Top 10 Defenses for DUI Charge in Oklahoma

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The Top 10 Legal Defenses to Driving while Intoxicated (“DUI”) in Oklahoma fall into 3 Categories:

  • You were not Intoxicated
  • Your Driving was not Impaired
  • The arrest/traffic stop was illegal


Any experienced Oklahoma DUI Defense Attorney  can tell you a DUI arrest does not equal a DUI conviction. You have the ability to fight your case and defend your driving privileges to try and avoid the stiff penalties for an Oklahoma DUI, which includes difficult probation, heavy fines, driver’s license suspension, and potential jail time. In order to fight your case, you need a strong defense.

Top Ten Defenses for DUI in Oklahoma

  1. Top DUI Defense No. 1: Arresting Officer Failed to Follow Procedure

Oklahoma law and the Constitution provide a powerful defense when police fail to follow proper procedure in making a traffic stop or conducting Field Sobriety tests. The protections afforded every citizen when interacting with police is especially true when it comes to traffic stops and arrests for DUI.

Oklahoma DUI investigation and arrest is governed by laws to protect you from police misconduct, including, but not limited to:

  • Oklahoma Statutes Title 22 Criminal Procedure;
  • The requirement that an officer have probable cause prior to making a traffic stop; DUI investigation; or DUI arrest;
  • The Constitutional protection of being read your “Miranda” rights prior to being interrogated about an alleged DUI.

Your Oklahoma DUI lawyer will seek suppression to exclude illegally obtained evidence in your case, if any of these protections are violated. Not only may your case be dismissed based on improper police conduct, but the judge may suppress or exclude evidence in your case, which will help your Oklahoma DUI lawyer obtain a better DUI plea agreement or resolution of your DUI.

  1. Top DUI Defense No. 2: Field Sobriety Tests (“FSTs”) Do Not Accurately Measure Impairment

You and your Oklahoma DUI defense attorney may be able to challenge the admissibility and results of your Field Sobriety Tests (“FSTs”), if you submitted to FSTs. In your DUI case the prosecutor, arresting officer, and criminalist may try to prove your “poor performance” on FSTs indicates you are guilty of drunk driving or DUI under Oklahoma law. However, the unreliability of FSTs should be part of your Oklahoma DUI defense strategy.

Your DUI defense lawyer should explain lack of balance or coordination during FTS may be affected by a number of factors, including:

  • Your lack of physical coordination;
  • You’re nervous;
  • You were fatigued;
  • You had poor footwear;
  • Uneven roadway; or
  • A variety of other issues

Your Oklahoma DUI defense attorney should challenge the reliability of FST. The NHTSA claims FSTs have a high level of reliability; however, that claim relies on a number of factors, including the officer being properly trained and experienced in conducting the tests as well as test conditions being perfect for each of the three state “standardized FSTs:

  1. The Horizontal Nystagmus Test;
  2. The Walk-and-Turn Test; and
  3. The One-Leg Stand

In reality, the factors affecting the reliability of FST results vary greatly and can negatively impact the accuracy of the results of the FSTs. Your Oklahoma DUI defense attorney can build your DUI defense around these and other problems in FSTs.   

  1. Top DUI Defense No. 3: Officer failed to Conduct 15-Minute Observation Period

As mentioned above the arresting officer is required to observe you for fifteen minutes before administering your DUI breath test. Whether or not the proper deprivation period was observed is a significant defense in your DUI case.

Often officers will not actually “observe” the person suspected of DUI during the observation period. Instead, they will do other work related to your DUI arrest, including paperwork or inventory your vehicle. Proving the officer failed to properly perform the observation period calls the results of the breath test into question as well as the remainder of the DUI stop.

  1. Top DUI Defense No. 4: Officer Didn’t Comply with Erin Swazey Law on Blood and Breath Testing

An arresting officer’s failure to comply with the specific procedural protocols for conducting FST, breathalyzer testing, or chemical testing may result in your case being dismissed or a substantial DUI defense.

Oklahoma law, specifically the Erin Swezey Act dictate specific procedures that must be followed in order to conduct a proper DUI FST, DUI breathalyzer test, and DUI chemical/blood test. Some of the requirements include:

  • A 15-minute deprivation/observation period (described above);
  • Proper and current training of the officer conducting the chemical/blood test;
  • Proper administration of tests, which comply with Oklahoma Board of Test procedure;
  • Proper and regular calibration of the Breathalyzer machine used to test;
  • Chain of custody issues in the collection, transportation, handling, and storage of samples

When officers fail to strictly comply with the Board of Test procedures, your Oklahoma DUI blood or breathalyzer test could be faulty. An experienced Oklahoma DUI defense lawyer can attack the validity of your DUI test results if any of the regulations were not followed properly. The failure to comply with one element of the overall procedure may be the key to defending your DUI charge in Oklahoma.

  1. Top DUI Defense No. 5: Bad Driving Does Not Equal DUI

Bad driving does not by itself equal driving under the influence. Most DUI traffic stops occur after a police officer observes a traffic violation; however, merely driving poorly does not mean you cannot fight a DUI. One of the first details prosecutors consider in an Oklahoma DUI case is your driving pattern. Officers often begin their report or testimony with your driving pattern, which often includes allegations of speeding or swerving between lane lines.

An experienced Oklahoma DUI defense lawyer can fight this testimony by having the officer detail all the ways in which you were driving properly. An experienced Oklahoma DUI defense attorney can elicit testimony that the traffic violations observed are committed by sober drivers and that driving patterns are not a reliable DUI indicator.

The National Highway Traffic Safety Administration (“NHTSA”) has stated driving patterns are only reliable 35% of the time in predicting a DUI. Even the National District Attorneys Association admits driving behaviors are nuanced.

  1. Top DUI Defense No. 6: Objective Symptoms of Intoxication Do Not Equal DUI

Another tactic to fight Oklahoma DUI charges is to challenge the prosecutor’s attempt to argue you were under the influence simply because you had physical symptoms associated with intoxication. Appearances play a major role in law enforcement’s decision to arrest you for DUI. These factors including: red bloodshot watery eyes; slurred speech; the odor of alcohol; unsteady walking; or a flushed face.

A skilled DUI defense attorney can defend you at trial against your DUI charges by identifying other explanations of your physical symptoms: fatigue; allergies; sickness; poor balance, or other issues. One example is the fact a person may have the “smell of alcohol” from only one drink or having a drink spilled on them, which obviously does not mean the person is intoxicated. The innocent explanations for outward objective symptoms of intoxication can form the basis for a reasonable doubt resulting in a not guilty verdict in your DUI trial.

  1. Top DUI Defense No. 7: Not DUI When Mentally Alert

Physical impairment is not the same as mental impairment and the difference may form the basis for your Oklahoma DUI defense. Police regularly testify to suspicion of physical signs of impairment; however, they often do not testify to mental signs of impairment. Your DUI defense may be strengthened by the fact the arresting officer did not observe any sign of mental impairment.

In trial, a DUI expert or DUI toxicologist can explain to the jury how unusual it would be to be intoxicated with alleged physical signs of impairment, but not mentally impaired. A charge of DUI based upon physical impairment, but not mental impairment is often based on false signs of intoxication, which can help your DUI defense.

  1. Top DUI Defense No. 8: Health Conditions Falsely Inflate Your BAC

Many common health conditions can form the basis for a solid DUI defense in Oklahoma. Breath tests only measure a moment in time and are a representation of the amount of alcohol in your breath the moment you exhale into the breathalyzer. However, the human body and the physiology and chemistry that lead to the contents of your breath is far more complicated. Our bodies are largely fueled by carbohydrates; however, our bodies must break down fats for fuel under certain conditions, such as participating in a Paleo or Atkins diet or if you suffer from diabetes.

A side effect of the human body processing or burning fat is your liver produces byproducts called ketones, which have chemical similarities to alcohol.  When your liver produces ketones a portion of them enter your blood stream and on a micro level are expelled from the body in your breath through your lungs. Unfortunately, the breathalyzers used in Oklahoma can be tricked into not distinguishing ketones in your breath: isopropyl alcohol from ethyl alcohol, which is present in alcoholic drinks. This chemical difference that is not detected in breathalyzer tests can result in unduly high BAC readings on a DUI breath test, which can lead to an unfounded DUI charge.

Ketosis that simulates an unduly high BAC can form the basis for a DUI defense as well as produce other physical symptoms that mirror “drunk” or impaired behavior: confusion, poor coordination; and even the “smell” of alcohol on one’s breath. Understanding and being able to explain a legitimate basis for the outward effects caused by ketones in the body can result in a strong DUI defense.

  1. Top DUI Defense No. 9: Your BAC was on the Rise

Another effective DUI defense is “rising blood alcohol”. There is nothing illegal in drinking before driving, what is illegal is being impaired when you drive. Your DUI chemical test could give a false positive, if your blood alcohol level is still rising after your DUI stop. In fact, your BAC could rise above the legal limit during your DUI Field Sobriety Tests or the investigation itself. The law dictates the only BAC that matters is when you were actually driving. This can lead to a solid defense to a DUI charge based on BAC.

  1. Top DUI Defense No. 10: Mouth Alcohol Causes False BAC Results

Elevated BAC results can be a defense to DUI charges based on a BAC of .08 or higher. Additionally, officers must observe a fifteen-minute deprivation period before administering the Oklahoma DUI breath test. This observation period is to ensure you do not consume anything containing alcohol, including: drinks, medicine, or mouth spray.

These “mouth alcohols” can produce a falsely high BAC breath test result. Additionally, the arresting officer must ensure you do not burp or regurgitate during the observation period. Any of these can cause the alcohol in your stomach into your mouth causing “residual mouth alcohol,” which is a common defense to DUI charges.

The accuracy of Oklahoma DUI breath testing equipment, such as the breathalyzer relies on the measure of “deep lung air.” However, if there is any alcohol in your mouth it mixes with air in your lungs, which will cause your blood alcohol content (“BAC”) to have an exaggerated result for your BAC.


When facing a DUI, APC, or similar charge, it is important to know your chosen DUI defense lawyer is versed in all the defenses available to you and your case. Your driver’s license, your future, and your freedom depend on experienced DUI defense. Hopefully, the Top Ten Defenses for Oklahoma DUI charges will help you fight your case.    

Experienced DUI Defense Lawyer in Oklahoma

Contact CANNON & ASSOCIATES in Oklahoma City for your DUI or APC defense. You have the right to the presumption of innocence. John Cannon is a Fierce Advocate for every client and will use his experience and respected reputation to do everything possible to reach the best possible outcome in your DUI or APC case. A conviction for DUI or APC may have long lasting effects and penalties. John has been recognized as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association.

Contact CANNON & ASSOCIATES today if you have been charged with DUI, AP, Aggravated DUI, DWI, or DUI under 21 in Oklahoma. CANNON & ASSOCIATES has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of criminal charges in Oklahoma, including DUI, evidenced by John receiving the highest possible AVVO rating – 10 (superb). Call our office at (405) 657-2323 for a free confidential consultation and case evaluation.

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