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Road Law
Potluck 2010

By Jeff McConnell & James Mennella, Attorneys at law

It's time for Road Law's annual potluck of questions and answers. In this issue, we have a random sample of our most frequently asked questions and the answers we gave.

Q. I was having dinner with a friend of mine last night and had a glass of wine with my meal. After dinner, I went back to my truck and rested for eight hours. When I got up, I brushed my teeth, got dressed, and began my trip.

About 20 miles later, I pulled into a weigh station and handed the officer my paperwork. When he gave me my papers back, he asked me to step out of my truck. I asked him if there was anything wrong and he just said to follow him into the weigh station.

When I got inside, he asked me my full name, who I was leased to, and what I was hauling. I gave him all the information he asked for and then he asked me if I'd been drinking. I said, "No, I don't drink and drive."

He asked me when the last time I had any alcohol was. I explained that I had a glass of wine with dinner the night before. Then he asked me to take a Breathalyzer test and I did. When the test came back, he told me that I registered a 0.03 BAC (blood alcohol content). He made an inspection report and told me he was putting me out of service for eight hours.

He then gave me a ticket for "measurable amount of alcohol – 0.02 or greater." What can I do about this ticket?

A. First, you need to notify the appropriate court that you're pleading "not guilty" to the original charge and that you want a trial date set. Once a trial date is set, a "docket" or "case" number is usually assigned to your case and the matter goes to the district attorney (DA) for review and/or recommendation.

When you appear on your court date, you'll usually have an opportunity to talk with the DA before your matter actually goes to trial. If your charge is considered a "first offense" alcohol violation, the DA may recommend amending it to a non-alcohol violation.

If you're lucky enough to have the DA make such a recommendation, you should probably take it and pay fines and costs for the amended charge. Having a conviction of a moving violation appear on your driver abstract is a lot better than having an alcohol conviction.

Q. I recently got a ticket for "failure to obey a traffic control device." I went to court on the matter, and the judge offered to dismiss the charge with no fines if I paid the $25 court costs. I agreed and the judge's clerk stamped my ticket "dismissed."

About two months later, I ran a copy of my driver record and the original charge of "failure to obey a traffic control device" showed up on it. I thought the judge dismissed my ticket, and I still have the original copy of where the judge's clerk stamped it "dismissed." What's going on?

A. Here's what's going on. Yes, the judge did dismiss your ticket. Legally, you were not convicted of the original traffic ticket. But because the judge required you to pay court costs, a copy of the fact that you paid those costs was sent from the judge to the court clerk and then to the state department of transportation.

Unfortunately, most states are now requiring notices of any money paid to a court to be submitted to the local department of motor vehicles.

A better idea would have been to ask the judge to amend your original ticket to a non-moving violation, such as "defective equipment," pay fines and court costs and have the amended, non-moving charge appear on your record. LL

Send any questions or comments regarding transportation law to:
Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City,
OK 73134, call 405-242-2030, fax 405-242-2040, or e-mail