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PHILLIPS & ASSOCIATES Oklahoma Criminal Defense Attorneys

Understanding Repeat DUI

September 1st, 2014

Holiday weekends tend to see an increase in DUI arrests, and this Labor Day weekend, which is also the opening of college football season, is no exception. In fact, as the weekend began, a former Oklahoma senator was arrested for a DUI-related complaint for the third time in a year.

Cal Hobson, who is currently running for public office in a bid for Cleveland County Commissioner, was arrested in Lexington at approximately 8:30 Saturday morning. He was arrested on a complaint of being in actual physical control of a vehicle (APC) while under the influence of alcohol.

Unlike DUI, an APC charge does not require that the person is actually driving a vehicle while under the influence of an intoxicating substance. If an intoxicated or impaired person has “actual physical control” of a vehicle–for example, sitting in the driver’s seat of a parked vehicle with access to the keys–he or she may be charged with APC. Although he or she does not have to be driving to have an alcohol-related charge, the penalties for APC are the same as those for DUI.

Hobson was charged with a misdemeanor DUI offense in 2013, and just a few months ago, he was charged with aggravated DUI and with attempting to bribe an officer to let him off the hook.

Repeat DUI offenses are common, and typically, it is not because those with prior DUI convictions were not punished harshly enough to deter them from drinking and driving in the future. In most cases, repeat DUI offenders are not flagrantly trying to defy law; rather, they are saddled with an addiction that remains untreated.

Certainly, there are those for whom a DUI is a one-time mistake. These people may have had a few drinks and thought they were still okay to drive, or they may have had way too many and suffered from impaired judgment. For people who are not troubled by alcoholism, the punishment of a DUI conviction and its associated penalties may be enough to keep them from drinking and driving again.

For alcoholics and those plagued with addiction, no penalties are severe enough to conquer their demons and deter them from drinking and driving. Mothers Against Drunk Driving (MADD) cites the Centers for Disease Control and Prevention (CDC) in reporting that, on average, a person has driven drunk 80 times prior to his or her first DUI arrest. The National Highway Traffic Safety Administration (NHTSA) reports that approximately one-third of all people arrested for DUI have at least one prior DUI convictions–more than 30 percent are repeat DUI offenders. Additionally, 1 in 8 drivers in fatal DUI accidents have had a prior DUI conviction within the previous three years.

So how do we combat DUI recidivism? Longer jail terms? Stiffer fines? Lengthier license suspension?

Harsher penalties may have some effect on combating DUI, but in all likelihood, these punishments will do little to nothing to curb repeat DUI. Repeat offenders are often fueled by an addiction that compels them to drink and drive despite the penalties they face. Without treating the underlying problem of alcohol or drug addiction, DUI penalties can bring no lasting change.

Tulsa Man Sentenced for Amended Rape Charge

August 28th, 2014

A man initially charged with first degree rape and kidnapping pleaded guilty to amended charges and was sentenced in Tulsa County District Court this week.

Jerry Tyrone Leblanc, 60, was arrested in December 2013 after a 15-year-old girl told police that the man forced her at gunpoint into his vehicle and drove her to a hotel, where he made her drink alcohol before raping her. Leblanc was charged with first degree rape, kidnapping, and possession of a firearm in the commission of a felony.

Things are not always as they seem, though. As the judicial process continued, more evidence came to light which Assistant District Attorney Nick Codding said required prosecutors to amend the charges. Codding would not reveal the information that prompted the change, citing the victim’s age and the nature of the charges.

The state dismissed the firearm possession charge and the kidnapping charge. The first degree rape charge was amended to second degree rape, and prosecutors added a charge of furnishing alcohol to a minor.

Leblanc pleaded guilty to the two remaining charges: statutory rape and furnishing alcohol to a minor.

Second degree rape is punishable by 1 to 15 years in prison (21 O.S. § 1116), and furnishing alcohol to a minor is a felony punishable by a maximum of 5 years in prison (37 O.S. § 538).

In this case, Judge William Musseman sentenced the defendant to 4-1/2 years in prison on each count, with the sentences to run concurrently. These sentences are also to run concurrently with two felony DUI convictions. Leblanc, who has multiple DUI arrests on his record, was given a deferred sentence for one DUI in 2011 and a suspended sentence for another. Because of his arrest, prosecutors filed a motion to accelerate the deferred sentence and a motion to revoke the suspended sentence. All sentences are to run concurrently, and the defendant is given credit for time served.

Because of his second degree rape conviction, the man will be required to register as a sex offender for the rest of his life.

The case is another demonstration of what happens when people jump to conclusions about allegations of a sex crime. Traditional knowledge holds that children don’t lie about rape, but in this case, evidence was strong enough to demonstrate that the accuser did lie. While she is still considered a victim of rape, as the details of the incident were revealed, prosecutors learned that there was no kidnapping, and that the girl was not forcibly raped through force, fear, or use of alcohol to as a means of forcing submission.

Before rendering judgment, the court requires evidence and proof of the allegations. The court of public opinion, however, far too often renders judgment without any facts at all.

 

OKC Police Officer Accused of Sexual Assaults

August 25th, 2014

Earlier this month, an Oklahoma Highway Patrol trooper was named in a lawsuit accusing him of rape. Now, an Oklahoma City police officer has also been accused of sexually assaulting women while on duty. The allegations claim that these men, sworn to protect public safety, instead used their badges and their authority as implements of fear to intimidate women and coerce or force them to perform sex acts.

While Trooper Eric Roberts has not been arrested or charged pending an investigation into the allegations against him, Oklahoma City Police arrested one of their own last week. On Thursday, Oklahoma County District Judge Cindy Truong issued an arrest warrant for Daniel Ken Holtzclaw, 27, indicating that his bail was set at $5 million. Holtzclaw was arrested later that afternoon on complaints of multiple counts of first degree rape, rape by instrumentation, forcible oral sodomy, sexual battery and indecent exposure.

Hotlzclaw is accused of sexually assaulting at least 7 women. Police have taken statements from 6 of those women, but Oklahoma Police Chief Bill Citty says that there may be more victims who have not come forward. Victims are encouraged to call the Oklahoma City police police sex crimes unit at (405) 297-1133.

Reports indicate that Holtzclaw, a 3-year-veteran of the police force, would stop women in traffic stops or as they walked through neighborhoods in northeast Oklahoma City during his 4:00 p.m. to 2:00 a.m. shift. After stopping the women, he would allegedly order them to expose themselves. In some cases, he is accused of fondling or groping the women. In at least one case, he is accused of raping a woman.

The police officer’s alleged victims are all black women aged 34 to 58. The alleged incidents occurred between February and June of this year, and police began investigating Holtzclaw and reviewing his previous traffic stops after one woman filed a complaint in June. The officer was placed on leave immediately upon the June 18 complaint.

The case has received national attention, not only because, if true, it is a case of egregious abuse of power, but also because Holtzclaw is an ex-college football player –an Eastern Michigan linebacker who tried out with the Detroit Lions.

District Attorney David Prater expects that formal charges will be filed this week.

In cases where rape is perpetrated by an on-duty law enforcement officer, the uniform, badge, and service weapon can be considered implements of fear used to threaten and intimidate a victim. First degree rape, which includes rape by force or fear, is punishable by a maximum penalty of life in prison without parole.

 

 

 

 

Ex-Comanche County Official Accused of Sexual Relationship with 14-year-old Boy

August 21st, 2014

The Comanche County director of emergency management was released from his position after being arrested on charges related to the sexual abuse of a 14-year-old boy.

Investigators say the mother of the teen contacted police after she allegedly found a sexual conversation with an adult man in the boy’s Facebook messages. The woman said she became suspicious that something was going on and checked the teen’s account after noticing that her son had unexplained cash.

The boy’s father told reporters that initially, they thought their son was hanging around older “troublemaker” teenagers, but when they checked Facebook, they learned their son had been meeting a much older adult male. In some of the instances, the man offered their son cash or cigarettes in exchange for sexual conduct.

Police were notified of the illicit Facebook conversation, which led them to 61-year-old Clinton Lee Wagstaff, a Comanche County official.

The 14-year-old allegedly told police that he and Wagstaff had an inappropriate relationship between May and July of this year. He said that the two would watch pornography together and masturbate, and that on at least two occasions, there was sexual contact between the man and the teen.

Wagstaff was arrested on multiple felony complaints, including forcible sodomy, rape by instrumentation, online solicitation of a minor, exposing a minor to obscene material, and lewd acts in the presence of a child.

At a court hearing last week, Wagstaff requested a public defender for his case.

If formal charges against Wagstaff are filed for the complaints on which he was arrested, the former director of emergency management faces significant prison time if convicted:

  • Forcible sodomy (21 O.S. § 888): felony, up to 20 years in prison
  • Second degree rape by instrumentation (21 O.S. §1111.1): felony, up to 15 years in prison
  • Soliciting sexual conduct or communication with a minor by use of technology (21 O.S. § 1040.13a): felony, up to 10 years in prison
  • Lewd or indecent proposals or acts to a child under 16 (21 O.S. § 1123): felony, up to 20 years in prison. Both exposing a minor to obscene materials (§ 1123-d)and lewd acts in the presence of a minor (§ 1123-e) are included in this statute.

All of the above offenses requires sex offender registration under Oklahoma law. Soliciting minors online is a Level 2 sex offense that requires registration every six months for 25 years. The remaining offenses are all Level 3 sex crimes that require lifetime sex offender registration. Learn more about Oklahoma sex offender registration requirements.

Doctor Accused in Overdose Deaths Pleads Guilty

August 18th, 2014

Former Oklahoma City doctor William Valuck, 71, made headlines late last year when he was arrested in Texas and charged with nine counts of first degree murder and 73 counts of illegal distribution of a controlled dangerous substance (CDS). Valuck was accused of overprescribing prescription drugs, including highly addictive and powerful narcotic painkillers, and of illegally prescribing drugs without actually physically examining the patients as required by law. Most of Valuck’s patients were prescribed a combination of hydrocodone, a narcotic painkiller; alprazolam, and anti-anxiety drug; and carisoprodol, a muscle relaxer.

Valuck’s murder charges came after eight patients died of drug overdoses–some within only a day or two of receiving a prescription from Dr. Valuck. The ninth charge, which was ultimately dismissed, was related to a traffic fatality in an accident caused by one of Valuck’s patients who was under the influence of prescription drugs.

Last week, the former doctor accepted a plea deal which significantly reduced the penalties he was facing for the first degree murder charges and the multiple drug distribution charges. Valuck pleaded guilty to eight counts of second degree murder, and the remaining charges were dismissed.

He was sentenced to one year in prison for each murder count, bringing the total to 8 years. Because second degree murder is one of Oklahoma’s 85 percent crimes, the former physician will have to spend nearly 7 years in prison before he becomes eligible for parole.

Oklahoma First Assistant District Attorney Scott Rowland told reporters that prosecutors would ordinarily find a sentence of 8 years for 8 homicides much too light. However, given Valuck’s age and the length of time a trial would have taken, eight years could reasonably be considered a life sentence anyway:

“There aren’t very many cases in this world that I would even consider a single-digit sentence for any sort of homicide. Realistically, we’re talking about pleading to most or all of the remaining years that he has left. So, in this case, we felt like eight years in prison was just.

On the flip side, the family gets immediacy, finality. They don’t have to worry about picking up the newspaper every morning for the next few years to see if some appellate court has reversed a jury’s sentence. They don’t have to go through the arduous agony of a jury trial, and perhaps most of all, they get this justice quickly.”

 At the time of his arrest, investigators said that Valuck was the largest prescriber of controlled substances in the state. They said that prior to his arrest in 2013, he was on track to prescribe more than 3.5 million pills, and that his name became so well-known for loose prescriptions that many pharmacies refused to fill his prescriptions.

Rehab Counselor Accused of Lewd Acts, Rape

August 15th, 2014

A Yukon woman has been arrested on complaints of rape and lewd acts with a minor after she allegedly began a sexual relationship with a 15-year-old boy receiving treatment at the Fort Reno Adolescent Drug and Rehabilitation Center.

The Canadian County Sheriff’s Office says that Amy Maschell Thompson, 32, began a relationship with the boy while she was working as a youth guidance specialist for the rehab center. She allegedly initiated the relationship with the boy shortly after she became employed by the facility in February 2014. Although she quit her job in July after only five months’ employment at the center, she is alleged to have continued to have sexual contact with the boy until his mother became aware of the inappropriate relationship earlier this week.

The teen’s mother found Facebook messages between her son and his former counselor after he forgot to log out of his Facebook account on her phone. She  notified law enforcement that the woman had molested her son while he was receiving treatment at the rehabilitation facility.

Investigators say that Thompson admitted to touching the boy on his buttocks and genitals while at the facility and on field trips. They say she also admitted to contacting the boy via Facebook this week to encourage him to sneak out of the house for a sexual liaison at an Oklahoma City hotel. She allegedly told investigators that she provided the boy with alcohol, and when he was drunk, the two had sex.

She was arrested and booked into the Canadian County Jail on complaints of six counts of lewd acts with a child under 16 and one count of first degree rape. She is held on $350,000  bond.

In Oklahoma, no one under the age of 16 may legally consent to sexual activity with an adult. In general, sex with a willing minor aged 14 or older is prosecuted as second degree rape. However, police may be using the boy’s intoxication as grounds to bump up the charge to first degree rape.

There are several factors which cause sexual intercourse to be classified as first degree rape. Among them are the perpetrator’s provision of an “anesthetizing agent” to accomplish the act and the perpetrator’s knowledge that the victim is not fully of what is taking place:

A. Rape in the first degree shall include: . . .

3. rape accomplished where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; or

4. rape accomplished where the victim is at the time unconscious of the nature of the act and this fact is known to the accused; . . . (21 O.S. §1114)

Currently available court records do not indicate that Thompson has been formally charged. If she is ultimately convicted of the crimes for which she is currently held, she faces 5 years to life in prison on the rape complaint and 3 to 20 years in prison for each lewd acts complaint.

Registered Sex Offender Attends Children’s Services at OKC Church

August 11th, 2014

A mother in southwest Oklahoma City is upset after finding out that the church she attends allowed a registered sex offender to participate in a children’s event. The woman says that she observed Dale Robin Hoffert, Jr., in video that her son took at the Children’s Crusade at the church.

Hoffert was convicted of two counts of forcible oral sodomy in 2007 and was given a 10 year sentence with 2 years suspended. He was released from prison in June, and his current residence is listed as Hand Up Ministries, a mobile home park for sex offenders.

The pastor of the church said that Hoffert, the church’s former youth minister, was allowed to participate but was never left alone or unsupervised with any children. He said that his church welcomes all, and that Hoffert has paid his debt to society. The minister said that the church is intended to “help lost souls.”

The angry mother says she does not have a problem with the registered sex offender being allowed to attend the church; however, she feels that it is inappropriate to allow a man with a history of sex crimes against minors to attend and participate in children’s events.

Indeed, Hoffert does have a history of sexual abuse. Not only is Dale Robin Hoffert, Jr., a registered sex offender, but so is his father–and his mother.

Dale Hoffert, Sr., was charged in 1999 with multiple counts of sexual abuse of a child, indecent exposure, child abuse, physically harming a child, and permitting sexual abuse to occur. All counts except one count of sexual abuse of a child were dismissed at the request of the state. He was convicted of child sexual abuse, given a 10-year suspended sentence, and required to register as a sex offender for life.

Thyla Hoffert was charged with permitting sexual abuse to occur. She was given a 5-year deferred sentence and ordered to attend parenting classes. Her attorney filed a motion that she should not be ordered to register under the Oklahoma Sex Offender Registration Act, but that motion was overruled, and she was ordered to register as a sex offender for life.

Publicly available court records do not specify that Dale Hoffert, Jr., was the victim of his parents’ sex crimes. However, it is not uncommon that victims of sexual abuse continue the cycle of abuse as they get older. While most victims of sexual abuse do not grow up to be sex offenders, research shows that as many as 30 percent of sex offenders were victims of sex abuse themselves.

Drive-In DUI Leads to Arrest in OKC

August 7th, 2014

It is better to be silent and thought a fool than to open your mouth and remove all doubt, or the old adage goes. This may be more true in speaking with police than in any other situation. If there is a recurring theme in this blog, it may be that you should never, ever, ever talk to anyone except your lawyer about your case.

In Oklahoma City early Sunday morning, a man was arrested for DUI at a drive-in theater, and while the evidence was stacked pretty highly against him already, he chose to “open his mouth and remove all doubt.”

According to reports, Curtis Lorenzo Russell, 33, was attempting to leave the drive-in with his girlfriend, but along his way out, he hit multiple vehicles, apparently not noticing and continuing until he finally stopped after rear-ending a vehicle.

Bystanders held Russell for police, and while the multiple accidents and the alleged odor of alcohol, slurry speech, and balance problems were enough to arrest the man for suspicion of DUI, what police say he said to his girlfriend while officers were investigating may have sealed the deal:

“If I hit my gas, I should stop, right?”

No sir, that’s not how driving works.

A passenger of one of the vehicles Russell allegedly hit was transported to a hospital with a neck injury, and Russell was arrested for DUI with injury accident.

Russell also had an outstanding warrant for leaving the scene of an accident in Canadian County. He has prior convictions for possession of cocaine, possession of marijuana, illegal possession of valium, and DUI.

From all indications, police had enough evidence of probable cause to arrest Russell for DUI, but his words only add to the evidence against him. When a person is read his or her Miranda rights after an arrest, the arrestee is informed that whatever he or she says can and will be used against him or her in court. This is not an empty threat, and it is important that people understand that this right to silence applies not only after an arrest, but also before. Saying things like, “I only had two beers,” will just give evidence for an arrest. It won’t convince police that you haven’t had too much to drink.

Similarly, saying things like, “I thought she was 18,” or “I know she’s young, but we only fooled around a little–we didn’t have sex,” are enough for a second degree rape or lewd acts with minors arrest. Both of those offenses are felony sex crimes requiring lifetime sex offender registration.

You may think you are clearing things up with police. You may feel like your statements are demonstrating your innocence or mitigating the offense. Nothing could be further from the truth. Keep your mouth shut and let police think you look guilty; don’t open your mouth and remove all doubt.

Del City Man Faces Federal Assault Charge

August 4th, 2014

A high speed chase from Tinker Air Force Base resulted in a federal assault charge for a Del City man.

According to the United States Attorney’s Office for the Western District of Oklahoma, James Williams, 60, was charged with assaulting a federal officer with a dangerous weapon after he nearly hit a Senior Airman with his SUV as he attempted to flee the base.

The press release indicates that, on June 26, Tinker AFB law enforcement responded to a call of a man acting suspiciously, and when they attempted to pull him over, he tried to get away, leading officers on a high speed chase. Prosecutors say that when the airman tried to close a gate to prevent the suspect from leaving the base, Williams accelerated toward her, almost striking her with his vehicle.

Williams allegedly led Tinker law enforcement and Oklahoma Highway Patrol troopers on a chase in which the vehicles reached speeds upwards of 100 miles per hour. Williams was identified as the owner of the vehicle involved in the chase, and he was arrested three days later.

Typically, assault and battery cases are tried in the state courts. However, assault which occurs on federal property or involves a federal officer falls under the jurisdiction of the United States government.

Assaulting a federal officer is found in the United States Code in 18 U.S.C § 111. In this statute, it is a federal felony to “assault, resist, oppose, impede, intimidate, or interfere with” any officer or employee of the United States government or its agencies while that officer or employee is performing his or her duties or because of the performance of those duties. This statute also pertains to the assault of former federal officers or employees when the assault is committed in relation to the person’s duties during his or her time of service.

The penalties for assault of a federal officer depend on certain factors of the offense:

  • Assault that does not include physical contact carries a maximum penalty of one year in prison
  • Assault that occurs during the commission of another felony or which involves physical contact with the federal officer carries a maximum penalty of 8 years in prison
  • Assault of a federal officer with a dangerous or deadly weapon or assault which inflicts bodily injury brings a maximum sentence of 20 years in prison

Federal cases that occur in the metro area are prosecuted by United States attorneys in the United States District Court for the Western District of Oklahoma in Oklahoma City. The Western District of Oklahoma is the largest judicial district in the state, representing 40 of the state’s 77 counties.

Oklahoma also has federal courts for the Northern and Eastern districts.

The United States District Court for the Northern District of Oklahoma is based in Tulsa and covers the following counties: Craig, Creek, Delaware, Mayes, Nowata, Osage, Ottawa, Pawnee, Rogers, Tulsa, and Washington.

The United States District Court for the Eastern District of Oklahoma is based in Muskogee and covers the following counties: Adair, Atoka, Bryan, Carter, Cherokee, Choctaw, Coal, Haskell, Hughes, Johnston, Latimer, Le Flore, Love, Marshall, McCurtain, McIntosh, Murray, Muskogee, Okfuskee, Okmulgee, Pittsburg, Pontotoc, Pushmataha, Seminole, Sequoyah, and Wagoner.

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