In November 2019, Oklahoma’s Implied Consent laws changed dramatically with the passage of Senate Bill 712. Gone are the days where a client’s only choices were to either sit out a revocation for driving under the influence (DUI) or actual physical control (APC) or request an administrative hearing from the Oklahoma Department of Public Safety (DPS) within 15 days of receiving a notice of revocation. SB 712 created a new alternative in the Impaired Driver Accountability Program (IDAP)¹ and changed the method of challenging a revocation of driving privileges.²

Under the new law, a client now has 30 days from the date they receive a notice of revocation to either apply for IDAP³or file an appeal of the revocation directly to the district court in the county where the arrest occurred.⁴ If the client does not apply to IDAP or file an appeal in district court within the 30-day time frame, their driving privilege will be revoked by DPS at the end of the 30 days.⁵

The basic idea behind IDAP is that if a client, who is subject to revocation of their driving privilege for DUI or APC, agrees to forego challenging the revocation and have an ignition interlock device installed on their vehicle for a period of time, then upon successful completion of the program, a revocation will not appear on their driving record.⁶ However, under the statutes and Oklahoma Administrative Code (OAC), there are a number of issues to consider in applying for IDAP and completing the program.

 

ISSUES IN APPLYING FOR IDAP

The first issue to consider in applying for IDAP is whether the client holds a commercial driver’s license (CDL). Under DPS administrative rules, only people who held a Class D license at the time of arrest are eligible for IDAP.⁷This is due to the Federal Motor Carrier Safety Administration’s ban on masking of convictions for DUI.⁸Based on this, if the client held a CDL at the time of arrest, regardless of the type of vehicle they were operating at the time,⁹they would not be eligible for IDAP and would instead need to challenge the revocation and/or disqualification.

A second issue to consider is whether the client is eligible to have a license. To enter IDAP, the client must be able to hold a valid license and is not otherwise ineligible.¹⁰ Oftentimes, the client may have their license revoked due to a prior DUI or APC arrest or have their license suspended due to points, failing to appear in court, etc. If the client can get their driving privilege reinstated prior to enrolling in IDAP, it is still an option. However, if the client is unable to do so, they will not be eligible to enroll in IDAP.

A third issue to consider is whether the client has a vehicle in which they can install an interlock device. There have been instances where the person was arrested for DUI resulting from an accident, and the vehicle is being repaired or is totaled. If the client does not have a vehicle in which to install an interlock, IDAP would not be an option. However, if the delay in getting a vehicle is a minimal amount of time, DPS may work with the individual in getting them into IDAP.

A fourth issue to consider is whether alcohol was involved in the arrest. If alcohol was not a factor in the arrest, the client is not eligible for IDAP. This would occur in a situation where the officer believes the client to be under the influence of drugs only, and the client refuses the requested blood test. If the client submits to the blood test and tests positive for drugs only, DPS will not revoke the driving privilege under Oklahoma’s implied consent laws.¹¹

 

A last issue to consider is one that rarely arises but is worth discussing. In some instances, the client may suffer from a respiratory problem that could cause them difficulty in providing sufficient air volume to use an interlock device. It is recommended that while still in the period to either request IDAP or file a challenge, the client makes arrangements with a few different interlock companies to blow into an instrument and find one that may work for them. If the client is unable to find an interlock in which they can blow, IDAP will not be an option.

 

BENEFITS OF IDAP

Assuming a client does not fall into one of the previous categories and is eligible for IDAP, should they do IDAP, and what is the benefit? As stated previously, the biggest benefit to IDAP is that upon successful completion, the client does not have the revocation appear on their driving record.  Additionally, the client does not have to pay reinstatement fees to DPS since their driving privilege was not revoked.¹²However, if the client chooses IDAP, they give up their right to challenge the merits of the revocation of their driving privilege. So, the decision whether to choose IDAP or file a petition in district court to challenge the revocation is going to come down to the strength of DPS’s case against the client and, more importantly, if the client can live with the revocation on their driving record should the district court sustain the revocation.

 

STEPS FOR ENROLLMENT AND PHASES OF THE PROGRAM

If the client chooses IDAP, the first step is to complete the DPS enrollment request form. As of May 2021, DPS does not have the form available on its website,¹³but information from DPS is that the form will be forthcoming. Absent a request form, a letter to DPS requesting enrollment in IDAP that contains the client’s name, date of birth and driver’s license number would suffice. The enrollment request form must be received by DPS within 30 days of the client receiving the notice of revocation. The enrollment request form can be mailed or hand delivered to DPS headquarters in Oklahoma City or emailed to DPS at IDAP@dps.ok.gov.

Once DPS approves the request, the client will then be required to submit to DPS a $250 fee, ignition interlock installation certificate, proof of insurance on their vehicle and a signed IDAP agreement form that DPS will provide. Everything needs to be completed within 45 days of when the person was given the notice of revocation. Once all of that is submitted, the client is enrolled in IDAP.

The IDAP period is the same as the revocation period the client would be facing. For a first-time DUI or APC arrest, the revocation period is 180 days; for a second DUI or APC arrest within 10 years of the commencement of prior revocation or completion of IDAP, the client is facing a revocation period of one year; and for a third or subsequent DUI or APC arrest within 10 years of the commencement of two prior revocations or completion of IDAP, the client is facing a three-year revocation period.¹⁴

Although the benefit of the IDAP program is that a revocation does not appear on the client’s driving record, IDAP can still be used to increase the revocation period or IDAP length should the person be arrested again for DUI or APC within 10 years of the completion of IDAP. This is different than a revocation in which a subsequent DUI or APC is within 10 years of when the revocation commenced.¹⁵

The IDAP program is split into two phases, and its length is dependent upon the length of the program the client is enrolled in. For a 180-day program, Phase I is the first 120 days, and Phase II is the last 60 days of the program. For a one-year program, Phase I is the first 245 days, and Phase II is the last 120 days. For a three-year program, Phase I is the first year of the program, and Phase II is the last year of the program.¹⁶¹⁷

While the client is Phase II, the program length can be extended if the client has either a verified ignition interlock violation or a verified program violation reported to DPS by the Oklahoma Board of Tests for Alcohol and Drug Influence (BOT). A verified ignition interlock violation consists of three penalty fails at startup within a 15-minute time frame or three retest violations. After the initial three retest violations, each additional retest violation is a reportable violation. A verified program violation includes a circumvention of the interlock device, unauthorized removal of the interlock device, tampering with the device or missing a service appointment.¹⁸

During Phase I, the program length is not extended for interlock violations. However, during both Phase I and II, remedial measures may be taken by DPS, including removal from the IDAP program, which will result in a revocation of driving privilege. Other remedial actions that can be taken by DPS for interlock violations include retraining with the interlock manufacturer, installation of an interlock device with a camera, restricting the days and times of driving and referral to reassessment.¹⁹

For a 180-day program, a violation during Phase II results in a 60-day extension from the date of the violation. For a one-year program, a violation during Phase II results in a 120-day extension. For a three-year program, a violation during Phase II results in a one-year extension.²⁰ Before DPS can extend the program length, they must give notice to the client, and the client has a right to request an informal hearing with DPS. The request must be made within 15 days of completion of the notice.²¹

To complete IDAP, the client must submit to DPS a Drug and Alcohol Assessment completion certificate or an affidavit if the client lives more than 70 miles away from an Oklahoma assessment center and an interlock history from BOT showing no violations during Phase II. Once DPS has received these items, the client has completed IDAP.²²

 

ADDITIONAL ISSUES TO CONSIDER

There are two issues regarding IDAP that are worth mentioning. First, the installation of the interlock under IDAP is to be credited toward any court order arising out of the same incident.²³ For example, if the client has the interlock installed for 180 days under IDAP, and in the client’s criminal case, the court orders the installation of an interlock as part of the client’s sentence, the client is to be given credit toward their criminal case for the time they had the interlock installed under IDAP.

The second is regarding a conviction in the criminal case. Successful completion of IDAP results in no revocation appearing on the driving record. If DPS receives an abstract of conviction from the criminal court from the same arrest, this will not result in a revocation on the driving record.²⁴ However, DPS will report the conviction on the driving record.

If the client elects not to enroll in the IDAP program or is not eligible to enroll, their other option is to file a petition in the district court in which the arrest occurred. Under SB 712, the cash bond requirement was removed, so no cash bond needs to be posted.

At the hearing, the burden is on DPS to prove the issues in Title 47 O.S. §754(D): 1) The officer had reasonable grounds to believe the person had been operating or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public places in this state while under the influence of alcohol, any other intoxicating substance or the combined influence of alcohol and any other intoxicating substance as prohibited by law and 2) the person was placed under arrest.

If the revocation is based upon a breath or blood test, DPS must additionally prove 1) the person was not denied a breath or blood test if the person requested one; 2) the specimen was obtained from the person within two hours of arrest; 3) if the person is under 21 years of age, they were advised their driving privilege would be revoked if the test reflected any measurable amount of alcohol, or if the person is over 21 years of age, they were advised their driving privilege would be revoked if the test reflected an alcohol concentration of 0.08% or more and 4) the test results reflect the alcohol concentration.

If the revocation is based upon a refusal to submit to a breath or blood test, DPS must prove 1) the person refused to submit to the test or tests and 2) the person was informed their driving privileges would be revoked if they refused to submit to the test or tests.

If the court finds DPS has not met its burden, the court will order the revocation to be set aside.  If the court finds DPS has met its burden, the court will sustain the revocation. If the revocation is sustained, a modification to allow the person to drive with an ignition interlock can be requested, but it is no longer discretionary with the court. SB 712 created a new law codified at 47 O.S. §754.2 that states:

The district court shall modify, upon request, the revocation or denial occurring pursuant to Section 753 or 754 of Title 47 of the Oklahoma Statutes. The district court shall enter a written order directing the Department of Public Safety to allow driving, subject to the limitations of Section 6-205.1 of Title 47 of the Oklahoma Statutes and the requirement of an ignition interlock device as provided in Section 754.1 of Title 47 of the Oklahoma Statutes; provided, any modification under this paragraph shall apply to Class D driver licenses only.

Similar to the extension of the IDAP program for violations, the length of a revocation can likewise be extended for violations. DPS must receive a report from BOT that there have been no violations in the last 180 days of the revocation. If a violation is reported, the revocation will be extended for 180 days from the date of the violation. However, DPS must give the client notice prior to any extension, and the client has the right to request an informal hearing that must be made with 15 days of the notice.²⁵

The last issue to take into consideration is the client who submitted to a blood test. In these instances, the client is not given a notice of revocation or disqualification because the blood alcohol results are unknown until an analysis is done. Accordingly, their 30 days to choose either IDAP or file a petition has not commenced. In this case, it is recommended to send a letter to DPS advising them of the client’s representation, and if any notice of revocation is issued by DPS, a copy should be sent to the attorney in a timely fashion.

 

CONCLUSION

As always, it’s important to keep up to date on changes in the DUI laws that can affect a client’s driving privilege. This past legislative session saw the passage of SB 367, which will go into effect Nov. 1.  Under the bill, it does away with the requirement that law enforcement officers seize the client’s driver’s license and submit it to DPS. Additionally, it does away with the language in 47 O.S. §759 stating that for a breath or blood test to be admissible, it must be done in accordance with BOT rule and instead puts directly into the statute what constitutes a valid breath and blood test. It is anticipated there will be additional DUI bills submitted next legislative session.

 

ABOUT THE AUTHOR

Brian K. Morton is an Oklahoma City attorney and a 2000 graduate of the OU College of Law. Since July 2014, he has handled all driver’s license matters for the Edge Law Firm in Tulsa and the Hunsucker Legal Group in Oklahoma City. He is a member of the Oklahoma Criminal Defense Lawyers Association, the Oklahoma State Delegate to the National College of DUI Defense and served as an OBA governor at large from 2018-2020.

 

 

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1. Title 47 O.S. §6-212.5.
2. Title 47 O.S. §754.
3. Title 47 O.S. §6-212.5 (B)(1).
4. Title 47 O.S. §6-211(D) and (E).
5. Title 47 O.S. §754 (B).
6. Title 47 O.S. §6-212.5 (C).
7. OAC 595:40-7-3(e)(2).
8. 49 CFR §384.226.
9. 47 O.S. §6-205.2(B)(2) and (3).
10. Title 47 O.S. §6-212.5(B)(4).
11. DPS cannot revoke under implied consent for a positive blood test for drugs only because 47 O.S. §6-205(A)(2) only allows for revocation based on a finding the client was, in fact, DUI/APC. However, under 47 O.S. §754, the issue to be determined is that the officer had probable cause to believe the person was DUI/APC. Completely different standard.
12. Title 47 O.S. §6-212.5(C).
13. oklahoma.gov/dps.html.
14. Title 47 O.S. §6-205.1.
15. Title 47 O.S. §6-205.1(A).
16. OAC 595:40-7-2.
17. DPS’s administrative rules fail to classify what phase a client enrolled in a three-year program is in during the second year of the program.
18. OAC 595:40-7-2.
19. OAC 595: 40-7-5(d).
20. Title 47 O.S. §6-212.5(D).
21. Title 47 O.S. §6-212.5(E).
22. OAC: 595:40-7-6.
23. Title 47 O.S. §6-212.3(D).
24. Title 47 O.S. §6-205.1(A).
25. Title 47 O.S. §6-212.3(G).