The law acts as a two-sided coin: on one side, you are expected to not only be aware of laws that govern your behavior, such as speed limits and what constitutes an unacceptably high blood alcohol content level (ignorance is not a defense), but also to obey those laws. The consequences for your failure to comply with laws such as those that relate to drunk driving can be both criminal and civil in nature: license suspension, the requirement to have an ignition interlock device installed in your car, fines and even incarceration are all possibilities to contemplate depending on factors like the nature of the charge and whether it is your first or a subsequent violation.

On the other side of this “coin” are the policies and procedures that police and prosecutors must know and follow when enforcing the law against you.

For example, the officer’s pre-stop suspicion that you are intoxicated must be reasonable, field sobriety tests must be performed according to precise standards, and probable cause must exist before an arrest can be made. In earlier posts we have gone into detail on the multi-step process that police need to comply with to make a proper DUI arrest, from initial observation through personal interaction and ultimately to the administration of field breathalyzer tests. The importance of adhering to this process lies in the removal—or at least diminishing of—the possibility that subjective, personal feelings on the part of the police are what led to a drunk driving charge.

In short, for law enforcement to expect you to obey the law, it must first follow its own rules. And in a late September decision, the Oklahoma Supreme Court demonstrated what can happen when it doesn’t.

The case—in which the Hunsucker Legal Group played a significant role on behalf of its client who had lost his driver’s license based in part on the results of a breathalyzer test—turned on the question of whether it was permissible for the state government acting through its agencies to disregard its own rules when it comes to properly approving a device like a breathalyzer for use. In a 7-2 decision, the Oklahoma Supreme Court refused to hear or change the Oklahoma Court of Civil Appeals’ decision that the testing device in question—the simulator attached to the “Intoxilyzer 8000,” currently in widespread use by police in Oklahoma—was improperly approved for use by the Board of Tests for Alcohol and Drug Influence because it failed to follow proper procedures under the Oklahoma Administrative Code (OAC) to create rules covering the device.

The OAC requires that the Board of Tests submit for review by the public and the state legislature the procedures used to calibrate, maintain and operate the Intoxilyzer 8000. This, the Board of Tests did not do, relying instead on passing its own “resolution” to accomplish this purpose without undergoing the review process. The Oklahoma Court of Civil Appeals agreed with the trial court that this was impermissible, and that without valid rules governing its use, the Intoxilyzer 8000 and its attachments cannot have its test results admitted as evidence for an administrative license suspension.

Indeed, until the Board of Tests corrects the problem of not following its own rules, it is now questionable whether Intoxilyzer 8000 test results can be used in criminal DUI prosecutions, as the Hunsucker Legal Group has a case before the Oklahoma Court of Criminal Appeals dealing with the same issue. It may also mean that people who have had their licenses suspended in earlier cases may be able to go back and challenge those suspensions.

The decision of the Oklahoma Supreme Court and Civil Court of Appeals delves deeply into state administrative and constitutional law and may be a classic example of the so-called “technicality defense” in action. What is important for you to know, as a potential target for criminal prosecution or administrative penalties based on a DUI charge, is that the lawyers you choose to protect you need to be prepared and able to defend you on multiple levels—not only based on the facts that existed at the time of your arrest for DUI, but also whether the state is upholding its end of the bargain when it comes to you and it both upholding your relevant legal obligations. To do anything less on your behalf can cost you more than just legal fees.