Felony DUI after McGirt may be a thing of the past for Tribe members in Oklahoma. As many of us know the United States Supreme Court recently ruled on the now famous case of McGirt v. State of Oklahoma. The case dealt with major crimes committed by Tribe members that occurred on Tribal lands. The tribal lands in question encompass the majority of Northeast Oklahoma including Tulsa County. The gist of the argument is that most of Eastern Oklahoma remains part of Native American lands belonging to the Five Civilized Tribes. The successful argument is that Congress never disestablished this land as part of the Oklahoma Enabling Act.
What’s It All Mean
In essence the case is an issue regarding subject matter jurisdiction. In McGirt the plaintiff successfully argued that the crime he is said to have committed is a major crime. He is also of Native American descent and the crime was committed on Tribal lands. As a result the State of Oklahoma had no jurisdiction to hear the case. The Supreme Court explained that in the case of a major crime committed on Indian land by an Indian proper jurisdiction is in Federal Court or Indian Court. McGirt won his case and the State of Oklahoma was forced to vacate his conviction and dismiss the charges.
Felony DUI Charges Against Tribe Members
Under most circumstances a first time DUI is charged as a misdemeanor offense. This is the case unless there are certain things about the crime that enhance a first offense DUI to a felony. Those may involve death or bodily injury or a few other aggravating circumstances. But if you have been charged with a second DUI and it occurred within ten years of your first DUI its going to be charged as felony drunk driving.
In a felony DUI after McGirt the State of Oklahoma no longer has jurisdiction over your case so long as you’re an Indian and the DUI took place on Tribal lands. This means the case must be dismissed and refiled in Federal Court or in Indian Court under the Tribal Code.
DUI in Tribal Court
As a criminal defense attorney practicing in Okmulgee Creek tribal court I can tell you the tribe doesn’t have a charge of felony DUI. Rather all DUI cases regardless of how many times you been convicted are charged as misdemeanor DUI. So, it’s a fact that you cant be convicted of Felony DUI in Tribal Court. Although the impact of McGirt requires that a DUI felony against a Tribe member committed on tribal land must be dismissed based on subject matter jurisdiction some unscrupulous prosecutors may try to keep your case. They may even offer what they claim are soft sentencing for a felony DUI. But beware, you can do better in Tribal court. If the Court picks up the case, its going to be charged as a misdemeanor DUI as are all DUI charges in Tribal Court
Felony DUI Lawyers in Tulsa
If you’re facing a DUI charge in Tulsa we can help. If you’re facing a DUI charge and you are a member of the Tribe we really want to talk with you. DUI is a serious crime with serious consequences that impacts far more than your wallet. The impact is far reaching, and subsequent DUI convictions are enhanced and made worse by prior convictions. When you are arrested for DUI the clock starts ticking immediately upon the arrest. Certain rights are waived as to driving privileges if you fail to act fast. Call today for a free consultation