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§47-11-902v3.
§47-11-902v3.
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 who:
1. Has a blood or breath alcohol concentration, as defined in Section
756 of this title, of ten-hundredths (0.10) 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. 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
4. 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. Every person who is convicted of a violation of the provisions of
this section shall be deemed guilty of a misdemeanor for the first
offense and shall be punished by imprisonment in jail for not less
than ten (10) days nor more than one (1) year, and a fine of not more
than One Thousand Dollars ($1,000.00). Any person who, within ten (10)
years after a previous conviction of a violation of this section or a
violation pursuant to the provisions of any law of another state
prohibiting the offense provided in subsection A of this section, is
convicted of a second offense pursuant to the provisions of this
section or has a prior conviction in a municipal criminal court of
record for the violation of a municipal ordinance prohibiting the
offense provided for in subsection A of this section and within ten
(10) years of such municipal conviction is convicted pursuant to the
provision of this section shall be deemed guilty of a felony and shall
be sentenced to 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). Any
person who is convicted of a second felony offense pursuant to the
provisions of this section shall be sentenced to the custody of the
Department of Corrections for not less than one (1) year and not to
exceed seven (7) years and a fine of not more than Five Thousand
Dollars ($5,000.00). Any person who is convicted of a third or
subsequent felony offense pursuant to the provisions of this section
shall be sentenced to 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).
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 ten-hundredths (0.10).
In any case in which a defendant is charged with a second or
subsequent 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
filed with the district court of the county within which the
municipality is located.
D. When a person is sentenced to 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.
E. In the event a felony conviction does not result in the person
being sentenced to the custody of the Department of Corrections, the
person shall be required to serve not less than ten (10) days of
community service, or to undergo inpatient rehabilitation or treatment
in a public or private facility with at least minimum security for a
period of not less than forty-eight (48) consecutive hours,
notwithstanding the provisions of Sections 991a, 991a-2 and 996.3 of
Title 22 of the Oklahoma Statutes.
F. The Department of Mental Health and Substance Abuse Services and
the Department of Corrections may certify to the Department of Public
Safety that a person has successfully completed a treatment program
and is successfully complying with any follow-up treatment required by
the Department of Corrections. In such case, the person shall be given
credit therefor as fulfillment of all provisions of Section 3-453 of
Title 43A of the Oklahoma Statutes and shall be permitted to apply for
reinstatement of any suspension, revocation, cancellation or denial
order withdrawing a privilege to drive.
G. The Department of Public Safety is hereby authorized to reinstate
any suspended or revoked license when the applicant meets the
statutory requirements which affect the existing driving privilege.
H. Except as provided in subsection J of this section, any person who
is found guilty of a violation of the provisions of this section shall
be ordered to participate in, prior to sentencing, an alcohol and drug
substance abuse evaluation program offered by a facility or qualified
practitioner certified by the Department of Mental Health and
Substance Abuse Services for the purpose of evaluating the receptivity
to treatment and prognosis of the person. The court shall order the
person to reimburse the facility or qualified practitioner for the
evaluation. The Department of Mental Health and Substance Abuse
Services shall establish a fee schedule, based upon a person's ability
to pay, provided the fee for an evaluation shall not exceed
Seventy-five Dollars ($75.00). The evaluation shall be conducted at a
certified facility, the office of a qualified practitioner or at
another location as ordered by the court. The facility or qualified
practitioner shall, within seventy-two (72) hours from the time the
person is assessed, submit a written report to the court for the
purpose of assisting the court in its final sentencing determination.
If such report indicates that the evaluation shows that the defendant
would benefit from a treatment program, the court shall, as a
condition of any sentence imposed, including deferred and suspended
sentences, require the person to participate in an alcohol and drug
substance abuse treatment program at an approved treatment facility as
defined by Section 3-403 of Title 43A of the Oklahoma Statutes. No
person, agency or facility operating an alcohol and drug substance
abuse evaluation program certified by the Department of Mental Health
and Substance Abuse Services shall solicit or refer any person
evaluated pursuant to this section for any treatment program or
alcohol and drug 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 alcohol
and drug substance abuse service offered by such person, agency or
facility. If a person is sentenced to 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 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 required by this subsection. As used in this
subsection, "qualified practitioner" means a person with at least a
bachelor's degree in substance abuse treatment, mental health or a
related health care field and at least two (2) years' experience in
providing alcohol treatment, other drug abuse treatment, or both
alcohol and other drug abuse treatment who is certified each year by
the Department of Mental Health and Substance Abuse Services to
provide these assessments. 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 may be required by the court to attend a victims impact
panel program, if such a program is offered in the county where the
judgment is rendered, and to pay a fee, not less than Fifteen Dollars
($15.00) nor more than Twenty-five Dollars ($25.00) 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, who receives a suspended sentence and who
does not already have an ignition interlock device installed pursuant
to Section 754.1 of this title, shall as a condition of that suspended
sentence be required to have installed an ignition interlock device
approved by the Department of Public Safety at the person's own
expense for a period of not less than six (6) months nor more than
three (3) years. The ignition interlock device shall be placed on the
motor vehicle owned by the defendant or on the vehicle most regularly
operated by the defendant. The person shall pay the monthly
maintenance fee for the ignition interlock device as a condition of
the suspended sentence. The installation of an ignition interlock
device, as required by this subsection, shall not be construed to
authorize the person to drive unless the person is otherwise eligible
to drive.
K. Any person who, within ten (10) years after a previous conviction
of a violation of this section or a violation pursuant to the
provisions of law of another state prohibiting the offense provided in
subsection A of this section or a violation of a municipal ordinance
prohibiting the offense provided in subsection A of this section,
pleads guilty or nolo contendere or is convicted of a violation of
this section shall not be required to undergo the alcohol and drug
substance evaluation program required by subsection H of this section.
The court shall, as a condition of any sentence imposed, including
deferred and suspended sentences, require the person to participate in
an alcohol and drug substance abuse treatment program pursuant to
Section 3-452 of Title 43A of the Oklahoma Statutes.
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