale handles criminal appeals. He is an experienced and awarded writer. He has had some cases on appeal reversed or sent back to the trial court for further hearing. Call the Cale law office at 918-277-4800.