We covered earlier on this blog what happened when the Oklahoma Board of Tests for Alcohol and Drug Influence failed to adhere to proper rulemaking procedures when it comes to the use of the Intoxilyzer 8000 breathalyzer device and improperly allowed the executive director of the Board of Tests to engage in what amounted to making his own rules. These problems, in turn, led the Oklahoma Supreme Court and Oklahoma Court of Civil Appeals to invalidate the use of these devices as mechanisms for gathering evidence of intoxication during DUI stops. The impact of this case could affect many drivers in this state who have had their licenses suspended during the time in which these breathalyzers have been used without having proper rules governing that use.

Given the important role that breathalyzer devices play in determining whether a driver is alcohol intoxicated, it comes as no surprise that the Board of Tests would quickly seek to address the concerns of the Supreme Court so that the Intoxilyzer 8000 devices can still be used. This it has done by enacting “emergency rules,” which the state governor has already approved. This stopgap effort, however, is likely not the final word on how and whether these devices can be used by police.

To begin with, the emergency nature of these rules means that they will eventually need to be replaced with permanent rules. Perhaps more significantly, however, is that the emergency rules themselves will almost certainly be subject to challenge in the immediate future.

The essence of the emergency rules is that they are simply an adoption of the rules for Intoxilyzer 8000 devices which the National Highway Transportation Safety Administration uses. While the Oklahoma Supreme Court held that the invalidity of the old Board of Tests rules lay in the lack of any provision for public input in their adoption, according to the Board of Tests the emergency rules do not require any public input. That will come later, they say, when the proposed new permanent rules are adopted.

As we are the firm that discovered these fatal flaws that led to thousands of Oklahoma drivers getting their licenses back, we are now preparing to challenge the validity of these emergency rules on the grounds that the Board of Tests cannot legitimately do what amounts to an “end run” around the normal rulemaking procedure.

Effective DUI defense needs to be comprehensive to be maximally effective. Aside from considering the facts of each individual case, defense attorneys must be able to critically examine the procedures that police officers use during DUI stops and arrests and ascertain whether these officers and the law enforcement agencies they work for are following their own rules. Any breakdown in any one of these areas can mean the difference between keeping your license or having it suspended, or even whether you are convicted of drunk driving or acquitted.