“A person’s claim to a driver’s license is a protectable property interest that may not be terminated without due process of law under the United States Constitution. Oklahoma’s Constitution provides no less protection.”[1]

Every driver operating a motorized vehicle on a public road has agreed to follow a few rules. They have agreed to obey “the laws of the road” by following traffic signs and stoplights and operating their vehicles with due care. Drivers implicitly agree to abstain from engaging in reckless conduct or being inattentive while operating their vehicles. In Oklahoma, drivers agree to a test of their “blood, breath, saliva, or urine to determine the presence or concentration of alcohol or other intoxicating substances if arrested for offenses related to driving under the influence or if involved in a traffic accident resulting in serious injury or death.”[2] Refusal to submit to the state’s test or having a blood alcohol content (BAC) of 0.02% or above if under 21 years of age or over 0.08% if over 21 years of age allows Service Oklahoma (SOK) to revoke their license for a period of 180 days if the arresting officer had reasonable grounds to believe the driver was operating the vehicle under the influence.[3] The driver, after an arrest for driving under the influence (DUI), can contest administrative action by SOK by filing an appeal before the district court in order to keep their driving privileges.[4] Winning an implied consent hearing, also known as a driver’s license appeal, is imperative for a driver to keep valid driving privileges without an interlock restriction.

WHAT IS AN IMPLIED CONSENT HEARING?

Implied consent hearings are administrative proceedings that occur after a driver is arrested for DUI or actual physical control (APC) of a motor vehicle if the arresting officer submits an officer’s impaired driving affidavit to SOK reflecting that the driver either refused to comply with the implied consent laws or had a BAC over the legal limit. These hearings are civil in nature and distinct from any criminal charges related to driving while under the influence of drugs or alcohol. However, the basis for the hearing arises from the criminal act of driving under the influence or APC. The primary purpose of these hearings is to determine whether a revocation of the driver's license is justified based on specific statutory criteria. The hearing focuses on:

• That the officer had reasonable grounds to believe the person was operating a motor vehicle while under the influence;
• That the person was lawfully arrested;
• If timely requested, the person was not denied a breath or blood test;
• The specimen was obtained within two hours of arrest;
• The person was advised that their driving privileges would be revoked if they tested over the legal limit; and
• The test result, in fact, reflects the alcohol concentration.[5]

PROCEDURAL HISTORY OF IMPLIED CONSENT LAWS IN OKLAHOMA

The administrative codes and statutes governing implied consent hearings are primarily found in Title 47 of the Oklahoma Statutes. Title 47 O.S. §6-211 provides an avenue and requirements for a district court appeal to contest a driver’s license revocation. Title 47 O.S. §759 establishes the regulatory power of the Board of Tests for Alcohol and Drug Influence regarding the prescription of “uniform standards and conditions for, and to approve satisfactory methods, procedures, techniques, devices, equipment and records for, tests and analyses and to prescribe and approve the requisite education and training for the performance of tests or analyses of breath to determine the breath alcohol concentration.”[6]

The procedures for appealing a driver’s license revocation have dramatically changed in the last few years. Under the old system, which was handled by the Oklahoma Department of Public Safety and had been in place for decades, the revocation process began when a police officer made an arrest and served the licensee with what was called an “officer’s affidavit and notice of revocation.” The affidavit contained a great deal of information about the incident. It covered the date and time of the alleged offense, the name of the arresting officer, the name of the arresting officer’s agency or department, a description of the driving behavior, a description of the person’s physical condition and information about the breath test result or refusal. This information was the basis for the revocation.

Prior to 2019, if a driver had been arrested for DUI and did not take the state’s test, they only had 15 days to request an administrative hearing or face an automatic license suspension. However, in 2019, the Oklahoma Legislature passed a bill creating the Impaired Driver Accountability Program (IDAP). IDAP is an alternative route a driver, who is subject to a driver’s license revocation, may exercise following a DUI arrest. This program allows participants to retain driving privileges by installing an ignition interlock device (IID) in their vehicle rather than losing their driving privileges.[7] If one is enrolled in IDAP, they are required to pay certain fees, install approved ignition interlock devices and follow all the other requirements.[8] Furthermore, the Oklahoma Board of Tests is the controlling body over the program and is able to “promulgate rules necessary to regulate ignition interlock devices and the providers of such devices, which shall be subject to suspension or revocation in accordance with the rules promulgated by the Board.”[9]

BURDEN OF PROOF AND PROCEDURES

SOK has the burden of proof, by a preponderance of the evidence, in driver’s license proceedings.[10] Driver’s license appeals are exempt from the Oklahoma Pleading Code and the Discovery Code.[11] Driver’s license appeals are not exempt from the Oklahoma Evidence Code.[12] After an arrest for DUI or APC, the arresting agency is tasked with providing SOK with information so that SOK can determine if taking action is warranted. SOK has 180 days from the arrest or from the results of a blood draw to take action.[13] If SOK does not take action within 180 days, no action can be taken against the licensee for the DUI or APC arrest unless they are convicted of DUI or APC.[14]

SOK is required to send a notice to a licensee, and it is generally mailed to the address on file with SOK (generally the address on their driver’s license). If a licensee gets a notice from SOK within 180 days of their arrest, they have 30 days to file a district court appeal (DCA), or they lose that right forever.[15] A licensee also has the option to forgo a DCA and enroll in IDAP. If the licensee chooses to enroll in IDAP, they are required to comply with the rules of the Oklahoma Board of Tests by having an interlock device installed in any vehicle they drive.[16] If the licensee exercises their right to a DCA and wins, they do not lose their driving privileges, and there is no action taken by SOK.[17] If they exercise their right to a DCA and lose, they’re required to participate in IDAP before they’re eligible to reinstate their driver’s license without restrictions.[18]

A DCA is essentially a bench trial where SOK is required to prove the elements contained in 47 O.S. §§751-759. SOK is not required to disclose which witnesses or evidence will be introduced at the trial and generally does not provide exhibits until moments before the trial begins. Despite being the defendant in the action, the burden of proof is solely with SOK, and they start the trial by calling witnesses or introducing evidence. Once SOK rests, the licensee is allowed to present witnesses or evidence, and the court generally renders its opinion at the conclusion on the record. If the court finds that SOK did not meet its burden, the court will sustain the licensee’s petition and set aside the revocation. If the court finds that SOK met its burden, the court generally overrules the petition and sustains the revocation. The revocation period is generally 180 days for a first offense, one year for a second offense and two years for a third offense within 10 years.[19] Additionally, “the revocation of the driving privilege of any person under Section 6-205, 6-205.1, 753, or 754 of this title shall not run concurrently with any other revocation of driving privilege under Section 6-205, 6-205.1, 753, or 754 of this title resulting from a different incident.”[20]

ATTORNEY FEES

If SOK takes action against a licensee that does not serve a reasonable basis or is frivolous, SOK could be on the hook for attorney fees and costs.[21] For example, in Johnson v. State, ex. rel. DPS, DPS erroneously issued a driver’s license revocation notice after the plaintiff’s driver’s license revocation had already been set aside.[22] Mr. Johnson filed a driver’s license appeal, and DPS restored his driving privileges upon receipt of the appeal.[23] The trial court found that there was no reasonable basis for this revocation and awarded Mr. Johnson his attorney fees and costs, including expert witness fees, incurred in the action. The Oklahoma Court of Civil Appeals found that the trial court properly held that DPS had no reasonable basis for suspending the plaintiff’s driver’s license and affirmed the trial court’s award.[24]

The Oklahoma Court of Civil Appeals based its decision in Johnson on a case where DPS admitted it lacked authority to suspend an out-of-state driver’s license.[25] However, DPS revoked Mr. Miller’s driving privileges even after case law directed that his privileges be restored.[26] The trial court, and later the appellate court, determined that DPS’s actions were unreasonable and awarded Mr. Miller his attorney fees and costs.[27]

In 2022, the Oklahoma Court of Civil Appeals affirmed that DPS acted unreasonably when it suspended the plaintiff’s driving privileges based on pending traffic violations that had not become convictions.[28] In Currington, an abstract was sent to DPS noting three convictions for traffic violations. DPS issued a letter and notice of suspension based on these convictions.[29] However, this abstract was incorrect, and they were pending matters rather than convictions.[30] Mr. Currington and his attorneys attempted to contact DPS and rectify the situation but were unsuccessful. Immediately before the suspension took effect, Mr. Currington filed his appeal. The trial court determined that the suspension by DPS was unreasonable, and the Oklahoma Court of Civil Appeals affirmed.[31]

In January 2025, the Oklahoma Court of Civil Appeals reversed the trial court and found that the actions by SOK in revoking a driver’s license without proper notice lacked a reasonable basis and were subject to attorney fees and costs.[32] On Dec. 17, 2022, Mr. White was arrested for suspicion of DUI, and a blood draw was performed.[33] The notice provided to Mr. White at the time of his arrest advised that he would receive a notice informing him of the commencement of a revocation.[34] Mr. White heard nothing for over a year, and on Jan. 3, 2024, SOK mailed him a notice and order of revocation that was dated June 23, 2023.[35] Despite not sending the notice for over six months from the date it was created, SOK did, in fact, revoke Mr. White’s driving privileges on the original date of the notice without giving him meaningful notice.[36] The appellate court determined the actions by SOK did not provide Mr. White with notice, and, thus, those actions were taken without a reasonable basis or were frivolous.[37] Consequently, SOK was held liable for Mr. White’s reasonable attorney fees and costs.

CONCLUSION

The administrative side of a DUI or APC is an ever-changing landscape through legislative changes and procedural challenges. It is a highly nuanced area of law that requires thorough research and commitment to stay current on the changes and their applications.

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ABOUT THE AUTHOR

Sabah Khalaf is the owner and managing attorney of the Khalaf Law Firm in Tulsa. His practice is focused on high-stakes litigation and criminal matters. Mr. Khalaf practices in federal, state, tribal and municipal criminal courts from prefiling investigations to trial.

 

 

 

 

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ENDNOTES   

[1] Hunsucker v. Fallin, 2017 OK 100, ¶¶14-15; see also Bell v. Burson, 402 U.S. 535, 542 (1971).

[2] 47 O.S. §751 (A).

[3] 47 O.S. §754 (B).

[4] 47 O.S. §754 (C).

[5] 47 O.S. §754; Smith v. State ex rel. Dept. of Pub. Safety, 680 P.2d 365, 368, 1984 OK 16, ¶6 (Okla. 1984).

[6] 47 O.S. §759.

[7] 47 O.S. §6-212.5.

[8] Id.

[9] Id.

[10] Hollis v. State, ex rel. Dept. of Public Safety, 2008 OK 31, ¶8, 183 P.3d 996, 999.

[11] 47 O.S. §6-211(A).

[12] Muratore v. State ex rel. Dep’t of Pub. Safety, 2014 OK 3, 320 P.3d 1024 (2014).

[13] 47 O.S. §754.

[14] 47 O.S. §6-205.

[15] 47 O.S. §6-211.

[16] 47 O.S. §6-212.5.

[17] 47 O.S. §6-211(H).

[18] 47 O.S. §6-205.1(A)(1).

[19] Id.

[20] Id.

[21] 12 O.S. §941.

[22] Johnson v. State, ex. rel. DPS, 2018 OK CIV APP 4, ¶2.

[23] Id. at ¶3.

[24] Johnson v. State, ex. rel. DPS, 2018 OK CIV APP 4.

[25] Miller v. State ex. rel. DPS, 1996 OK CIV APP 71.

[26] Id.

[27] Id.

[28] Currington v. State ex. rel., DPS. 2022 OK Civ. App. 1.

[29] Id.

[30] Id.

[31] Id.

[32] White v. State, ex. rel. Serv. Okla., 2025 OK CIV APP 20, at ¶¶1 and 14.

[33] Id. at ¶2.

[34] Id.

[35] Id. at ¶4.

[36] Id.

[37] Id. at ¶11.