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What is a felony
A felony is a crime which carries a punishment of at least one year and one day in jail.
If I am innocent, why do I need a lawyer?
Innocent people do get accused of committing crimes every day. Also, people who may have committed one crime often get accused (sometimes wrongfully) of committing additional, and more serious crimes. As the accused, you have a constitutional right to counsel. You are always better off having a lawyer learn about the accusation, discuss it with you, and develop a strategy for responding to the charge.
Even if you wholeheartedly believe you are innocent, NEVER EVER NEVER talk to the police, investigator, prosecutor until you have legal counsel...Don't take my word for it, listen to the thousands of people wrongfully convicted and sitting in jail.
If you think you are being investigated or have be asked to "come in and talk" contact us here first. Learn more about the criminal defense process here, or learn more about our Oklahoma criminal defense attorneys here.
What is the potential range of punishment for drug trafficking in Oklahoma?
Oklahoma is known to be one of the harshest states for punishing those charged with trafficking illegal drugs. To most "trafficking" means a large mastermind intent to distribute illegal drugs to others - unfortunately, Oklahoma defines "trafficking" on weight of the drugs alone...and the threshold weight which triggers the trafficking punishment is so small that it can easily be actually intended for personal use.
At the present time the minimum range of punishment for trafficking illegal drugs is as follows:
1: Cocaine - minimum 10 years to life, fines of $25,000 - $500,000. (greater weight/priors carries higher minimum and fines)
2: Marijuana - minimum 4 years to life, fines of $25,000 - $500,000. (greater weight/priors carries higher minimum and fines)
3: Meth - minimum 4 years to life, fines of $25,000 - $500,000. (greater weight/priors carries higher minimum and fines)
The really bad news is that there are no "earned credits" available. This means the person convicted of trafficking will serve at least 90% of the actual sentence. If the actual weight of the drugs is significant or the defendant has prior convictions then the minimum time to serve could be up to 20 years.
If you are charged with trafficking illegal drugs in Oklahoma then it is crucial that you contact an aggressive drug trafficking defense attorney well versed in sentencing pitfalls and complex search and seizure laws.
To learn more about Oklahoma criminal defense law click here, click here to contact us, or click here to learn more about our Oklahoma criminal defense attorneys.
What is a "consent search"?
A consent search is a search conducted with the permission of the person having authority over the premises or property searched. Searches conducted with consent are effective without a warrant and in the absence of probable cause. If the state can prove that consent to the search was voluntarily given, there is no reason to prove either that the searchers possessed a warrant or that probable cause existed for the search.
The criminal courts in Oklahoma have ruled that consent searches are both as an exception to the warrant requirement and as a waiver of the right to demand a warrant to conduct the search. Whether the consent was given by the defendant challenging the search, or by a third person, it must be “voluntary” to be effective. “Voluntariness” does not require that the consent be “knowing” in the sense that a person was aware of the right to refuse to consent to the search. Rather, the controlling question is whether, considering the “totality of the circumstances,” the consent was voluntary. Factors to be considered are: (1) the existence of detention; (2) an awareness of the right to refuse; (3) a perception that the search is inevitable irrespective of the giving of consent; (4) physical or mental impairment; (5) coercion; (6) a “rational” motive to consent; and (7) the time of giving consent.
If you have been charged with a crime after a consent search, read more about Oklahoma criminal defense law here, click here to contact us to discuss the legalities of the search, or click here to learn more about our Oklahoma criminal defense lawyers.
Can a traffic stop continue after I've been given a ticket or warning?
Complicated answer - Yes, only under certain conditions.
In order to continue the encounter after a warning or ticket, there generally has two be one of two things happen: (1) the law enforcement officer had reasonable articulable suspicion of other crimes to justify prolonging the traffic stop for further investigation; or, (2) the driver continued the encounter consensually. "A driver must be permitted to proceed after a routine traffic stop if a license and registration check reveals no reason to detain the driver unless the officer has reasonable articulable suspicion of other crimes or the driver voluntarily consents." See State v. Goins, 2004 OK CR 5, 84 P.3d at 770.
Consensual encounters are not Fourth Amendment seizures since they involve the mere voluntary cooperation with an officer’s non-coercive questioning. In the context of traffic stops, the Supreme Court has held: "The police may detain a driver longer than necessary for the initial stop with consent." See State v. Goins, 2004 OK CR 5, ¶ 17, 84 P.3d 767, 770.To determine whether an encounter was consensual, courts consider if a reasonable person would have felt free to leave considering the totality of the circumstances. Id. at ¶ 18, 84 P.3d at 770. A “consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer.” Id. at ¶ 20, 84 P.3d at 771 quoting United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). Applying this test, a “traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” Id.*6 Coffia v. State, 2008 OK CR 24, ¶ 14, 191 P.3d 594, 598. And, the Supreme Court has ruled that an officer is not required to inform a suspect that he did not have to respond to his questioning or that he was free to leave. Therefore, an unlawful detention occurs only when the driver has an ‘objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her own way. West, 219 F.3d at 1176-77.
If you have been charged with a crime after a traffic stop, click here to learn more about Oklahoma criminal procedure and your legal rights, click here to contact us, or click here to learn more about our Oklahoma criminal defense attorneys.
How long can a traffic stop last?
In this sense, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” Id., 135 S.Ct. at 1614. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id.
The United States Supreme Court has recognized that, in addition to issuing a traffic citation, “an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop’ ” like “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id., 135 S.Ct. at 1615 (quoting Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 837, 160 L. Ed. 2d 842 (2005) ). Unlike a dog sniff, which is a measure aimed at detecting criminal wrongdoing, the ordinary inquiries incident to a traffic stop are aimed at ensuring that vehicles on the road are operated in a safe and responsible manner. Id. Investigations and actions unrelated to the traffic stop—like questioning and a dog sniff—which do not lengthen the roadside detention are permissible under the Fourth Amendment. Id., 135 S.Ct. at 1614. In this sense, an officer “may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id., 135 S.Ct. at 1615.
If you have been charged with a crime as the result of a traffic stop, learn more about criminal law and procedure here, click here to contact us, or click here to learn more about our oklahoma criminal defense attorneys.
Can the police stop any driver for any reason?
Every person has a right under both the United States and Oklahoma constitutions to be free from unreasonable searches and seizures. Alba, 2015 OK CR 2, ¶ 5, 341 P.3d at 92 (citing U.S. Const. amend. IV; Okla. Const. art. 2, § 30). A traffic stop is a seizure under the Fourth Amendment. McGaughey v. State, 2001 OK CR 33, ¶ 24, 37 P.3d 130, 136. The scope and duration of such a seizure must be related to the stop and must last no longer than is necessary to effectuate the stop’s purpose. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968); McGaughey, 2001 OK CR 33, ¶¶ 24 and 27, 37 P.3d at 136-37. If the length of the investigative detention goes beyond the time necessary to reasonably effectuate the reason for the stop, the Fourth Amendment requires reasonable suspicion that the person stopped has committed, is committing or is about to commit a crime.
Thus, for the police office to legally stop a vehicle he must have probable cause to believe that a traffic violation had occurred. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996); Dufries v. State, 2006 OK CR 13, ¶ 8, 133 P.3d 887, 889. This is so regardless of the officer’s subjective motivation for the stop. Id., 2006 OK CR 13, ¶ 9, 133 P.3d at 889 (“Subjective intentions play no role in the ordinary probable-cause Fourth Amendment analysis.”).
There are two significant remedies available to a driver who has been unlawfully pulled over: (1) any evidence of criminality (most commonly drugs or evidence of intoxication such as a breath test) discovered as a result of the unlawful stop will be excluded at trial; and, (2) the driver may seek damages in civil court for violations of his/her constitutional rights.
The law of search and seizure is complex and contains many many different laws, court rulings, and exceptions. If you have been arrested and charged with a crime as the result of a traffic stop read more about criminal law here, or click here to contact us, or click here to learn more about our legal team.
What evidence can be presented at preliminary hearing?
In Oklahoma, all persons charge with a felony have the right to a preliminary hearing before proceeding to a formal jury trial. At the preliminary hearing, the magistrate has the authority to limit the proposed testimony under 22 O.S. 258, which provides: “A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of: (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime”
My ex-spouse is refusing to allow me visitation with our child because I have not paid him/her child support.
In Oklahoma, one parent cannot prohibit the other parent from seeing the child due to the lack of child support. Child support and child custody are not related. Therefore, even if one parent is behind on child support, she/he is still entitled to their court-ordered visitation.
My ex-spouse has threatened to move away with the children. Could he/she actually move away without my knowing?
Oklahoma child custody laws require that a custodial parent who is planning to move must always give a 60 day written notice to the noncustodial parent. This notice must state the parent’s intent to relocate, the new location, the date of relocation, and a statement stating the other party may oppose within 30 days. If the noncustodial parent opposes the relocation, then the court will look at several factors such as the motive of relocating, whether the move will enhance the quality of the life of the child, and the age and needs of the child. The relocating parent must show that the move is in good faith. This helps prevent a parent that wants to move just to spite the noncustodial parent. In this case, they will not be able to show the move is in the best interest of the child. However, if the relocation is legitimately for work-related reasons, the moving parent would most likely not have a problem with the move.