Municipal courts not of record

1. Municipal courtsnot of record Oklahoma Highway Safety Office Annual Forum and Impaired Driving Prevention Summit March 21, 2013 Patrick Boulden, City Attorney, Bixby, Oklahoma

2. NHTSA RECOMMENDATION Establish and adhere to strict policies on plea negotiations and deferrals in impaired driving cases and require that plea negotiations to a lesser offense be made part of the record and count as a prior impaired driving offense.

3. What is a Court Not of Record? • In common law jurisdictions, a court of record is a trial court in which a court clerk or a court reporter takes down a record of proceedings. • That written record (and all other evidence) is preserved at least long enough for all appeals to be exhausted. • In courts not of record, oral proceedings are not typically recorded and the authority (i.e., jurisdiction) of the court is limited. • The parties can and commonly do appear without lawyers. Common examples: most small claims courts, traffic courts, a justice of the peace courts.

4. Oklahoma’s Constitution §17. Prosecution by Indictment or Information – Preliminary Examination— No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint. Okla. Const. art. II, § 17

5. Prosecutions without Indictment or Information Section 231 Submission of Complaint and Endorsement of District Attorney In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant the complaint must be submitted to the district attorney, or drawn by him and indorsed as follows: "I have examined the facts in this case and recommend that a warrant do issue", and then filed with the court. If the action be brought without such endorsement the complaining witness must file with the court a bond to be approved by the court in a sum not less than Fifty Dollars ($50.00), conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so endorsed by the district attorney. 22 O.S.2011, Section 231 R.L.1910, § 6176.

6. Municipal Courts Not of Record--Courts of Limited Jurisdiction-- • If the judge is not licensed as an attorney, then the maximum fine is $50 and a defendant may not be jailed except for nonpayment of fines and costs. • If judge is not licensed as an attorney, but has complied with statutory education requirements, the maximum fine that can be imposed is $500and a defendant may not be jailed except for nonpayment of fines and costs. • 11 O.S.2011, Section 27-104. • (continued)

7. Municipal Courts Not of Record-Courts of Limited Jurisdiction- (cont.) • If the judge is a licensed attorney, then the greatest penalties that may be imposed are as follows: • Maximum fines for speeding or parking offenses are limited to $200. • Maximum fine or deferral fee in lieu of a fine for alcohol-related or drug-related offenses is limited to $800. • Maximum fine or deferral fee in lieu of a fine for all other offenses is $750. • (continued)

8. Municipal Courts Not of Record-Courts of Limited Jurisdiction- (cont.) • Maximum imprisonment for any offense (except as noted below) is 60 days. • Maximum penalty for pretreatment of wastewater and stormwater pollution offenses is $1000 and/or 90 days imprisonment . • Caveat: A municipal ordinance may not impose a penalty which is greater than that established by statute for the same offense. • 11 O.S.2011, Section 14-111.

9. Consider NHTSA Recommendation Part One:“Establish and adhere to strict policies on plea negotiations and deferrals in impaired driving cases…” Pros Cons • Uniform substance abuse treatment of impaired drivers • Impaired drivers can be assured of equal treatment state wide • Could restrict prosecutor discretion • May not take into consideration unique facts of a case • May not consider limited municipal resources • Probation options are not uniform state wide

10. Common Conditions Used in Pleas Negotiations(Deferred or Continued Sentences) • Compliance with requirements of a alcohol and drug substance abuse evaluation and Assessment 47 O.S. 11-902 • Ordered to attend a drunk driving Victim Impact Panel (VIP) • Ordered to attend an alcohol and substance abuse DUI school • Ordered to perform a certain number of Community Service hours • Required to attend a certain number of Alcoholics Anonymous meetings • Must not violate any federal, state or municipal law while on probation

11. Consider NHTSA Recommendation Part Two:“… require that plea negotiations to a lesser offense be made part of the record and count as a prior impaired driving offense.” Pros cons • Eliminates multiple “non-predicate” impaired driving offenses • Will allow prosecution of more felony offenses • Will require detailed records of plea • Offenders will be less likely to pled to a lesser offense • May result in more deferred sentences • May result in demands for more jury trials and higher transactional costs

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