Tulsa Aggravated DUI Lawyer

The Exact Aggravator Is One of the First Things I Look At

When I review an aggravated DUI case, one of the first things I want to know is exactly what the State is relying on to make the DUI aggravated. A .15 breath test presents a very different case from an aggravated DUI based on an alleged traffic violation, reckless driving, excessive speed, a collision, or eluding police.

That becomes especially important when the aggravator is one of the traffic offenses listed in Oklahoma's aggravated DUI law. In a first-offense case, a disputed traffic aggravator may also affect negotiations. Depending on the traffic offense alleged and the evidence supporting it, there may be room to negotiate the felony aggravated DUI down to a misdemeanor DUI even when the underlying DUI itself remains difficult to contest.

Seven Ways a DUI Becomes Aggravated

Oklahoma law identifies seven circumstances that make a DUI aggravated:

• A blood or breath alcohol concentration of .15 or higher.
• Causing a motor vehicle incident that is reportable under Oklahoma law.
• Committing certain specified roadway, passing, lane, or divided highway violations while driving.
• Eluding a peace officer while driving.
• Driving more than twenty miles per hour over the speed limit, or more than ten miles per hour over the limit in an active school zone.
• Operating a vehicle with a passenger younger than eighteen.
• Committing reckless driving while also committing DUI.

Only one of those circumstances is necessary. A DUI becomes aggravated if the State proves the underlying DUI and one qualifying aggravating act.

A .15 or Higher Test Makes the DUI Aggravated

The .15 provision is probably the easiest aggravating factor to understand. If the State proves DUI and has a qualifying blood or breath alcohol concentration of .15 or higher, the case falls within aggravated DUI even if there was no crash, excessive speed, reckless driving, or child passenger.

That makes the chemical test particularly important. A properly admitted .15 or higher breath or blood result is powerful evidence not only of the underlying alcohol DUI but also of the fact that changes the case from an ordinary first DUI into a felony.

The .15 provision also applies to actual physical control. Someone does not necessarily avoid aggravated DUI merely because police found the person in a parked vehicle rather than seeing the vehicle being driven.

A Tulsa Aggravated DUI Case Involving a .41 BAC

I represented a client in Tulsa County who was pulled over for only driving 10 MPH through an intersection. An officer on the opposite side of the intersection observed my client driving and subsequently pulled him over. The officer quickly determined that my client was too intoxicated to perform the standardized field sobriety tests and arrested him for DUI.

This was his third DUI arrest within five years. When he was booked into the jail, he agreed to take the State's breath test, which reported a blood alcohol concentration of .41.

In all my years of practice, I had never encountered a BAC that high. There was no realistic way to look at that test result and pretend the alcohol evidence was a minor problem in the case.

The State's initial offer was five years in prison. During lengthy negotiations, I focused heavily on the fact that my client had never received meaningful substance-abuse treatment despite his repeated alcohol related arrests.

The State eventually agreed to allow him into the Tulsa DUI Court program instead of sending him to prison. The conditions were demanding. He was prohibited from driving for the first six months, and once he was permitted to drive again he had to install an ignition interlock device in his vehicle.

He also had to attend Alcoholics Anonymous meetings every week and provide proof of his attendance. The agreement included a serious consequence if he failed to complete or withdrew from the DUI Court program: he would have to serve five years in prison.

My client accepted those conditions and entered the program. He successfully completed DUI Court in twenty months, and after graduation his case was dismissed and later expunged from his record.

That result was specific to that client, his history, his willingness to participate in treatment, the negotiations in that case, and the agreement reached with the State. It does not mean that someone facing aggravated DUI, particularly with an extremely high alcohol concentration or multiple prior DUI cases, should expect DUI Court or dismissal instead of prison.

A Reportable Crash Does Not Require Serious Injury

A DUI can also become aggravated when the person causes a reportable motor vehicle accident. The crash does not have to involve a serious injury. A reportable accident can involve injury or death, but it can also involve enough property damage to trigger Oklahoma's accident reporting requirements. So a DUI can be charged as aggravated even when no one was hurt.

This makes the collision evidence important for more than determining fault or restitution. The State may be relying on the accident itself as the fact that changes what would otherwise be an ordinary DUI into a felony.

Rob examines the accident report, photographs, video, witness statements, vehicle damage, roadway evidence, and the officers' description of how the collision happened. If prosecutors are relying on the accident to make the DUI aggravated, they have to prove that the person caused a motor vehicle incident that meets Oklahoma's reporting requirements. Simply showing that the person was involved in an accident is not the language Oklahoma's aggravated DUI law uses.

Certain Traffic Violations Can Turn DUI Into a Felony

Oklahoma's aggravated DUI law also identifies several specific rules concerning roadway position, passing, lane usage, and divided highways. A DUI committed while violating one of those specified provisions is aggravated DUI.

This part of the law deserves careful attention because not every traffic violation qualifies. Speeding, failing to signal, or receiving some other traffic citation does not automatically make the DUI aggravated unless the conduct falls within one of the aggravating provisions.

When one of the specified traffic violations is the reason prosecutors filed aggravated DUI, I want to see exactly what the officer claims happened. Dash camera footage, body camera footage, witness accounts, roadway markings, and the officer's description of the driving can become important in deciding whether the State can prove the aggravator.

In a first-offense case, this is also one of the areas where the aggravated classification may become part of plea negotiations. If the underlying DUI evidence is strong but the qualifying traffic allegation is legitimately disputed, that distinction can affect whether the State is willing to resolve the case as a misdemeanor DUI.

Excessive Speed Can Make the DUI Aggravated

Speed creates an aggravated DUI when the person is driving more than twenty miles per hour over the posted speed limit. In an active school zone, the threshold is more than ten miles per hour over the limit.

A person facing DUI and a speeding citation should look at the actual alleged speed rather than assuming every speeding violation creates aggravated DUI. The statutory threshold has to be met.

Eluding Police While DUI Is Aggravated DUI

A DUI also becomes aggravated when the person commits the offense while eluding a peace officer. This creates a case involving both the underlying DUI evidence and the evidence supporting the allegation that the driver was attempting to elude police.

Video can be particularly significant. Dash camera recordings, body camera footage, pursuit video, emergency lights and siren evidence, driving behavior, and the circumstances surrounding when the driver stopped can all affect the eluding allegation.

The aggravated DUI classification depends on the State proving more than intoxication. If the alleged eluding conduct is the aggravating circumstance, that conduct has to be established as well.

A Passenger Under Eighteen Makes the DUI Aggravated

Operating a motor vehicle with a passenger younger than eighteen while committing DUI is aggravated DUI. No prior DUI conviction is necessary.

For an adult defendant, Oklahoma law also separately increases the fine when a child under eighteen was being transported in the vehicle. The child passenger allegation can affect both the felony classification and the financial punishment. The age of the passenger and whether the passenger was actually in the vehicle are usually straightforward factual questions.

Reckless Driving and DUI Together Create Aggravated DUI

Reckless driving is another specific aggravating factor. If the State proves DUI and reckless driving from the same incident, the DUI is aggravated.

A reckless driving accusation should not be reduced to the fact that the officer thought the driving was poor or unsafe. Oklahoma has a separate reckless driving offense, and the conduct has to satisfy that law before reckless driving supplies the aggravating factor.

This is another situation where the alleged aggravator deserves independent attention. Video, witness statements, speed, lane movements, traffic conditions, road conditions, and what actually happened before the stop or collision can all affect whether prosecutors can prove reckless driving in addition to DUI.

Aggravated DUI Is Not the Same as Repeat Felony DUI

A repeat felony DUI becomes a felony because of the person's prior DUI history. Aggravated DUI becomes a felony because of what allegedly happened during the new DUI itself.

Someone with no prior DUI conviction can face an aggravated DUI. A .15 test, qualifying accident, specified traffic violation, eluding, excessive speed, child passenger, or reckless driving creates the aggravated classification when the underlying DUI is also proven.

Prior DUI history still affects the punishment, so I do not stop with the number of prior arrests listed in the police report or criminal history. I want to know what happened in those cases, how old they are, how they were resolved, and when any sentence or deferred probation ended.

I pay particular attention when an alleged prior DUI came from another state. Other states do not define and punish impaired driving offenses exactly the same way Oklahoma does, and Oklahoma specifically limits the use of certain out of state convictions for DUI enhancement purposes.

The Age of Prior DUI Cases Needs to Be Checked

A prior DUI that looks serious on a criminal history printout does not automatically have the same legal effect in the new case. The date of the old arrest is not always the date that controls whether the prior case falls within Oklahoma's repeat DUI rules.

The final disposition and the date the earlier sentence or deferred probation was completed can be more important. That is why I want to review the actual court records whenever prior DUI history is affecting the punishment.

Out of state cases deserve additional scrutiny. I want to know what the person was actually convicted of, what alcohol concentration or impairment standard applied in that jurisdiction, and whether Oklahoma law allows that conviction to be used the way prosecutors are attempting to use it.

The State Has to Prove Both Parts of the Case

An aggravated DUI has two components. The State first has to prove a violation of Oklahoma's DUI law and then prove the circumstance being used to make that DUI aggravated.

Those issues do not always depend on the same evidence. A breath test, field sobriety tests, officer observations, statements, and video may be central to the underlying DUI, while a crash report, speed measurement, roadway video, passenger information, or evidence of reckless driving may establish the aggravating circumstance.

If the State cannot prove the underlying DUI, it cannot prove aggravated DUI. If the State proves DUI but fails to prove the aggravating circumstance, the aggravated classification does not remain simply because it was originally filed that way. The underlying DUI may still be prosecuted at whatever classification otherwise applies. This is especially significant in a first offense case where losing the aggravating circumstance may mean the difference between a felony aggravated DUI and a misdemeanor DUI.

Punishment for a First Aggravated DUI

Aggravated DUI is classified as a Class B3 felony, but Oklahoma created a specific punishment structure for the offense. The jail or prison range and fine begin with the punishment that would apply to the underlying DUI based on the person's prior history, and the aggravated DUI law adds additional mandatory requirements.

For a person with no prior qualifying DUI history, the underlying first offense punishment range is 10 days to one (1) year in jail and a fine of up to $1,000. In an aggravated DUI case, the first ten (10) days of the sentence cannot be suspended, deferred, or placed on probation, although Oklahoma law permits that jail time to be served on nights or weekends.

A conviction also requires at least one year of supervision and periodic testing at the person's expense. An ignition interlock device is required for at least 180 days, and the person must complete an alcohol and drug assessment and follow the treatment recommendations.

Since aggravated DUI is a felony, the separate electronic monitoring requirement for felony DUI convictions also applies. A Victim Impact Panel is also required.

This punishment structure is different from simply saying that every first aggravated DUI carries the ordinary one to twenty year punishment associated with other Class B3 felonies. Oklahoma wrote specific sentencing rules for aggravated DUI, and the person's prior DUI history has to be checked before the actual punishment can be stated accurately.

Prior DUI History Can Make the Exposure Much Greater

The aggravated classification does not replace Oklahoma's repeat DUI punishment rules. It operates on top of them. A person with qualifying prior DUI history starts with the punishment that applies to that prior record and then faces the additional aggravated DUI requirements. The mandatory portion of confinement also increases after the first offense.

For a second DUI offense, the first thirty (30) days of confinement are not subject to probation, suspension, or deferral. Each later conviction increases the mandatory portion by another thirty days.

My Tulsa County .41 BAC case is a good example of why prior history and treatment history both deserve attention. The evidence and criminal history made the case extremely serious, but the ultimate resolution came from addressing the client's substance abuse problem through an intensive court program rather than attempting to argue the underlying evidence was weak.

A Strong Aggravating Factor Does Not Prove the Underlying DUI

A crash, excessive speed, reckless driving, or child passenger may make the case look serious from the beginning, but those facts do not substitute for proof of DUI. The State still needs evidence that satisfies Oklahoma's DUI law.

In an alcohol case, a properly admitted .08 or higher test is powerful evidence. Police may also rely on driving behavior, officer observations, field sobriety tests, statements, video, and the circumstances surrounding the arrest.

An aggravated DUI based on drugs presents the same two part problem. The State needs evidence of the drug DUI and evidence of one of the aggravating circumstances other than the alcohol specific .15 provision.

The Traffic Stop and Arrest Still Have to Be Lawful

The felony label does not eliminate the ordinary constitutional questions surrounding the investigation. Police still need a lawful basis for a traffic stop, and an arrest must be supported by probable cause.

Rob compares the officer's stated reason for the stop with the available video and other evidence. When the same driving conduct is being used both to justify the stop and to make the DUI aggravated, the precise driving allegation deserves particularly careful review.

The Driver's License Case Is Separate

An aggravated DUI prosecution and the Service Oklahoma driver's license process remain separate. A qualifying .08 or higher test result or a refusal leads to driver's license action even while the felony criminal case is pending.

The driver's license case will require attention long before the aggravated DUI charge is resolved in court. A qualifying test result or refusal starts a separate Service Oklahoma process with its own revocation and IDAP issues. Test results, refusal documents, revocation notices, prior driving history, and IDAP issues need to be addressed separately from the criminal charge.

What Should You Do After an Aggravated DUI Arrest?

Keep everything connected with the arrest, including bond paperwork, test documents, driver's license paperwork, citations, collision reports, and any documents identifying the alleged aggravating conduct. Write down what happened while the details are fresh, especially anything involving the driving, speed, collision, passengers, police pursuit, or field sobriety testing.

Photographs, vehicle video, dash cameras, witnesses, traffic-camera footage, and other records may become important when the State is relying on the manner of driving as the reason the DUI is a felony. Preserve those materials rather than assuming the police report contains the entire story.

If you have prior DUI cases, gather whatever court paperwork you still have, especially if one of those cases happened outside Oklahoma. The actual disposition and dates may become important when determining what punishment applies.

Frequently Asked Questions About Aggravated DUI

Is aggravated DUI a felony in Oklahoma?

Yes. Aggravated DUI is classified as a Class B3 felony. A person does not need a prior DUI conviction to face the charge. The felony classification is based on the new DUI occurring with at least one of the aggravating circumstances identified by Oklahoma law.

Is a .15 alcohol concentration automatically aggravated DUI?

A qualifying .15 or higher blood or breath alcohol concentration satisfies the alcohol concentration aggravating factor. The State does not need a separate crash, reckless driving allegation, or child passenger to use that provision.

Does there have to be an injury accident for an aggravated DUI?

No. The accident provision is tied to whether the motor vehicle incident is reportable under Oklahoma law, not solely to whether someone suffered a serious injury. A qualifying property damage collision can fall within the aggravated DUI law.

Does every traffic violation make a DUI aggravated?

No. Oklahoma identifies particular roadway violations that qualify, along with separate provisions for excessive speeding, eluding, and reckless driving.

A routine traffic citation that is not one of the qualifying violations does not automatically create aggravated DUI. When the State is relying on a traffic offense as the aggravator, I look closely at whether the evidence actually supports that particular violation.

Can an aggravated DUI based on a traffic violation be reduced to misdemeanor DUI?

It is possible in the right case, but it depends on the aggravator, the evidence, the person's prior history, and the prosecutor's agreement. I have found that a first offense case involving a legitimately disputed traffic aggravator may present a different negotiation opportunity from an aggravated DUI based on an undisputed .15 or higher test result. Removing the aggravator does not automatically make the underlying DUI disappear. The misdemeanor DUI still has to be resolved if the State has sufficient evidence to prove it.

Can a first DUI really be a felony?

Yes. Aggravated DUI does not require a prior DUI conviction. A first DUI accompanied by a .15 or higher test, a qualifying reportable incident, specified roadway violation, eluding, excessive speed, a passenger under eighteen, or reckless driving is aggravated DUI and is classified as a felony.

Is aggravated DUI the same as felony DUI?

Aggravated DUI is a type of felony DUI, but it is different from the repeat-offense felony provisions. Repeat felony DUI usually depends on prior convictions or deferred sentences, while aggravated DUI depends on circumstances surrounding the new offense. Prior history still affects aggravated DUI punishment. Someone facing both aggravated circumstances and prior DUI history needs both issues reviewed together.

Does aggravated DUI automatically mean prison?

No. The sentencing provision does not impose the ordinary generic Class B3 prison range on every first aggravated DUI. A first offense aggravated DUI uses the first time DUI punishment range, but the first ten (10) days cannot be suspended, deferred, or placed on probation. The law also adds supervision, testing, treatment, ignition interlock, and other felony DUI requirements.

Can DUI Court be an option in an aggravated DUI case?

It was an option in the Tulsa County case discussed above, where my client faced extremely serious evidence and an initial five year prison offer. After lengthy negotiations focused on his lack of meaningful prior treatment, the State agreed to allow him into Tulsa DUI Court under strict conditions.

That result should not be treated as a promise that another aggravated DUI defendant will qualify for DUI Court or receive the same agreement. Eligibility, prosecutorial approval, the person's criminal history, treatment history, and the circumstances of the case all affect whether that type of resolution is available.

Can an aggravated DUI charge be reduced or dismissed?

It is possible, but there has to be a legitimate basis for changing the charge. Aggravated DUI requires proof of both the underlying DUI and the aggravating circumstance, so either part of the accusation may present a real issue depending on the evidence. A weak aggravating allegation does not necessarily make the underlying DUI disappear. If prosecutors can prove DUI but cannot prove the circumstance that made it aggravated, the remaining DUI still has to be dealt with.