In 1999 the organization initiated the OCDLA List Serve. Think of the List Serve as a resource of a 400+ person law firm that specializes in criminal law. Since its inception, over 100,000 messages have been posted. It is not unusual for a member, who is in a jury trial, during a recess or lunch break, to post an emergency request for assistance on an pressing issue and to receive case law cites and statutory authority before court reconvenes, to help win the issue! Nor is it unusual for a member to ask for a "scouting report" on a judge or district attorney in a county they have a case pending and are not familiar with the judge or district attorneys usual routine.

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**The email posts on the OCDLA List Serve are intended for current, approved OCDLA members only. Any transmission or disclosure of these email posts outside of the OCDLA List Serve could result in removal from the OCDLA List Serve and/or OCDLA membership revocation.

HERE ARE A FEW RECENT NUGGETS FROM THE LISTSERVE:

1. Question: A fellow OCDLA member was retained to represent DUI client. Client allowed the 15 day hearing request deadline to elapse prior to consulting with attorney. Attorney reviewed the intoxilyzer video from the jail and has found multiple problems, including no deprivation period. What is the best procedure to recover clients driving privileges?

Response #1:I think the only real challenge at this point is to take it up on 15 days being too short and thus a due process violation. Many persons pay cycle is every thirty days and that is the old rule ( 30 days ) and since no money means no lawyer the 15 day rule is unreasonably short. Perhaps the shortest time limit in our law. And it applies to the unsophisticated

Response #2:You can still file a DC appeal and argue the above suggested points

Response #3: You probably won't do any good with the Due Process argument.   Service of the notice would be a little better, depending on how they served him with the Officer's affidavit and notice of revocation.  Client can do the request for hearing  himself, and while that information can be found on the Officer's Affidavit, it is in small print on the back, or at the bottom on the front depending on the type of affidavit.

**ALL RESPONSES WERE WITHIN 10 MINUTES

2. Question:I have a brief due this afternoon and had a case saved in my email that was directly on point. Of course my desktop crashes this afternoon as i was searching for said email!
Issue: ADA tries to dismiss case without prejudice AFTER prelim has begun. Then tries to exile later. Case said can't do that unless more evidence that couldnt be reasonably available at first prelim. Any help?

Response#1:smith and jones and nicodemus are all cases from 70's or 80's involving refiling. Am in ct so I don't have cites

Response#2: Nicodemus & Harper

HARPER v. DISTRICT COURT OF OKLAHOMA COUNTY
1971 OK CR 182
484 P.2d 891
Case Number: A-16476
Decided: 04/21/1971
Oklahoma Court of Criminal Appeals

AND

NICODEMUS v. DISTRICT COURT OF OKLAHOMA COUNTY
1970 OK CR 83
473 P.2d 312
Case Number: A-15870
Decided: 06/24/1970
Oklahoma Court of Criminal Appeals

Hope this helps.

Response#3: also jones v. State, 481 P.2d 169

Response #4: I don't know of a case directly preventing the state from seeking dismissal of charge prior to ruling on demurrer.  I'd resort to the following:

Title 22 §815 provides that "The court may either on its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes."

Title 22 §817 states: "An order for the dismissal of the action, as provided in this article, is not a bar to any other prosecution for the same offense."

Dismissal must be accompanied by an order setting forth the reason for dismissal which is in furtherance of justice, in order for the case to be refiled.Taylor v. State, 531 P.2d 1060 (Okl.Cr. 1975)

 Defense argument at PH would be that it is not in furtherance of justice to dismiss because of the Nicodemus/Jones doctrine which requires the state to present everything at one PH. State is attempting an end run.

"If the State has sufficient evidence to bring an accused to trial, it should be prepared to offer such at one preliminary examination and not rely on bolstering its case at a subsequent preliminary examination, if necessary. It is dilatory to present evidence on an installment basis at different preliminaries. Let the State present its case at the preliminary and be done with it. If it is insufficient, then the prosecution is at an end unless new evidence becomes available or other good cause is shown. Not only is refiling without cause unnecessarily burdensome to our overcrowded courts, but it may constitute harassment of an accused." Jones v. State, 481 P.2d at 171

  3. Question:Defendant is sentenced to DOC time and ordered to pay restitution and costs upon release, no paper time. He gets out and doesn't pay. State files application for contempt citation, he is found guilty and sentenced to 90 days and ordered to pay costs and resitution when he is released. He gets out and doesn't pay. State files a NEW application for contempt citation. Is he at risk for a six month sentence over and over, is this a new contemptuous act, or has he purged the contempt once he has done six months?

Any thoughts appreciated.

Response#1:Each failure to comply with the court's order to pay is a new act of contempt.   The old action or previous act is considered over when sentenced.  Thus, each act after is a new action of contempt.  If he has any time left on parole, they can theoritically file a Mtn to Revoke on any time left and not service regardless of the DOC discharge policy.

Response #2:It would seem to me that if the first contempt citation alledged failure to pay court costs that a second citation would be barred. If the first citation alledged a failure to make particular payment they May be able to proceed with another application concerning different payment

Response #3: I call BS.  Your judge never heard of Rule 8?  District judges have to do what the Court of Criminal Appeals says.  There is no contempt.  I've dealt with the revolving door before.  Attached is a PDF of what OCCA had to say about it. 

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