US Laws, Codes, Statutes & Cases

OKLAHOMA STATUTES

TITLE 22.

CRIMINAL PROCEDURE

_____

§221.  Title of code.

This chapter shall be known as the code of criminal procedure of the State of Oklahoma.

R.L.1910, § 5535.

§222.  Indictment or information necessary, except when.

Every public offense must be prosecuted by indictment, or information except;

1.  Where proceedings are had for the removal of civil officers of this state.

2.  Offenses arising in the militia, when in actual service, and in the land and naval forces in time of war, or which the state may keep, with the consent of Congress in time of peace.

3.  Offenses tried in justices' and police courts in cases concerning which lawful jurisdiction, without the intervention of a grand jury, is or may be conferred upon said courts.

R.L.1910, § 5536.  

§223.  Code not retroactive.

No part of this code is retroactive unless expressly so declared.

R.L.1910, § 5537.  

§224.  Construction of words.

Unless when otherwise provided, words used in this code in the present tense include the future as well as the present.  Words used in the masculine comprehend as well the feminine and neuter.  The singular number includes the plural, and the plural the singular. And the word person includes a corporation as well as a natural person.

R.L.1910, § 5538.

§22-4A.  "Court", "courts of the state", "courts in the state" and "court clerk" defined.

As used in Title 22 of the Oklahoma Statutes, the term "court" or "courts of the state" or "courts in the state" shall mean the district court of the State of Oklahoma as defined in Section 91.1  of Title 20 of the Oklahoma Statutes, and the term "court clerk" shall mean the clerk of the district court, except where a contrary intention plainly appears.

Added by Laws 1991, c. 238, § 33, eff. July 1, 1991.

§225.  Writing includes printing.

The term writing includes printing.

R.L.1910, § 5539.  

§226.  Oath includes affirmation.

The term oath includes an affirmation.

R.L.1910, § 5540.  

§228.  Application of statutes.

This chapter applies to criminal actions and to all other proceedings in criminal cases which are herein provided for.

R.L.1910, § 5542.  

§229.  Common law prevails, when.

The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure, practice and pleadings of the common law.

R.L.1910, § 5543.  

§2210.  Criminal action defined.

The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.

R.L.1910, § 5544.  

§2211.  Prosecution is by state against person charged.

A criminal action is prosecuted in the name of the State of Oklahoma as a party, against the person charged with the offense.

R.L.1910, § 5545.

§2212.  Party defendant.

The party prosecuted in a criminal action is designated in this chapter as the defendant.

R.L.1910, § 5546.  

§2213.  Right to speedy trial, counsel and witnesses.

In a criminal action the defendant is entitled:

1.  To a speedy and public trial.

2.  To be allowed counsel, as in civil actions, or to appear and defend in person and with counsel; and,

3.  To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.

§2214.  Former jeopardy.

No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted, except as hereinafter provided for new trials.

R.L.1910, § 5548.  

§2215.  Testimony against one's self  Restraint during trial and prior to conviction.

No person can be compelled in a criminal action to be witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge, and in no event shall he be tried before a jury while in chains or shackles.

R.L.1910, § 5549; Laws 1953, p. 97, § 1.  

§2216.  Jury trial  Exceptions.

No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon final judgment for or against him upon a demurrer to the indictment, or upon a judgment of a police or justice's court in cases in which such judgment may be lawfully given without the intervention of a jury or grand jury.

R.L.1910, § 5550.  

§22-17.  Custody and distribution of proceeds from sale of rights arising from criminal act.

A.  Every person who has been charged, convicted, has pled guilty or has pled nolo contendere to any crime, hereinafter referred to as the defendant, or any other person with the cooperation of the defendant, who contracts to receive, or have any other person or entity receive, any proceeds or profits from any source, as a direct or indirect result of the crime or sentence, or the notoriety which the crime or sentence has conferred upon the defendant, shall forfeit the proceeds or profits as provided in this section; provided, however, proceeds or profits from a contract relating to the depiction or discussion of the defendant's crime shall not be subject to forfeiture unless an integral part of the work is a depiction or discussion of the defendant's crime or an impression of the defendant's thoughts, opinions, or emotions regarding the crime.  All parties to a contract described in this section are required to pay to the district court wherein the criminal charges were filed any proceeds or thing of value which pursuant to the contract is to be paid to the defendant or to another person or entity.  The district court shall make deposit of proceeds received pursuant to this section and direct the county treasurer to make the deposit of those funds in an escrow account for the benefit of and payable to victims of the crime or the legal representative of any victim of the crime committed by the defendant or to repay a public defender office for legal representation during a criminal proceeding.  There is hereby created a lien upon any sum of money or other thing of value payable to anyone pursuant to any contract described in this section, for the purpose of enforcing the forfeiture obligation established herein, which lien may be foreclosed in the same manner as statutory tax liens created by Oklahoma law.  Any person who contracts without fully providing for such forfeiture in compliance with the provisions of this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than Ten Thousand Dollars ($10,000.00) and not to exceed three times the value of the proceeds of the contract, or by imprisonment not exceeding ten (10) years in the custody of the Department of Corrections, or both such fine and imprisonment.

B.  Payments from the escrow account shall be used, in the following order of priority, to satisfy any judgment rendered in favor of a victim or a victim's legal representative, to pay restitution, fines, court costs, and other payments, reparations or reimbursements ordered by the court at the time of sentencing including repayments to a public defender office for legal representation of the defendant and to pay every cost and expense of incarceration and treatment authorized by law as a cost of the defendant.

C.  A victim or the legal representative of a victim must file a civil action, in a court of competent jurisdiction, to recover money against the defendant or the defendant's legal representative within seven (7) years of the filing of the criminal charges against the defendant.  The victims and the legal representative of a victim of the crime shall have a priority interest in any proceeds or profits received pursuant to the provisions of this section.  If no victim or legal representative of a victim has filed a civil suit within seven (7) years from the filing of the criminal charges against the defendant, any money in the escrow account shall be paid over in the following order of priority:

1.  For restitution;

2.  For any fine and court costs;

3.  For other payments ordered in the sentence;

4.  For the costs and expenses of incarceration; and

any remaining money to the Victims' Compensation Revolving Fund.  Upon disposition of charges favorable to the defendant, any money in the escrow account shall be paid over to the defendant.

D.  The district court wherein the criminal charges were filed shall, once every six (6) months for seven (7) years from the date any money is deposited with the court, publish a notice in at least one (1) newspaper of general circulation in each county of the state in accordance with the provisions on publication of notices found in Sections 101 et seq. of Title 25 of the Oklahoma Statutes, notifying any eligible victim or legal representative of an eligible victim that monies are available to satisfy judgments pursuant to this section.

Added by Laws 1981, c. 49, § 1.  Amended by Laws 1995, c. 201, § 1, emerg. eff. May 19, 1995; Laws 1997, c. 133, § 435, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 319, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 435 from July 1, 1998, to July 1, 1999.

§22-18.  Expungement of records - Persons authorized.

Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories:

1.  The person has been acquitted;

2.  The conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction, or an appellate court of competent jurisdiction reversed the conviction and the district attorney subsequently dismissed the charge;

3.  The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction;

4.  The person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested are filed or charges are dismissed within one (1) year of the arrest, or all charges are dismissed on the merits;

5.  The statute of limitations on the offense had expired and no charges were filed;

6.  The person was under eighteen (18) years of age at the time the offense was committed and the person has received a full pardon for the offense;

7.  The offense was a misdemeanor, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the judgment was entered;

8.  The offense was a nonviolent felony, as defined in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction; or

9.  The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person's name or other identification without the person's consent or authorization.

For purposes of this act, "expungement" shall mean the sealing of criminal records.  Records expunged pursuant to paragraph 9 of this section shall be sealed to the public but not to law enforcement agencies for law enforcement purposes.

Added by Laws 1987, c. 87, § 1, emerg. eff. May 14, 1987.  Amended by Laws 1992, c. 151, § 1, eff. Sept. 1, 1992; Laws 1997, c. 397, § 1, emerg. eff. June 10, 1997; Laws 2000, c. 382, § 9, eff. July 1, 2000; Laws 2002, c. 475, § 1; Laws 2003, c. 3, § 17, emerg. eff. March 19, 2003; Laws 2004, c. 272, § 1, eff. Nov. 1, 2004; Laws 2004, c. 406, § 1, eff. July 1, 2004.

NOTE:  Laws 2002, c. 460, § 14 repealed by Laws 2003, c. 3, § 18, emerg. eff. March 19, 2003.

§22-19.  Sealing and unsealing of records - Procedure.

A.  Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information.

B.  Upon the filing of a petition or entering of a court order, the court shall set a date for a hearing and shall provide thirty (30) days of notice of the hearing to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record.

C.  Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed.  If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records.

Any order entered under this subsection shall specify those agencies to which such order shall apply.  Any order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court.  In all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.

D.  Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.

E.  Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, or by the district attorney and only to those persons and for such purposes named in such petition.

F.  Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records.  An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred.  Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.

G.  All arrest and criminal records information existing prior to the effective date of this section, except basic identification information, is also subject to sealing in accordance with subsection C of this section.

H.  Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records.

I.  For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document.

J.  For the purposes of this act, district court index reference of sealed material shall be destroyed, removed or obliterated.

K.  Any record ordered to be sealed pursuant to Section 1 et seq. of this title, if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the tenyear period.

L.  Subsequent to records being sealed as provided herein, the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, or other interested person or agency may petition the court for an order unsealing said records.  Upon filing of a petition the court shall set a date for hearing, which hearing may be closed at the court's discretion, and shall provide thirty (30) days' notice to all interested parties.  If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed.

M.  Nothing herein shall prohibit the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to Section 2608 of Title 12 of the Oklahoma Statutes.

Added by Laws 1987, c. 87, § 2, emerg. eff. May 14, 1987.  Amended by Laws 1999, c. 234, § 1, eff. Nov. 1, 1999; Laws 2002, c. 475, § 2.

§22-19a.  Arrest or charge as result of identity theft - Expungement on motion of court, district attorney or defendant.

Notwithstanding any provision of Section 18 or 19 of Title 22 of the Oklahoma Statutes, when a charge is dismissed because the court finds that the defendant has been arrested or charged as a result of the defendant's name or other identification having been appropriated or used without the defendant's consent or authorization by another person, the court dismissing the charge may, upon motion of the district attorney or the defendant or upon the court's own motion, enter an order for expungement of law enforcement and court records relating to the charge.  The order shall contain a statement that the dismissal and expungement are ordered pursuant to this section.  An order entered pursuant to this section shall be subject to the provisions of subsections D through M of Section 19 of Title 22 of the Oklahoma Statutes.

Added by Laws 2004, c. 406, § 2, eff. July 1, 2004.

§22-19b.  Oklahoma Identity Theft Passport Program.

A.  For purposes of protecting persons who are the victims of identity theft, there is hereby created the "Oklahoma Identity Theft Passport Program".  The Oklahoma State Bureau of Investigation (OSBI) shall administer the Oklahoma Identity Theft Passport Program, prescribe procedures and policies for issuing the identity theft passport consistent with this act, and provide information to law enforcement agencies explaining the program.

B.  A person shall be eligible for an Oklahoma identity theft passport if:

1.  The person has obtained:

a. an order for expungement and sealing of records pursuant to Sections 18 and 19 of Title 22 of the Oklahoma Statutes on grounds that the person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person's name or other identification without the person's consent or authorization, or

b. an order for expungement and sealing of records pursuant to Section 2 of this act from a court that dismissed a charge against the person on such grounds; or

2.  The person has filed an identity theft report with a federal, state, or local law enforcement agency and has submitted a copy of the identity theft report and an identity theft affidavit with supporting documentation to one or more consumer reporting agencies.  For purposes of this act, "identity theft report", "identity theft affidavit", and "consumer reporting agency" shall be defined as provided in The Fair Credit Report Act, 15 United States Code, Section 1681 et seq.

C.  To apply for an identity theft passport the person shall submit to the OSBI a certified copy of a court order for expungement and sealing of records or copies of an identity theft report and identity theft affidavit that have been filed and submitted to a consumer reporting agency.  The OSBI may prescribe other application requirements as deemed necessary.

D.  The OSBI shall issue the identity theft passport unless the OSBI finds reasonable cause not to issue the identity theft passport.  The identity theft passport shall state whether the identity theft passport is issued on the basis of an order for expungement or an identity theft report and affidavit having been submitted to the OSBI.

E.  Upon issuance of an identity theft passport, the OSBI shall notify the Department of Public Safety.  The identity theft passport shall be attached to any records maintained by the OSBI or the Department of Public Safety, including criminal history records for purposes of criminal background checks and law enforcement telecommunications checks.  The record of an identity theft passport shall be sealed except to law enforcement authorities.

F.  The OSBI shall maintain records of identity theft passport requests and issuances and may provide such information to law enforcement agencies upon request of an agency or officer.  Such records in the possession of the OSBI or other law enforcement agencies and officers shall not be public records and shall not be subject to the Oklahoma Open Records Act.

G.  The OSBI may prescribe a reasonable fee for processing applications for identify theft passports by administrative rule.

H.  The OSBI shall design the identity theft passport, which may include picture identification.

I.  An identity theft passport shall be used only for law enforcement purposes, including criminal background checks and similar public safety purposes.  Financial institutions and other private entities are not required to honor an identity theft passport as proof of identity or proof of identity theft.

Added by Laws 2004, c. 406, § 3, eff. July 1, 2004.

§22-20.  Incarceration of single custodial parents - Child placement.

A.  When any person is convicted of an offense against the laws of this state and is sentenced to imprisonment to be served in a county jail or a state correctional institution, the judge of the district court shall inquire whether such person is a single custodial parent of any minor child.  If such person is a single custodial parent, the judge shall inquire into the arrangements that have been made for the care and custody of the child during the period of incarceration of the custodial parent.  If the judge finds that such arrangements are not appropriate or in the best interests of the child, the court shall order the parent to execute the necessary powers of attorney, guardianship, or other appropriate legal documents or legal proceeding to place the child in order to ensure adequate and appropriate care and custody of the child during the absence of the parent.  The parent may place the child with:

1.  The other parent of the child involved, if such parent's rights have not been terminated.  If the custodial parent has custody of the child pursuant to an order of a court in a divorce proceeding, the court having jurisdiction over the divorce proceeding shall determine whether a modification of the custody order placing the child in the custody of the other parent is appropriate and in the best interests of the child.  The court shall notify the sentencing judge whether the custody order has been modified to place custody with the other parent.  If the custody order is not modified, the judge shall order the parent to make other appropriate arrangements for the child;

2.  A relative within the fourth degree when the judge determines such placement to be suitable for the child;

3.  The Department of Human Services in accordance with the rules of the Department for the voluntary placement of children, or a child welfare agency duly licensed or recognized pursuant to the Oklahoma Child Care Facilities Licensing Act; or

4.  Some other individual with the written assent of the court.

B.  When the custody of the child is placed with the other parent pursuant to a modification of a custody order by the court having jurisdiction over the divorce proceeding, the provisions of subsection C of this section shall not apply.  Provided, upon the recommendation of such court, the sentencing judge may require the parent to whom custody is transferred to comply with the provisions of subsections D and E of this section.

C.  1.  Except as provided by subsection B of this section, when the parent proposes to place the child with an individual specified by paragraph 1, 2 or 4 of subsection A of this section, the court shall require a placement investigation and report be made to the court.  The person making the investigation and report to the court shall be a person qualified by training or experience as designated by the court; provided, the court shall give preference to designating an appropriately licensed or certified individual or agency to complete the investigation.  The placement investigation shall include inquiry to determine whether the proposed home is a suitable one for the child and any other circumstances and conditions which may have a bearing on the health, safety and welfare of the child.  The report shall become a part of the files in the case and shall contain a definite recommendation for or against the proposed placement and the reason therefor.

2.  If suitable placement is not found pursuant to the provisions of this subsection, or the single custodial parent refuses or is unwilling to make appropriate arrangements for such child to the satisfaction of the court, the court shall order the district attorney to determine whether a petition alleging the child to be a deprived child is warranted and, if warranted by the facts in the case, to file such petition.  When such petition is filed, the court may issue temporary orders for the care and custody of the child as otherwise provided by Title 10 of the Oklahoma Statutes.  If the child is found by the court to be a deprived child, the provisions of Title 10 of the Oklahoma Statutes related to deprived children shall apply.

D.  Except when the child is found by a court to be a deprived child or as otherwise provided by subsection B of this section, when the child is placed as provided by this section or the period of incarceration of the custodial parent is less than six (6) months, the judge shall transfer matters related to the placement of the child to the judge of the district court having juvenile docket responsibilities and review the placement and circumstances of the child at least once every six (6) months until such time as the child is returned to the parent or the child reaches eighteen (18) years of age.

1.  The person or agency with whom the child has been placed shall submit a report to the judge prior to each review at such time and in such manner as ordered by the judge.

2.  The report shall include but not be limited to a summary of the physical, mental, and emotional condition of the child, the conditions existing in the home or facility where the child has been placed and the adjustment of the child to said home or facility, the child's attendance and progress in school, and any contact or involvement of the child with the courts or law enforcement other than the supervision of the placement of the child by the sentencing judge.

3.  When a change in the placement of the child is desired or proposed by the person or agency with whom the child has been placed, the sentencing judge shall be notified and the placement of the child shall not be changed except with the approval of said judge.  The judge shall approve any subsequent placement of the child as otherwise provided by this section and the person or agency with whom the child is subsequently placed shall be subject to the provisions of this subsection.

E.  Failure to file a report or to notify the judge of a desired or proposed change in the placement of the child shall be deemed to be contempt of court and is punishable as otherwise provided by law.

Added by Laws 1994, c. 215, § 1, eff. Sept. 1, 1994.

§2231.  Who may resist.

Lawful resistance to the commission of a public offense may be made:

1. By the party about to be injured.

2. By other parties.

R.L.1910, § 5556.  

§2232.  Resistance by party to be injured.

Resistance sufficient to prevent the offense may be made by the party about to be injured:

1.  To prevent an offense against his person or his family, or some member thereof.

2.  To prevent an illegal attempt, by force, to take or injure property in his lawful possession.

R.L.1910, § 5557.  

§2233.  Resistance by other person.

Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.

§2234.  Intervention by officers.

Public offenses may be prevented by the intervention of the officers of justice:

1.  By requiring security to keep the peace.

2.  By forming a police in cities and towns, and by requiring their attendance in exposed places.

3. By suppressing riots.

R.L.1910, § 5559.  

§22-34.1.  Peace officers using excessive force - Definition - Adoption of policies and guidelines.

A.  Any peace officer, as defined in Section 648 of Title 21 of the Oklahoma Statutes, who uses excessive force in pursuance of such officer's law enforcement duties shall be subject to the criminal laws of this state to the same degree as any other citizen.

B.  As used in this act, "excessive force" means physical force which exceeds the degree of physical force permitted by law or the policies and guidelines of the law enforcement entity.  The use of excessive force shall be presumed when a peace officer continues to apply physical force in excess of the force permitted by law or said policies and guidelines to a person who has been rendered incapable of resisting arrest.

C.  Each law enforcement entity which employs any peace officer shall adopt policies or guidelines concerning the use of force by peace officers which shall be complied with by peace officers in carrying out the duties of such officers within the jurisdiction of the law enforcement entity.

Added by Laws 1992, c. 146, § 1, eff. July 1, 1992.

§22-34.2.  Reporting incidents of excessive force - Contents of report - Failure to report or making materially false statements.

A.  Any peace officer, except a newly employed officer during such officer's probationary period, who, in pursuance of such officer's law enforcement duties, witnesses another peace officer, in pursuance of such other peace officer's law enforcement duties in carrying out an arrest of any person, placing any person under detention, taking any person into custody, booking any person, or in the process of crowd control or riot control, use physical force which exceeds the degree of physical force permitted by law or by the policies and guidelines of the law enforcement entity, shall report such use of excessive force to such officer's immediate supervisor.

B.  At a minimum, the report required by this section shall include:

1.  The date, time, and place of the occurrence;

2.  The identity, if known, and description of the participants;

3.  A description of the events and the force used.

C.  A copy of an arrest report or other similar report required as a part of a peace officer's duties can be substituted for the report required by this section, as long as it includes the information specified in subsection B of this section.  The report shall be made in writing within ten (10) days of the occurrence of the use of such force.

D.  Any peace officer who fails to report such use of excessive force in the manner prescribed in this section, or who knowingly makes a materially false statement which the officer does not believe to be true in any report made pursuant to this section, upon conviction, shall be guilty of a misdemeanor.

Added by Laws 1992, c. 146, § 2, eff. July 1, 1992.

§22-34.3.  Racial profiling prohibited.

A.  For the purposes of this section, "racial profiling" means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.

B.  No officer of any municipal, county or state law enforcement agency shall engage in racial profiling.

C.  The race or ethnicity of an individual shall not be the sole factor in determining the existence of probable cause to take into custody or to arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.

D.  A violation of this section shall be a misdemeanor.

E.  Every municipal, county, and state law enforcement agency shall adopt a detailed written policy that clearly defines the elements constituting racial profiling.  Each agency's policy shall prohibit racial profiling based solely on an individual's race or ethnicity.  The policy shall be available for public inspection during normal business hours.

F.  If the investigation of a complaint of racial profiling reveals the officer was in direct violation of the law enforcement agency's written policy regarding racial profiling, the employing law enforcement agency shall take appropriate action consistent with applicable laws, rules, ordinances or policy.

Added by Laws 2000, c. 325, § 1, eff. July 1, 2000.

§22-34.4.  Stop or arrest resulting from racial profiling.

Whenever a person who is stopped or arrested believes the stop or arrest was in violation of Section 1 of this act, that person  may file a complaint with the Oklahoma Human Rights Commission and may also file a complaint with the district attorney for the county in which the stop or arrest occurred.  A copy of the complaint shall be forwarded to the arresting officer's employer by the Commission.  The employer shall investigate the complaint for purposes of disciplinary action and/or criminal prosecution.

Added by Laws 2000, c. 325, § 2, eff. July 1, 2000.

§22-34.5.  Human Rights Commission to establish procedures for filing racial profiling complaint - Annual report of complaints.

A.  The Oklahoma Human Rights Commission shall promulgate rules establishing procedures for filing a racial profiling complaint with the Oklahoma Human Rights Commission and the district attorney and the process for delivering a copy of the complaint by the Commission to the employing agency.  The Commission, in consultation with the Governor's Cabinet Secretary for Safety and Security, shall promulgate forms for complaints of racial profiling.

B.  The Commission shall compile an annual report of all complaints received for racial profiling and submit the report on or before January 31 of each year to the Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives.

Added by Laws 2000, c. 325, § 3, eff. July 1, 2000.

§2235.  Persons assisting officers.

When the officers of justice are authorized to act in the prevention of public offenses, other persons, who, by their command, act in their aid, are justified in so doing.

R.L.1910, § 5560.  

§22-36.  Civil and criminal immunity for private citizens aiding police officers - Federal law enforcement officers.

Private citizens aiding a peace officer, or other officers of the law in the performance of their duties as peace officers or officers of the law, shall have the same civil and criminal immunity as a peace officer, as a result of any act or commission for aiding or attempting to aid a peace officer or other officer of the law, when such officer is in imminent danger of loss of life or grave bodily injury or when such officer requests such assistance and when such action was taken under emergency conditions and in good faith.

Every federal law enforcement officer, as defined in Section 99 of Title 21 of the Oklahoma Statutes, while engaged in the performance of official duties as a federal law enforcement officer or when serving as a peace officer for the State of Oklahoma shall have the same immunity from civil and criminal actions as any other peace officer performing official duties within this state.  The State of Oklahoma or any of its political subdivisions shall not assume the liability for or provide the legal representation for any federal law enforcement officer serving as peace officers of the State of Oklahoma.

Added by Laws 1968, c. 362, § 1, emerg. eff. May 9, 1968.  Amended by Laws 1995, c. 240, § 4, emerg. eff. May 24, 1995; Laws 1997, c. 43, § 4, emerg. eff. April 7, 1997.

§2236.1.  Police dog handlers  Civil liability.

Any dog handler as defined by Section 648 of Title 21 of the Oklahoma Statutes who uses a police dog in the line of duty in accordance with the policies or standards established by the law enforcement agency for which he is employed shall not be civilly liable for any damages arising from the use of said dog, except as provided for in the Governmental Tort Claims Act.

Added by Laws 1986, c. 54, § 4, eff. July 1, 1986.  

§22-36.2.  National Park Service rangers - Arrest authority and immunity from suit.

A National Park Service ranger who, in the official capacity as park ranger, is authorized by law to make arrests shall, when making an arrest in this state for a nonfederal offense, have the same legal status and immunity from suit as a state or local law enforcement officer if the arrest is made under the following circumstances:

1.  The Park Service ranger reasonably believes that the person arrested has committed a felony in the presence of the ranger or is committing a felony in the presence of the ranger;

2.  The Park Service ranger reasonably believes the person arrested has committed a misdemeanor that amounts to a breach of the peace in the presence of the ranger or is committing a misdemeanor that amounts to a breach of the peace in the presence of the ranger; or

3.  The Park Service ranger is rendering assistance to a law enforcement officer of this state in an emergency or at the request of such officer or pursuant to a memorandum of understanding between the state or a political subdivision of the state and the United States Department of the Interior National Park Service.

Added by Laws 1996, c. 41, § 1, emerg. eff. April 8, 1996.

§2237.  Distinctive uniforms for police officers  Exceptions.

The governing bodies of the state, county, city or town, as the case may be, may furnish distinctive uniforms for all sheriffs, deputy sheriffs, policemen, town marshals, peace officers and other officers, whose duty is to preserve and enforce public peace.  When uniforms are furnished the sheriffs, deputy sheriffs, policemen, town marshals, peace officers, as the case might be, they are required to wear the same while on duty.  This act shall not apply to detectives and other officers required to wear street apparel.

Laws 1969, c. 188, § 1, emerg. eff. April 17, 1969.  

§2237.1.  Offduty law enforcement officers  Powers and duties Liability.

An "offduty" law enforcement officer in official uniform in attendance at a public function, event or assemblage of people shall have the same powers and obligations as when he is "onduty".

Nothing herein shall impose liability upon the governmental entity, by whom the law enforcement officer is employed, for actions of the said officer in the course of his employment by a nongovernmental entity.

Laws 1980, c. 279, § 1, emerg. eff. June 13, 1980.  

§2238.  Representation of law enforcement officers by district attorney in civil actions resulting from riot activity.

A law enforcement officer who has no criminal action taken, pending or contemplated against him for the identical acts as hereinafter set forth shall be entitled to representation by the district attorney of his district or where the action is filed in a civil action brought against him for actions alleged to have been wrongfully committed by him while performing his official duty of endeavoring to quell a riot or to control civil disorder, whether or not a state of emergency was declared by the Governor at the time. Representation of a law enforcement officer against whom a civil action is instituted on account of alleged wrongful acts by the officer while performing riot quelling or civil disorder controlling functions shall not authorize a district attorney to receive other compensation for legal services than the salary provided by law for his office.

Laws 1970, c. 291, § 1, emerg. eff. April 28, 1970.  

§2239.  Benefits for citizens who aid.

Any citizen who shall be aiding in the maintaining of law and order shall likewise be entitled to the benefits of this act.

Laws 1970, c. 291, § 2, emerg. eff. April 28, 1970.  

§22-40.  Definitions.

As used in Sections 40 through 40.3 of this title:

1.  "Rape" means an act of sexual intercourse accomplished with a person pursuant to Sections 1111, 1111.1 and 1114 of Title 21 of the Oklahoma Statutes; and

2.  "Forcible sodomy" means the act of forcing another person to engage in the detestable and abominable crime against nature pursuant to Sections 886 and 887 of Title 21 of the Oklahoma Statutes that is punishable under Section 888 of Title 21 of the Oklahoma Statutes.

Added by Laws 1982, c. 220, § 1.  Amended by Laws 1991, c. 112, § 1, eff. Sept. 1, 1991; Laws 2000, c. 370, § 1, eff. July 1, 2000; Laws 2002, c. 466, § 1, emerg. eff. June 5, 2002.

§22-40.1.  Victim of rape or forcible sodomy - Notice of rights.

Upon the preliminary investigation of any rape or forcible sodomy, it shall be the duty of the officer who interviews the victim of the rape or forcible sodomy to inform the victim, or a responsible adult if the victim is a minor child or an incompetent person, of the twenty-four-hour statewide telephone communication service established by the Department of Mental Health and Substance Abuse Services for victims of sexual assault pursuant to Section 3-314 of Title 43A of the Oklahoma Statutes and to give notice to the victim or such responsible adult of certain rights of the victim.  The notice shall consist of handing such victim or responsible adult a written statement in substantially the following form:

"As a victim of the crime of rape or forcible sodomy, you have certain rights.  These rights are as follows:

1.  The right to request that charges be pressed against your assailant;

2.  The right to request protection from any harm or threat of harm arising out of your cooperation with law enforcement and prosecution efforts as far as facilities are available and to be provided with information on the level of protection available;

3.  The right to be informed of financial assistance and other social services available to victims, including information on how to apply for the assistance and services;  

4.  The right to a free medical examination for the procurement of evidence to aid in the prosecution of your assailant; and

5.  The right to be informed by the district attorney of other victim's rights available pursuant to Section 215.33 of Title 19 of the Oklahoma Statutes."

The written notice shall also include the telephone number of the twenty-four-hour statewide telephone communication service established by the Department of Mental Health and Substance Abuse Services in Section 3-314 of Title 43A of the Oklahoma Statutes.

Added by Laws 1982, c. 220, § 2.  Amended by Laws 2000, c. 370, § 2, eff. July 1, 2000; Laws 2002, c. 466, § 2, emerg. eff. June 5, 2002.

§22-40.2.  Victim protection order - Victims not to be discouraged from pressing charges - Rape or forcible sodomy.

A victim protection order for any victim of rape or forcible sodomy shall be substantially similar to a protective order in domestic abuse cases pursuant to Section 60 et seq. of this title.  No peace officer shall discourage a victim of rape or forcible sodomy from pressing charges against any assailant of the victim.

Added by Laws 1982, c. 220, § 3.  Amended by Laws 1993, c. 325, § 13, eff. Sept. 1, 1993; Laws 2002, c. 466, § 3, emerg. eff. June 5, 2002.

§22-40.3.  Emergency temporary order of protection - Rape or forcible sodomy.

A.  When the court is not open for business, the victim of rape or forcible sodomy may request a petition for an emergency temporary order of protection.  The peace officer making the preliminary investigation shall:

1.  Provide the victim with a petition for an emergency temporary order of protection and, if necessary, assist the victim in completing the petition form.  The petition shall be in substantially the same form as provided by Section 60.2 of this title for a petition for protective order in domestic abuse cases;

2.  Immediately notify, by telephone or otherwise, a judge of the district court of the request for an emergency temporary order of protection and describe the circumstances.  The judge shall inform the peace officer of the decision to approve or disapprove the emergency temporary order;

3.  Inform the victim whether the judge has approved or disapproved the emergency temporary order.  If an emergency temporary order has been approved, the officer shall provide the victim, or a responsible adult if the victim is a minor child or an incompetent person, with a copy of the petition and a written statement signed by the officer attesting that the judge has approved the emergency temporary order of protection;

4.  Notify the person subject to the emergency temporary protection order of the issuance and conditions of the order if known.  Notification pursuant to this paragraph may be made personally by the officer upon arrest, or upon identification of the assailant notice shall be given by any law enforcement officer.  A copy of the petition and the statement of the officer attesting to the order of the judge shall be made available to the person; and

5.  File a copy of the petition and the statement of the officer with the district court of the county immediately upon the opening of the court on the next day the court is open for business.

B.  The forms utilized by law enforcement agencies in carrying out the provisions of this section may be substantially similar to those used under Section 60.2 of this title.

Added by Laws 1982, c. 220, § 4.  Amended by Laws 1986, c. 197, § 5, eff. Nov. 1, 1986; Laws 1993, c. 325, § 14, eff. Sept. 1, 1993; Laws 1997, c. 368, § 1, eff. Nov. 1, 1997; Laws 2000, c. 370, § 3, eff. July 1, 2000; Laws 2002, c. 466, § 4, emerg. eff. June 5, 2002.

§2240.5.  Short Title.

Sections 2 through 4 of this act shall be known and may be cited as the "Domestic Abuse Reporting Act".

Added by Laws 1986, c. 197, § 2, eff. Nov. 1, 1986.  

§22-40.6.  Record of reported incidents of domestic abuse - Reports.

A.  It shall be the duty of every law enforcement agency to keep a record of each reported incident of domestic abuse as provided in subsection B of this section and to submit a monthly report of such incidents as provided in subsection C of this section to the Director of the Oklahoma State Bureau of Investigation.

B.  The record of each reported incident of domestic abuse shall:

1.  Show the type of crime involved in the domestic abuse;

2.  Show the day of the week the incident occurred;  

3.  Show the time of day the incident occurred; and

4.  Contain other information requested by the Oklahoma State Bureau of Investigation.

C.  A monthly report of the recorded incidents of domestic abuse shall be submitted to the Director of the Oklahoma State Bureau of Investigation on forms provided by the Oklahoma State Bureau of Investigation for such purpose and in accordance with the guidelines established pursuant to Section 150.12B of Title 74 of the Oklahoma Statutes.

Added by Laws 1986, c. 197, § 3, eff. Nov. 1, 1986.  Amended by Laws 2000, c. 370, § 4, eff. July 1, 2000.

§22-40.7.  Expert testimony - Admissibility.

In an action in a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness concerning the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.

Added by Laws 1992, c. 145, § 1, eff. Sept. 1, 1992.

§22-41.  Information of threat.

An information, verified by the oath of the complainant, may be laid before any magistrate, that a person has threatened to commit an offense against the person or property of another.

R.L.1910, § 5561.  

§2242.  Magistrate must issue warrant.

If it appear from the information that there is just reason to fear the commission of the offenses threatened, by the person complained of, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, or marshal, or policeman of the city or town, reciting the substance of the information, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate of the county.

R.L. 1910, Sec. 5562.

§2243.  Proceedings when charge is controverted.

When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto.  The evidence must, on demand of the defendant, be reduced to writing, and subscribed by the witnesses.

R.L.1910, § 5563. d

§2244.  Discharge, when.

Unless it appear that there is just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged.

R.L.1910, § 5564.  

§2245.  Bond required, when.

If, however, there be just reason to fear the commission of the offense the person complained of may be required to enter into an undertaking in such sum, not exceeding One Thousand Dollars ($1,000.00), as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next district court of the county, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant.

R.L.1910, § 5565.  

§2246.  When bond is or is not given.

If the undertaking required by the last section be given the party complained of must be discharged.  If he do not give it the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same.

R.L.1910, § 5566.  

§2247.  Discharge on giving bond.

If the person complained of be committed for not giving security he may be discharged by any justice of the peace of the county, or police or special justice of the city, upon giving the same.

R.L.1910, § 5567.  

§2248.  Undertaking sent to district court.

The undertaking must be transmitted by the magistrate to the next district court of the county.

R.L.1910, § 5568.  

§2249.  Assault or threat in presence of magistrate.

A person who, in the presence of a court or magistrate, assaults or threatens to assault another, or commit an offense against his person or property, or who contends with another with angry words, may be ordered by the court or magistrate to give security, as provided in Section 5565, or if he refuses to do so, he may be committed as provided in Section 5566.

R.L.1910, § 5569.  

§2250.  Person must appear in district court.

A person who has entered into an undertaking to keep the peace must appear on the first day of the next term of the district court of the county.  If he do not, the court may forfeit his undertaking, and order it to be prosecuted unless his default be excused.

R.L.1910, § 5570.  

§2251.  Discharge when complainant fails to appear.

If the complainant do not appear, the person complained of may be discharged, unless good cause to the contrary be shown.

R.L.1910, § 5571.  

§2252.  Proceedings when parties appear.

If both parties appear, the court may hear their proofs and allegations, and may either discharge the undertaking or require a new one for a time not exceeding one (1) year.

R.L.1910, § 5572.  

§2253.  Breach of bond, what constitutes.

An undertaking to keep the peace is broken on the failure of a person complained of to appear at the district court as provided in Section 5570, or upon his being convicted of a breach of the peace.

R.L.1910, § 5573.  

§2254.  Prosecution on breach.

Upon the county attorney producing evidence of such conviction to the district court to which the undertaking is returned, that court must order the undertaking to be prosecuted, and the county attorney must thereupon commence an action upon it in the name of this State.

R.L.1910, § 5574.  

§2255.  Allegation and proof.

In the action the offense stated in the record of conviction must be alleged as the breach of the undertaking, and such record is conclusive evidence thereof.

R.L.1910, § 5575. d

§2256.  Limitation.

Security to keep the peace or to be of good behavior cannot be required, except as prescribed in this article.

R.L.1910, § 5576.  

§2257.  Costs.

In all cases of security to keep the peace under this chapter, the court in addition to the orders mentioned in said chapter shall tax the costs against the complainant or defendant, or both, as justice may require, and enter judgment therefor, which may be enforced as judgments for costs in criminal cases, and execution may issue therefor.

R.L.1910, § 5577.  

§22-58.  Mandatory reporting of domestic abuse - Exceptions.

A.  Criminally injurious conduct, as defined by the Oklahoma Crime Victims Compensation Act, which appears to be or is reported by the victim to be domestic abuse, as defined in Section 60.1 of Title 22 of the Oklahoma Statutes, or domestic abuse by strangulation, domestic abuse resulting in great bodily harm, or domestic abuse in the presence of a child, as defined in Section 644 of Title 21 of the Oklahoma Statutes, shall be reported according to the standards for reporting as set forth in subsection B of this section.

B.  Except as provided for in Section 7104 of Title 10 of the Oklahoma Statutes, any physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending, or treating the victim of what appears to be domestic abuse or is reported by the victim to be domestic abuse, as defined in Section 60.1 of Title 22 of the Oklahoma Statutes, or domestic abuse by strangulation, domestic abuse resulting in great bodily harm, or domestic abuse in the presence of a child, as defined in Section 644 of Title 21 of the Oklahoma Statutes, shall not be required to report any incident of what appears to be or is reported to be domestic abuse, domestic abuse by strangulation, domestic abuse resulting in great bodily harm, or domestic abuse in the presence of a child if:

1.  Committed upon the person of an adult who is over the age of eighteen (18) years; and

2.  The person is not an incapacitated adult.

C.  Any physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending, or treating a victim shall be required to report any incident of what appears to be or is reported to be domestic abuse, domestic abuse by strangulation, domestic abuse resulting in great bodily harm, or domestic abuse in the presence of a child, if requested to do so either orally or in writing by the victim.  A report of any incident shall be promptly made orally or by telephone to the nearest law enforcement agency in the county wherein the domestic abuse occurred or, if the location where the conduct occurred is unknown, the report shall be made to the law enforcement agency nearest to the location where the injury is treated.

D.  In all cases of what appears to be or is reported to be domestic abuse, the physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending, or treating the victim of what appears to be domestic abuse shall clearly and legibly document the incident and injuries observed and reported, as well as any treatment provided or prescribed.

E.  In all cases of what appears to be or is reported to be domestic abuse, the physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending or treating the victim of what appears to be domestic abuse shall refer the victim to domestic violence and victim services programs, including providing the victim with the twenty-four-hour statewide telephone communication service established by Section 3-314 of Title 43A of the Oklahoma Statutes.

F.  Every physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional making a report of domestic abuse pursuant to this section or examining a victim of domestic abuse to determine the likelihood of domestic abuse, and every hospital or related institution in which the victim of domestic abuse was examined or treated shall, upon the request of a law enforcement officer conducting a criminal investigation into the case, provide copies of the results of the examination or copies of the examination on which the report was based, and any other clinical notes, x-rays, photographs, and other previous or current records relevant to the case to the investigating law enforcement officer.

Added by Laws 2005, c. 53, § 3, eff. Nov. 1, 2005.

§22-59.  Immunity from liability - Presumption of good faith.

A.  Any physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending, or treating the victim of what appears to be domestic abuse or is reported by the victim to be domestic abuse,  participating in good faith and exercising due care in the making of a report pursuant to the provisions of the Domestic Abuse Reporting Act shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.  Any participant shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.

B.  No physician, surgeon, resident, intern, physician's assistant, registered nurse, or any other health care professional examining, attending, or treating any victim who is over the age of eighteen (18) years and is not an incapacitated adult of what appears to be domestic abuse or is reported by the victim to be domestic abuse, shall not be required to make a report of the criminally injurious conduct unless requested by the victim to do so and shall have immunity from liability, civil or criminal, that might otherwise be incurred or imposed for not making the report.  Any participant shall have the same immunity with respect to participation in any judicial proceeding resulting from the report.  

C.  For purposes of any proceeding, civil or criminal, the good faith of any physician, surgeon, intern, physician's assistant, registered nurse, or any other health care professional in making a report pursuant to the provisions of Section 3 of this act shall be presumed.

Added by Laws 2005, c. 53, § 4, eff. Nov. 1, 2005.

§2260.  Short title.

This act shall be known and may be cited as the "Protection from Domestic Abuse Act".

Added by Laws 1982, c. 255, § 1.  

§22-60.1.  Definitions.

As used in the Protection from Domestic Abuse Act and in the Domestic Abuse Reporting Act, Sections 40.5 through 40.7 of this title and Section 150.12B of Title 74 of the Oklahoma Statutes:

1.  "Domestic abuse" means any act of physical harm, or the threat of imminent physical harm which is committed by an adult, emancipated minor, or minor child thirteen (13) years of age or older against another adult, emancipated minor or minor child who are family or household members or who are or were in a dating relationship;

2.  "Stalking" means the willful, malicious, and repeated following of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, with the intent of placing the person in reasonable fear of death or great bodily injury;

3.  "Harassment" means a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person which seriously alarms or annoys the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial distress to the person. "Harassment" shall include, but not be limited to, harassing or obscene telephone calls in violation of Section 1172 of Title 21 of the Oklahoma Statutes and fear of death or bodily injury;

4.  "Family or household members" means:

a. spouses,

b. ex-spouses,

c. present spouses of ex-spouses,

d. parents, including grandparents, stepparents, adoptive parents and foster parents,

e. children, including grandchildren, stepchildren, adopted children and foster children,

f. persons otherwise related by blood or marriage,

g. persons living in the same household or who formerly lived in the same household, and

h. persons who are the biological parents of the same child, regardless of their marital status, or whether they have lived together at any time. This shall include the elderly and handicapped;

5.  "Dating relationship" means a courtship or engagement relationship. For purposes of this act, a casual acquaintance or ordinary fraternization between persons in a business or social context shall not constitute a dating relationship;

6.  "Foreign protective order" means any valid order of protection issued by a court of another state or a tribal court;

7.  "Rape" means rape and rape by instrumentation in violation of Sections 1111 and 1111.1 of Title 21 of the Oklahoma Statutes;

8.  "Victim support person" means a person affiliated with a certified domestic violence or sexual assault program, certified by the Attorney General or certified by a recognized Native American Tribe if operating mainly within tribal lands, who provides support and assistance for a person who files a petition under the Protection from Domestic Violence Act; and

9.  "Mutual protective order" means a final protective order or orders issued to both a plaintiff who has filed a petition for a protective order and a defendant included as the defendant in the plaintiff's petition restraining the parties from committing domestic violence, stalking, harassment or rape against each other. If both parties allege domestic abuse, violence, stalking, harassment or rape against each other, the parties shall do so by separate petition pursuant to Section 60.4 of this title.

Added by Laws 1982, c. 255, § 2, eff. Oct. 1, 1982.  Amended by Laws 1986, c. 197, § 1, eff. Nov. 1, 1986; Laws 1991, c. 112, § 2, eff. Sept. 1, 1991; Laws 1992, c. 42, § 1, eff. Sept. 1, 1992; Laws 1994, c. 290, § 54, eff. July 1, 1994; Laws 1995, c. 297, § 1, eff. Nov. 1, 1995; Laws 1996, c. 247, § 29, eff. July 1, 1996; Laws 2000, c. 85, § 1, eff. Nov. 1, 2000; Laws 2000, c. 370, § 5, eff. July 1, 2000; Laws 2001, c. 279, § 2, eff. Nov. 1, 2001; Laws 2003, c. 407, § 1, eff. Nov. 1, 2003; Laws 2005, c. 348, § 14, eff. July 1, 2005.

§22-60.2.  Protective order - Petition - Fees.

A.  A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim of rape, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years may seek relief under the provisions of the Protection from Domestic Abuse Act.

1.  The person seeking relief may file a petition for a protective order with the district court in the county in which the victim resides, the county in which the defendant resides, or the county in which the domestic violence occurred.  If the person seeking relief is a victim of stalking but is not a family or household member or an individual who is or has been in a dating relationship with the defendant, the person seeking relief must file a complaint against the defendant with the proper law enforcement agency before filing a petition for a protective order with the district court.  The person seeking relief shall provide a copy of the complaint that was filed with the law enforcement agency when filing the petition for the protective order.  The filing of a petition for a protective order shall not require jurisdiction or venue of the criminal offense if either the plaintiff or defendant resides in the county.  If a petition has been filed in an action for divorce or separate maintenance and either party to the action files a petition for a protective order in the same county where the action for divorce or separate maintenance is filed, the petition for the protective order shall be heard by the court hearing the divorce or separate maintenance action.  If the defendant is a minor child, the petition shall be filed with the court having jurisdiction over juvenile matters.

2.  When the abuse occurs when the court is not open for business, such person may request an emergency temporary order of protection as authorized by Section 40.3 of this title.

B.  The petition forms shall be provided by the clerk of the court.  The Administrative Office of the Courts shall develop a standard form for the petition.

C.  1.  Except as otherwise provided by this section, no filing fee, service of process fee, attorney fees or any other fee or costs shall be charged the plaintiff or victim at any time for filing a petition for a protective order whether a protective order is granted or not granted.  The court may assess court costs, service of process fees, attorney fees, other fees and filing fees against the defendant at the hearing on the petition, if a protective order is granted against the defendant; provided, the court shall have authority to waive the costs and fees if the court finds that the party does not have the ability to pay the costs and fees.

2.  If the court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff.

D.  The person seeking relief shall prepare the petition or, at the request of the plaintiff, the court clerk or the victim-witness coordinator, victim support person, and court case manager shall prepare or assist the plaintiff in preparing the petition.

Added by Laws 1982, c. 255, § 3, eff. Oct. 1, 1982.  Amended by Laws 1983, c. 290, § 1, eff. Nov. 1, 1983; Laws 1991, c. 112, § 3, eff. Sept. 1, 1991; Laws 1992, c. 42, § 2, eff. Sept. 1, 1992; Laws 1993, c. 325, § 15, eff. Sept. 1, 1993; Laws 1994, c. 290, § 55, eff. July 1, 1994; Laws 1996, c. 247, § 30, eff. July 1, 1996; Laws 1997, c. 403, § 7, eff. Nov. 1, 1997; Laws 2000, c. 370, § 6, eff. July 1, 2000; Laws 2001, c. 279, § 3, eff. Nov. 1, 2001; Laws 2003, c. 407, § 2, eff. Nov. 1, 2003.

§22-60.3.  Emergency ex parte order and hearing - Emergency temporary ex parte order of protection.

A.  If a plaintiff requests an emergency ex parte order pursuant to Section 60.2 of this title, the court shall hold an ex parte hearing on the same day the petition is filed, if the court finds sufficient grounds within the scope of the Protection from Domestic Abuse Act stated in the petition to hold such a hearing.  The court may, for good cause shown at the hearing, issue any emergency ex parte order that it finds necessary to protect the victim from immediate and present danger of domestic abuse, stalking, or harassment.  The emergency ex parte order shall be in effect until after the full hearing is conducted.  Provided, if the defendant, after having been served, does not appear at the hearing, the emergency ex parte order shall remain in effect until the defendant is served with the permanent order.  If the terms of the permanent order are the same as those in the emergency order, or are less restrictive, then it is not necessary to serve the defendant with the permanent order.  The Administrative Office of the Courts shall develop a standard form for emergency ex parte protective orders.

B.  An emergency ex parte protective order authorized by this section shall include the name, sex, race, date of birth of the defendant, and the dates of issue and expiration of the protective order.

C.  If a plaintiff requests an emergency temporary ex parte order of protection as provided by Section 40.3 of this title, the judge who is notified of the request by a peace officer may issue such order verbally to the officer or in writing when there is reasonable cause to believe that the order is necessary to protect the victim from immediate and present danger of domestic abuse.  When the order is issued verbally the judge shall direct the officer to complete and sign a statement attesting to the order.  The emergency temporary ex parte order shall be in effect until the close of business on the next day the court is open for business after the order is issued.

Added by Laws 1982, c. 255, § 4, eff. Oct. 1, 1982.  Amended by Laws 1983, c. 290, § 2, eff. Nov. 1, 1983; Laws 1992, c. 42, § 3, eff. Sept. 1, 1992; Laws 1993, c. 325, § 16, eff. Sept. 1, 1993; Laws 1994, c. 290, § 56, eff. July 1, 1994; Laws 1996, c. 247, § 31, eff. July 1, 1996; Laws 1999, c. 34, § 1, eff. Nov. 1, 1999; Laws 2000, c. 370, § 7, eff. July 1, 2000; Laws 2001, c. 279, § 4, eff. Nov. 1, 2001; Laws 2003, c. 407, § 3, eff. Nov. 1, 2003.

§22-60.4.  Service of emergency ex parte order, petition for protective order and notice of hearing - Full hearing - Final protective order.

A.  1.  A copy of the petition, notice of hearing and a copy of any emergency ex parte order issued by the court shall be served upon the defendant in the same manner as a bench warrant.  In addition, if the service is to be in another county, the court clerk may issue service to the sheriff by facsimile or other electronic transmission for service by the sheriff.  Any fee for service of an emergency ex parte order, petition for protective order, and notice of hearing shall only be charged pursuant to subsection C of Section 60.2 of this title and, if charged, shall be the same as the sheriff's service fee plus mileage expenses.

2.  Emergency ex parte orders shall be given priority for service and can be served twenty-four (24) hours a day when the location of the defendant is known.  When service cannot be made upon the defendant by the sheriff, the sheriff may contact another law enforcement officer or a private investigator or private process server to serve the defendant.

3.  An emergency ex parte order, a petition for protective order, and a notice of hearing shall have statewide validity and may be transferred to any law enforcement jurisdiction to effect service upon the defendant.

4.  The return of service shall be submitted to the sheriff's office in the court where the petition, notice of hearing or order was issued.

5.  When the defendant is a minor child who is ordered removed from the residence of the victim, in addition to those documents served upon the defendant, a copy of the petition, notice of hearing and a copy of any ex parte order issued by the court shall be delivered with the child to the caretaker of the place where such child is taken pursuant to Section 7303-1.1 of Title 10 of the Oklahoma Statutes.

B.  1.  Within twenty (20) days of the filing of the petition for a protective order, the court shall schedule a full hearing on the petition, if the court finds sufficient grounds within the scope of the Protection from Domestic Abuse Act stated in the petition to hold such a hearing, regardless of whether an emergency ex parte order has been previously issued, requested or denied. Provided, however, when the defendant is a minor child who has been removed from the residence pursuant to Section 7303-1.1 of Title 10 of the Oklahoma Statutes, the court shall schedule a full hearing on the petition within seventy-two (72) hours, regardless of whether an emergency ex parte order has been previously issued, requested or denied.

2.  The court may schedule a full hearing on the petition for a protective order within seventy-two (72) hours when the court issues an emergency ex parte order suspending child visitation rights due to physical violence or threat of abuse.

3.  If service has not been made on the defendant at the time of the hearing, the court shall continue the hearing.

4.  A petition for a protective order shall automatically renew every twenty (20) days until the defendant is served. A petition for a protective order shall not expire and must be dismissed by court order.

5.  Failure to serve the defendant shall not be grounds for dismissal of a petition or an ex parte order unless the victim requests dismissal.

C.  1.  At the hearing, the court may impose any terms and conditions in the protective order that the court reasonably believes are necessary to bring about the cessation of domestic abuse against the victim or stalking or harassment of the victim or the victim's immediate family and may order the defendant to obtain domestic abuse counseling or treatment in a program certified by the Attorney General at the defendant's expense pursuant to Section 644 of Title 21 of the Oklahoma Statutes.

2.  If the court grants a protective order and the defendant is a minor child, the court shall order a preliminary inquiry in a juvenile proceeding to determine whether further court action pursuant to the Oklahoma Juvenile Code should be taken against a juvenile defendant.

D.  Final protective orders authorized by this section shall be on a standard form developed by the Administrative Office of the Courts.

E.  1.  After notice and hearing, protective orders authorized by this section may require the plaintiff or the defendant or both to undergo treatment or participate in the court-approved counseling services necessary to bring about cessation of domestic abuse against the victim pursuant to Section 644 of Title 21 of the Oklahoma Statutes.

2.  Either party or both may be required to pay all or any part of the cost of such treatment or counseling services. The court shall not be responsible for such cost.

F.  When necessary to protect the victim and when authorized by the court, protective orders granted pursuant to the provisions of this section may be served upon the defendant by a peace officer, sheriff, constable, or policeman or other officer whose duty it is to preserve the peace, as defined by Section 99 of Title 21 of the Oklahoma Statutes.

G.  1.  Any protective order issued on or after November 1, 1999, pursuant to subsection C of this section shall be for a fixed period not to exceed a period of three (3) years unless extended, modified, vacated or rescinded upon motion by either party or if the court approves any consent agreement entered into by the plaintiff and defendant.

2.  The court shall notify the parties at the time of the issuance of the protective order of the duration of the protective order.

3.  Upon the filing of a motion by either party to modify, extend, or vacate a protective order, a hearing shall be scheduled and notice given to the parties. At the hearing, the issuing court may take such action as is necessary under the circumstances.

4.  If a child has been removed from the residence of a parent or custodial adult because of domestic abuse committed by the child, the parent or custodial adult may refuse the return of such child to the residence, unless upon further consideration by the court in a juvenile proceeding, it is determined that the child is no longer a threat and should be allowed to return to the residence.

H.  1.  It shall be unlawful for any person to knowingly and willfully seek a protective order against a spouse or ex-spouse pursuant to the Protection from Domestic Abuse Act for purposes of harassment, undue advantage, intimidation, or limitation of child visitation rights in any divorce proceeding or separation action without justifiable cause.

2.  The violator shall, upon conviction thereof, be guilty of a misdemeanor punishable by imprisonment in the county jail for a period not exceeding one (1) year or by a fine not to exceed Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.

3.  A second or subsequent conviction under this subsection shall be a felony punishable by imprisonment in the custody of the Department of Corrections for a period not to exceed two (2) years, or by a fine not to exceed Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment.

I.  1.  A protective order issued under the Protection from Domestic Abuse Act shall not in any manner affect title to real property, purport to grant to the parties a divorce or otherwise purport to determine the issues between the parties as to child custody, visitation or visitation schedules, child support or division of property or any other like relief obtainable pursuant to Title 43 of the Oklahoma Statutes, except child visitation orders may be temporarily suspended or modified to protect from threats of abuse or physical violence by the defendant or a threat to violate a custody order.

2.  When granting any protective order for the protection of a minor child from violence or threats of abuse, the court shall allow visitation only under conditions that provide adequate supervision and protection to the child while maintaining the integrity of a divorce decree or temporary order.

J.  1.  A court shall not issue any mutual protective orders.

2.  If both parties allege domestic abuse by the other party, the parties shall do so by separate petitions. The court shall review each petition separately, in an individual or a consolidated hearing and grant or deny each petition on its individual merits. If the court finds cause to grant both motions, the court shall do so by separate orders and with specific findings justifying the issuance of each order.

3.  The court may only consolidate a hearing if:

a. the court makes specific findings that:

(1) sufficient evidence exists of domestic abuse, stalking, harassment or rape against each party, and

(2) each party acted primarily as aggressors, and

b. the defendant filed a petition with the court for a protective order no less than three (3) days, not including weekends or holidays, prior to the first scheduled full hearing on the petition filed by the plaintiff, and

c. the defendant had no less than forty-eight (48) hours' notice prior to the full hearing on the petition filed by the plaintiff.

K.  The court may allow a plaintiff or victim to be accompanied by a victim support person at court proceedings. A victim support person shall not make legal arguments, however, a victim support person who is not a licensed attorney may offer the plaintiff or victim comfort or support and may remain in close proximity to the plaintiff or victim.

Added by Laws 1982, c. 255, § 5, eff. Oct. 1, 1982.  Amended by Laws 1983, c. 290, § 3, eff. Nov. 1, 1983; Laws 1987, c. 174, § 1, operative July 1, 1987; Laws 1992, c. 42, § 4, eff. Sept. 1, 1992; Laws 1992, c. 379, § 1, eff. Sept. 1, 1992; Laws 1994, c. 290, § 57, eff. July 1, 1994; Laws 1996, c. 247, § 32, eff. July 1, 1996; Laws 1999, c. 97, § 1, eff. Nov. 1, 1999; Laws 2000, c. 370, § 8, eff. July 1, 2000; Laws 2001, c. 279, § 5, eff. Nov. 1, 2001; Laws 2003, c. 407, § 4, eff. Nov. 1, 2003; Laws 2005, c. 348, § 15, eff. July 1, 2005.

§22-60.5.  Access to protective orders by law enforcement agencies.

A.  Within twenty-four (24) hours of the return of service of any ex parte or final protective order, the clerk of the issuing court shall send certified copies thereof to all appropriate law enforcement agencies designated by the plaintiff.  A certified copy of any extension, modification, vacation, cancellation or consent agreement concerning a final protective order shall be sent within twenty-four (24) hours by the clerk of the issuing court to those law enforcement agencies receiving the original orders pursuant to this section and to any law enforcement agencies designated by the court.

B.  Any law enforcement agency receiving copies of the documents listed in subsection A of this section shall be required to ensure that other law enforcement agencies have access twenty-four (24) hours a day to the information contained in the documents which may include entry of information about the ex parte or final protective order in the National Crime Information Center database.

Added by Laws 1982, c. 255, § 6, eff. Oct. 1, 1982.  Amended by Laws 1983, c. 290, § 4, eff. Nov. 1, 1983; Laws 1994, c. 290, § 58, eff. July 1, 1994; Laws 1997, c. 368, § 2, eff. Nov. 1, 1997; Laws 1999, c. 97, § 2, eff. Nov. 1, 1999; Laws 2000, c. 370, § 9, eff. July 1, 2000.

§22-60.6.  Violation of ex parte or final protective order or foreign protective order - Penalties.

A.  Except as otherwise provided by this section, any person who:

1.  Has been served with an ex parte or final protective order or foreign protective order and is in violation of such protective order, upon conviction, shall be guilty of a misdemeanor and shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by a term of imprisonment in the county jail of not more than one (1) year, or both such fine and imprisonment;

2.  After a previous conviction of a violation of a protective order, is convicted of a second offense pursuant to the provisions of this section shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by a term of imprisonment in the county jail of not less than ten (10) days and not more than one (1) year. In addition to the term of imprisonment, the person may be punished by a fine of not less than One Thousand Dollars ($1,000.00) and not more than Five Thousand Dollars ($5,000.00); and

3.  Except as provided for in paragraphs 1 and 2 of subsection B of this section, after previous conviction of a violation of any protective order, is convicted of a third or subsequent offense pursuant to the provisions of this section shall be guilty of a felony and shall be punished by a term of imprisonment for not less than one (1) year nor more than three (3) years, or by a fine of not less than Two Thousand Dollars ($2,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment.

B.  1.  Any person who has been served with an ex parte or final protective order or foreign protective order who violates the protective order and causes physical injury or physical impairment to the plaintiff or to any other person named in said protective order shall, upon conviction, be guilty of a misdemeanor and shall be punished by a term of imprisonment in the county jail for not less than twenty (20) days nor more than one (1) year.  In addition to the term of imprisonment, the person may be punished by a fine not to exceed Five Thousand Dollars ($5,000.00).

2.  Any person who is convicted of a second or subsequent violation of a protective order which causes physical injury or physical impairment to a plaintiff or to any other person named in the protective order shall be guilty of a felony and shall be punished by a term of imprisonment of not less than one (1) year nor more than five (5) years, or by a fine of not less than Three Thousand Dollars ($3,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment.

3.  In determining the term of imprisonment required by this section, the jury or sentencing judge shall consider the degree of physical injury or physical impairment to the victim.

4.  The provisions of this subsection shall not affect the applicability of Sections 644, 645, 647 and 652 of Title 21 of the Oklahoma Statutes.

C.  The minimum sentence of imprisonment issued pursuant to the provisions of paragraphs 2 and 3 of subsection A and paragraph 1 of subsection B of this section shall not be subject to statutory provisions for suspended sentences, deferred sentences or probation, provided the court may subject any remaining penalty under the jurisdiction of the court to the statutory provisions for suspended sentences, deferred sentences or probation.

D.  In addition to any other penalty specified by this section, the court shall require a defendant to undergo the treatment or participate in the counseling services necessary to bring about the cessation of domestic abuse against the victim or to bring about the cessation of stalking or harassment of the victim. For every conviction of violation of a protective order:

1.  The court shall specifically order as a condition of a suspended sentence or probation that a defendant participate in counseling or undergo treatment to bring about the cessation of domestic abuse as specified in paragraph 2 of this subsection;

2. a. The court shall require the defendant to participate in counseling or undergo treatment for domestic abuse by an individual licensed practitioner or a domestic abuse counseling program approved by the court or a domestic abuse treatment program certified by the Attorney General.  If the defendant is ordered to participate in a domestic abuse counseling or treatment program, the order shall require the defendant to attend the program for a minimum of fifty-two (52) weeks, complete the program, and be evaluated before and after attendance of the program by a program counselor or a private counselor.

b. A program for anger management, couples counseling, or family and marital counseling shall not solely qualify for the counseling or treatment requirement for domestic abuse pursuant to this subsection.  The counseling may be ordered in addition to counseling specifically for the treatment of domestic abuse or per evaluation as set forth below.  If, after sufficient evaluation and attendance at required counseling sessions, the domestic violence treatment program or licensed professional determines that the defendant does not evaluate as a perpetrator of domestic violence or does evaluate as a perpetrator of domestic violence and should complete other programs of treatment simultaneously or prior to domestic violence treatment, including but not limited to programs related to the mental health, apparent substance or alcohol abuse or inability or refusal to manage anger, the defendant shall be ordered to complete the counseling as per the recommendations of the domestic violence treatment program or licensed professional;

3. a. The court shall set a review hearing no more than one hundred twenty (120) days after the defendant is ordered to participate in a domestic abuse counseling program or undergo treatment for domestic abuse to assure the attendance and compliance of the defendant with the provisions of this subsection and the domestic abuse counseling or treatment requirements.

b. The court shall set a second review hearing after the completion of the counseling or treatment to assure the attendance and compliance of the defendant with the provisions of this subsection and the domestic abuse counseling or treatment requirements.  The court shall retain continuing jurisdiction over the defendant during the course of ordered counseling through the final review hearing;

4.  The court may set subsequent or other review hearings as the court determines necessary to assure the defendant attends and fully complies with the provisions of this subsection and the domestic abuse counseling or treatment requirements;

5.  At any review hearing, if the defendant is not satisfactorily attending individual counseling or a domestic abuse counseling or treatment program or is not in compliance with any domestic abuse counseling or treatment requirements, the court may order the defendant to further or continue counseling, treatment, or other necessary services.  The court may revoke all or any part of a suspended sentence, deferred sentence, or probation pursuant to Section 991b of Title 22 of the Oklahoma Statutes and subject the defendant to any or all remaining portions of the original sentence;

6.  At the first review hearing, the court shall require the defendant to appear in court.  Thereafter, for any subsequent review hearings, the court may accept a report on the progress of the defendant from individual counseling, domestic abuse counseling, or the treatment program.  There shall be no requirement for the victim to attend review hearings; and

7.  If funding is available, a referee may be appointed and assigned by the presiding judge of the district court to hear designated cases set for review under this subsection.  Reasonable compensation for the referees shall be fixed by the presiding judge. The referee shall meet the requirements and perform all duties in the same manner and procedure as set forth in Sections 7003-8.6 and 7303-7.5 of Title 10 of the Oklahoma Statutes pertaining to referees appointed in juvenile proceedings.

E.  Ex parte and final protective orders shall include notice of these penalties.

F.  When a minor child violates the provisions of any protective order, the violation shall be heard in a juvenile proceeding and the court may order the child and the parent or parents of the child to participate in family counseling services necessary to bring about the cessation of domestic abuse against the victim and may order community service hours to be performed in lieu of any fine or imprisonment authorized by this section.

G.  Any district court of this state and any judge thereof shall be immune from any liability or prosecution for issuing an order that requires a defendant to:

1.  Attend a treatment program for domestic abusers certified by the Attorney General;

2.  Attend counseling or treatment services ordered as part of any final protective order or for any violation of a protective order; and

3.  Attend, complete, and be evaluated before and after attendance by a treatment program for domestic abusers certified by the Attorney General.

H.  At no time, under any proceeding, may a person protected by a protective order be held to be in violation of that protective order. Only a defendant against whom a protective order has been issued may be held to have violated the order.

Added by Laws 1982, c. 255, § 7.  Amended by Laws 1983, c. 290, § 5, eff. Nov. 1, 1983; Laws 1988, c. 249, § 1, emerg. eff. June 27, 1988; Laws 1992, c. 42, § 5, eff. Sept. 1, 1992; Laws 1994, c. 290, § 59, eff. July 1, 1994; Laws 1995, c. 297, § 2, eff. Nov. 1, 1995; Laws 1996, c. 247, § 33, eff. July 1, 1996; Laws 2000, c. 85, § 2, eff. Nov. 1, 2000; Laws 2004, c. 516, § 2, eff. July 1, 2005; Laws 2005, c. 348, § 16, eff. July 1, 2005.

§2260.7.  Statewide and nationwide validity of orders.

All orders issued pursuant to the provisions of the Protection from Domestic Abuse Act, Section 60 et seq. of this title, shall have statewide and nationwide validity, unless specifically modified or terminated by a judge of the district courts.

Added by Laws 1983, c. 290, § 6, eff. Nov. 1, 1983.  Amended by Laws 1991, c. 112, § 4, eff. Sept. 1, 1991; Laws 2000, c. 85, § 3, eff. Nov. 1, 2000.

§22-60.8.  Seizure and forfeiture of weapons used to commit act of domestic abuse.

A.  Each peace officer of this state shall seize any weapon or instrument when such officer has probable cause to believe such weapon or instrument has been used to commit an act of domestic abuse as defined by Section 60.1 of this title, provided an arrest is made, if possible, at the same time.

B.  After any such seizure, the District Attorney shall file a notice of seizure and forfeiture as provided in this section within ten (10) days of such seizure, or any weapon or instrument seized pursuant to this section shall be returned to the owner.

C.  The seizure and forfeiture provisions of Section 991a-19 of this title shall be followed for any seizure and forfeiture of property pursuant to this section.  No weapon or instrument seized pursuant to this section or monies from the sale of any such seized weapon or instrument shall be turned over to the person from whom such property was seized if a forfeiture action has been filed within the time required by subsection B of this section, unless authorized by this section.  Provided further, the owner may prove at the forfeiture hearing that the conduct giving rise to the seizure was justified, and if the owner proves justification, the seized property shall be returned to the owner.  Any proceeds gained from this seizure shall be placed in the Crime Victims Compensation Revolving Fund.

Added by Laws 1993, c. 235, § 1, eff. Sept. 1, 1993.  Amended by Laws 2000, c. 370, § 10, eff. July 1, 2000; Laws 2002, c. 443, § 2, eff. July 1, 2002.

§22-60.9.  Warrantless arrest.

A.  A peace officer, without a warrant, may arrest and take into custody a person if the peace officer has reasonable cause to believe that:

1.  An emergency ex parte or final protective order has been issued and served upon the person, pursuant to Section 60.1 et seq. of this title;

2.  A true copy and proof of service of the order has been filed with the law enforcement agency having jurisdiction of the area in which the plaintiff or any family or household member named in the order resides or a certified copy of the order and proof of service is presented to the peace officer as provided in subsection D of this section;

3.  The person named in the order has received notice of the order and has had a reasonable time to comply with such order; and

4.  The person named in the order has violated the order or is then acting in violation of the order.

B.  A peace officer, without a warrant, may arrest and take into custody a person if the following conditions have been met:

1.  The peace officer has reasonable cause to believe that a foreign protective order has been issued, pursuant to the law of the state or tribal court where the foreign protective order was issued;

2.  A certified copy of the foreign protective order has been presented to the peace officer that appears valid on its face; and

3.  The peace officer has reasonable cause to believe the person named in the order has violated the order or is then acting in violation of the order.

C.  A person arrested pursuant to this section shall be brought before the court within twenty-four (24) hours after arrest to answer to a charge for violation of the order pursuant to Section 60.8 of this title, at which time the court shall do each of the following:

1.  Set a time certain for a hearing on the alleged violation of the order within seventy-two (72) hours after arrest, unless extended by the court on the motion of the arrested person;

2.  Set a reasonable bond pending a hearing of the alleged violation of the order; and

3.  Notify the party who has procured the order and direct the party to appear at the hearing and give evidence on the charge.

D.  A copy of a protective order shall be prima facie evidence that such order is valid in this state when such documentation is presented to a law enforcement officer by the plaintiff, defendant, or another person on behalf of a person named in the order.  Any law enforcement officer may rely on such evidence to make an arrest for a violation of such order, if there is reason to believe the defendant has violated or is then acting in violation of the order without justifiable excuse.  When a law enforcement officer relies upon the evidence specified in this subsection, such officer and the employing agency shall be immune from liability for the arrest of the defendant if it is later proved that the evidence was false.

E.  Any person who knowingly and willfully presents any false or materially altered protective order to any law enforcement officer to effect an arrest of any person shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a period not to exceed two (2) years, or by a fine not exceeding Five Thousand Dollars ($5,000.00) and shall, in addition, be liable for any civil damages to the defendant.

Added by Laws 1994, c. 316, § 1, emerg. eff. June 8, 1994.  Amended by Laws 2000, c. 85, § 4, eff. Nov. 1, 2000; Laws 2000, c. 370, § 11, eff. July 1, 2000.

§22-60.11.  Protective order - Statement required - Validity.

In addition to any other provisions required by the Protection from Domestic Abuse Act, or otherwise required by law, each ex parte or final protective order issued pursuant to the Protection from Domestic Abuse Act shall have a statement printed in bold-faced type or in capital letters containing the following information:

1.  The filing or nonfiling of criminal charges and the prosecution of the case shall not be determined by a person who is protected by the protective order, but shall be determined by the prosecutor;

2.  No person, including a person who is protected by the order, may give permission to anyone to ignore or violate any provision of the order.  During the time in which the order is valid, every provision of the order shall be in full force and effect unless a court changes the order;

3.  The order will be in effect for three (3) years unless extended, modified, vacated or rescinded by the court;

4.  A violation of the order is punishable by a fine of up to One Thousand Dollars ($1,000.00) or imprisonment for up to one (1) year in the county jail, or by both such fine and imprisonment.  A violation of the order which causes injury is punishable by imprisonment for twenty (20) days to one (1) year in the county jail or a fine of up to Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment; and

5.  Possession of a firearm or ammunition by a defendant while an order is in effect may subject the defendant to prosecution for a violation of federal law even if the order does not specifically prohibit the defendant from possession of a firearm or ammunition.

Added by Laws 1995, c. 297, § 3, eff. Nov. 1, 1995.  Amended by Laws 1999, c. 97, § 3, eff. Nov. 1, 1999; Laws 1999, c. 417, § 4, emerg. eff. June 10, 1999; Laws 2003, c. 407, § 5, eff. Nov. 1, 2003.

§22-60.12.  Foreign protective orders - Presumption of validity - Peace officers immune from liability.

A.  It is the intent of the Legislature that all foreign protective orders shall have the rebuttable presumption of validity, even if the foreign protective order contains provisions which could not be contained in a protective order issued by an Oklahoma court.  The validity of a foreign protective order shall only be determined by a court of competent jurisdiction.  Until a foreign protective order is declared invalid by a court of competent jurisdiction it shall be given full faith and credit by all peace officers and courts in the State of Oklahoma.

B.  A peace officer of this state shall be immune from liability for enforcing provisions of a foreign protective order.

Added by Laws 2000, c. 85, § 5, eff. Nov. 1, 2000.

§22-60.13.  Repealed by Laws 2003, c. 407, § 7, eff. Nov. 1, 2003.

§22-60.14.  Address confidentiality program.

A.  The Legislature finds that persons attempting to escape from actual or threatened domestic violence, sexual assault, or stalking frequently establish new addresses in order to prevent their assailants or probable assailants from finding them.  The purpose of this section is to enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic abuse, sexual assault, or stalking, to enable interagency cooperation with the Secretary of State in providing address confidentiality for victims of domestic abuse, sexual assault, or stalking, and to enable state and local agencies to accept an address designated by the Secretary of State by a program participant as a substitute mailing address.

B.  As used in this section:

1.  "Address" means a residential street address, school address, or work address of an individual, as specified on the application of an individual to be a program participant under this section;

2.  "Program participant" means a person certified as a program participant under this section;

3.  "Domestic abuse" means an act as defined in Section 60.1 of this title and includes a threat of such acts committed against an individual in a domestic situation, regardless of whether these acts or threats have been reported to law enforcement officers; and

4.  "Stalking" means an act as defined in Section 60.1 of this title regardless of whether the acts have been reported to law enforcement.

C.  On or after January 1, 2003, the Secretary of State, shall create an Address Confidentiality Program Office to be staffed by unclassified employees, who have been subjected to a criminal history records search.

D.  1.  Upon the creation of the Address Confidentiality Program Office, an adult person, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person, as defined by Section 1-111 of Title 30 of the Oklahoma Statutes, may apply to the Secretary of State to have an address designated by the Secretary of State serve as the address of the person or the address of the minor or incapacitated person.  The Secretary of State shall approve an application if it is filed in the manner and on the form prescribed by the Secretary of State and if it contains:

a. a sworn statement by the applicant that the applicant has good reason to believe:

(1) that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic abuse, sexual assault, or stalking, and

(2) that the applicant fears for the safety of self or children, or the safety of the minor or incapacitated person on whose behalf the application is made,

b. a designation of the Secretary of State as agent for purposes of service of process and for the purpose of receipt of mail,

c. the mailing address where the applicant can be contacted by the Secretary of State, and the phone number or numbers where the applicant can be called by the Secretary of State,

d. the new address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of domestic abuse, sexual assault, or stalking, and

e. the signature of the applicant and of a representative of any office designated a referring agency under subsection G of this section who assisted in the preparation of the application, and the date on which the applicant signed the application.

2.  Applications shall be filed with the Office of the Secretary of State.

3.  Upon filing a properly completed application, the Secretary of State shall certify the applicant as a program participant.  Applicants shall be certified for four (4) years following the date of filing unless the certification is withdrawn or invalidated before that date.  The Secretary of State shall by rule establish a renewal procedure.

4.  A person who falsely attests in an application that disclosure of the address of the applicant would endanger the safety of the applicant or the safety of the children of the applicant or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application, may be found guilty of perjury under Sections 500 and 504 of Title 21 of the Oklahoma Statutes.

E.  1.  If the program participant obtains a name change, the participant loses certification as a program participant.

2.  The Secretary of State may cancel the certification of a program participant if there is a change in the residential address from the one listed on the application, unless the program participant provides the Secretary of State with seven (7) days' prior notice of the change of address.

3.  The Secretary of State may cancel certification of a program participant if mail forwarded by the Secretary of State to the address of the program participant is returned as nondeliverable.

4.  The Secretary of State shall cancel certification of a program participant who applies using false information.

F.  1.  A program participant may request that state and local agencies use the address designated by the Secretary of State as the address of the participant.  When creating a new public record, state and local agencies shall accept the address designated by the Secretary of State as a substitute address for the program participant, unless the Secretary of State has determined that:

a. the agency has a bona fide statutory or administrative requirement for the use of the address which would otherwise be confidential under this section, and

b. this address will be used only for those statutory and administrative purposes.

2.  A program participant may use the address designated by the Secretary of State as a work address.

3.  The Office of the Secretary of State shall forward all first class mail to the appropriate program participants.

G.  The Secretary of State may not make any records in a file of a program participant available for inspection or copying, other than the address designated by the Secretary of State, except under the following circumstances:

1.  If directed by a court order, to a person identified in the order; or

2.  To verify the participation of a specific program participant, in which case the Secretary of State may only confirm information supplied by the requester.

H.  The Secretary of State shall designate state and local agencies and nonprofit agencies that provide counseling and shelter services to victims of domestic abuse, sexual assault, or stalking to assist persons applying to be program participants.  Any assistance and counseling rendered by the Office of the Secretary of State or its designees to applicants shall in no way be construed as legal advice.

I.  The Secretary of State shall promulgate rules to implement this program.

Added by Laws 2002, c. 415, § 1, eff. Nov. 1, 2002.

NOTE:  Editorially renumbered from § 60.13 of Title 22 to avoid a duplication in numbering.

§22-60.15.  Domestic abuse - Twenty-four-hour statewide telephone communication service - Notice of rights.

Upon the preliminary investigation of any crime involving domestic abuse, it shall be the duty of the first peace officer who interviews the victim of the domestic abuse to inform the victim of the twentyfourhour statewide telephone communication service established by Section 3-314 of Title 43A of the Oklahoma Statutes and to give notice to the victim of certain rights.  The notice shall consist of handing such victim the following statement:

"As a victim of domestic abuse, you have certain rights.  These rights are as follows:

1.  The right to request that charges be pressed against your assailant;

2.  The right to request protection from any harm or threat of harm arising out of your cooperation with law enforcement and prosecution efforts as far as facilities are available and to be provided with information on the level of protection available;

3.  The right to be informed of financial assistance and other social services available as a result of being a victim, including information on how to apply for the assistance and services; and

4.  The right to file a petition for a protective order or, when the domestic abuse occurs when the court is not open for business, to request an emergency temporary protective order."

Added by Laws 2002, c. 466, § 5, emerg. eff. June 5, 2002.

NOTE:  Editorially renumbered from § 60.13 of Title 22 to avoid a duplication in numbering.

§22-60.16.  Domestic abuse victims not to be discouraged from pressing charges - Warrantless arrests of certain persons - Emergency temporary order of protection.

Text effective July 1, 2005

(for text currently effective see following)

A.  A peace officer shall not discourage a victim of domestic abuse from pressing charges against the assailant of the victim.

B.  1.  A peace officer may arrest without a warrant a person anywhere, including a place of residence, if the peace officer has probable cause to believe the person within the preceding seventy-two (72) hours has committed an act of domestic abuse as defined by Section 60.1 of this title, although the assault did not take place in the presence of the peace officer.  A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim.

2.  An arrest, when made pursuant to this section, shall be based on an investigation by the peace officer of the circumstances surrounding the incident, past history of violence between the parties, statements of any children present in the residence, and any other relevant factors.  A determination by the peace officer shall be made pursuant to the investigation as to which party is the dominant aggressor in the situation.  A peace officer may arrest the dominant aggressor.

C.  When the court is not open for business, the victim of domestic abuse may request a petition for an emergency temporary order of protection.  The peace officer making the preliminary investigation shall:

1.  Provide the victim with a petition for an emergency temporary order of protection and, if necessary, assist the victim in completing the petition form.  The petition shall be in substantially the same form as provided by Section 60.2 of this title for a petition for protective order;

2.  Immediately notify, by telephone or otherwise, a judge of the district court of the request for an emergency temporary order of protection and describe the circumstances.  The judge shall inform the peace officer of the decision to approve or disapprove the emergency temporary order;

3.  Inform the victim whether the judge has approved or disapproved the emergency temporary order.  If an emergency temporary order has been approved, the officer shall provide the victim, or a responsible adult if the victim is a minor child or an incompetent person, with a copy of the petition and a written statement signed by the officer attesting that the judge has approved the emergency temporary order of protection and notify the victim that the emergency temporary order shall be effective only until the close of business on the next day that the court is open for business;

4.  Notify the person subject to the emergency temporary protection order of the issuance and conditions of the order.  Notification pursuant to this paragraph may be made personally by the officer or in writing.  A copy of the petition and the statement of the officer attesting to the order of the judge shall be made available to such person; and

5.  File a copy of the petition and the statement of the officer with the district court of the county immediately upon the opening of the court on the next day the court is open for business.

D.  The forms utilized by law enforcement agencies in carrying out the provisions of this section may be substantially similar to those used under Section 60.2 of this title.

Text effective until July 1, 2005

§22-60.16.  Domestic abuse victims not to be discouraged from pressing charges - Warrantless arrests of certain persons - Emergency temporary order of protection.

A.  A peace officer shall not discourage a victim of domestic abuse from pressing charges against the assailant of the victim.

B.  A peace officer may arrest without a warrant a person anywhere, including a place of residence, if the peace officer has probable cause to believe the person within the preceding seventy-two (72) hours has committed an act of domestic abuse as defined by Section 60.1 of this title, although the assault did not take place in the presence of the peace officer.  A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim.

C.  When the court is not open for business, the victim of domestic abuse may request a petition for an emergency temporary order of protection.  The peace officer making the preliminary investigation shall:

1.  Provide the victim with a petition for an emergency temporary order of protection and, if necessary, assist the victim in completing the petition form.  The petition shall be in substantially the same form as provided by Section 60.2 of Title 22 of the Oklahoma Statutes for a petition for protective order;

2.  Immediately notify, by telephone or otherwise, a judge of the district court of the request for an emergency temporary order of protection and describe the circumstances.  The judge shall inform the peace officer of the decision to approve or disapprove the emergency temporary order;

3.  Inform the victim whether the judge has approved or disapproved the emergency temporary order.  If an emergency temporary order has been approved, the officer shall provide the victim, or a responsible adult if the victim is a minor child or an incompetent person, with a copy of the petition and a written statement signed by the officer attesting that the judge has approved the emergency temporary order of protection and notify the victim that the emergency temporary order shall be effective only until the close of business on the next day that the court is open for business;

4.  Notify the person subject to the emergency temporary protection order of the issuance and conditions of the order.  Notification pursuant to this paragraph may be made personally by the officer or in writing.  A copy of the petition and the statement of the officer attesting to the order of the judge shall be made available to such person; and

5.  File a copy of the petition and the statement of the officer with the district court of the county immediately upon the opening of the court on the next day the court is open for business.

D.  The forms utilized by law enforcement agencies in carrying out the provisions of this section may be substantially similar to those used under Section 60.2 of Title 22 of the Oklahoma Statutes.

Added by Laws 2002, c. 466, § 6, emerg. eff. June 5, 2002.  Amended by Laws 2004, c. 516, § 3, eff. July 1, 2005.

NOTE:  Editorially renumbered from § 60.14 of Title 22 to avoid a duplication in numbering.

§22-60.17.  Consideration of certain victims' safety prior to release of defendant on bond - Emergency protective and restraining orders.

The court shall consider the safety of any and all alleged victims of domestic violence, stalking, harassment, sexual assault, or forcible sodomy where the defendant is alleged to have violated a protective order, committed domestic assault and battery, stalked, sexually assaulted, or forcibly sodomized the alleged victim or victims prior to the release of the alleged defendant from custody on bond.  The court, after consideration and to ensure the safety of the alleged victim or victims, may issue an emergency protective order pursuant to the Protection from Domestic Abuse Act.  The court may also issue to the alleged victim or victims, an order restraining the alleged defendant from any activity or action from which they may be restrained under the Protection from Domestic Abuse Act.  The protective order shall remain in effect until either a plea has been accepted, sentencing has occurred in the case, the case has been dismissed, or until further order of the court dismissing the protective order.

Added by Laws 2004, c. 516, § 4, eff. July 1, 2005.

§22-60.18.  Expungement of victim protective orders.

A.  Persons authorized to file a motion for expungement of victim protective orders (VPOs) issued pursuant to the Protection from Domestic Abuse Act in this state must be within one of the following categories:

1.  An ex parte order was issued to the plaintiff but later terminated due to dismissal of the petition before the full hearing, or denial of the petition upon full hearing, or failure of the plaintiff to appear for full hearing, and at least ninety (90) days have passed since the date set for full hearing;

2.  The plaintiff filed an application for a victim protective order and failed to appear for the full hearing and at least ninety (90) days have passed since the date last set by the court for the full hearing, including the last date set for any continuance, postponement or rescheduling of the hearing;

3.  The plaintiff or defendant has had the order vacated and three (3) years have passed since the order to vacate was entered; or

4.  The plaintiff or defendant is deceased.

B.  For purposes of this section:

1.  "Expungement" means the sealing of victim protective order (VPO) court records from public inspection, but not from law enforcement agencies, the court or the district attorney;

2.  "Plaintiff" means the person or persons who sought the original victim protective order (VPO) for cause; and

3.  "Defendant" means the person or persons to whom the victim protective order (VPO) was directed.

C.  1.  Any person qualified under subsection A of this section may petition the district court of the district in which the protective order pertaining to the person is located for the expungement and sealing of the court records from public inspection.  The face of the petition shall state whether the defendant in the protective order has been convicted of any violation of the protective order and whether any prosecution or complaint is pending in this state or any other state for a violation or alleged violation of the protective order that is sought to be expunged.  The petition shall further state the authority pursuant to subsection A of this section for eligibility for requesting the expungement.  The other party to the protective order shall be mailed a copy of the petition by certified mail within ten (10) days of filing the petition.  A written answer or objection may be filed within thirty (30) days of receiving the notice and petition.

2.  Upon the filing of a petition, the court shall set a date for a hearing and shall provide at least a thirty-day notice of the hearing to all parties to the protective order, the district attorney, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of the victim protective order (VPO) court record.

3.  Without objection from the other party to the victim protective order (VPO) or upon a finding that the harm to the privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public and safety interests of the parties to the protective order in retaining the records, the court may order the court record, or any part thereof, to be sealed from public inspection.  Any order entered pursuant to this section shall not limit or restrict any law enforcement agency, the district attorney or the court from accessing said records without the necessity of a court order.  Any order entered pursuant to this subsection may be appealed by any party to the protective order or by the district attorney to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court.

4.  Upon the entry of an order to expunge and seal from public inspection a victim protective order (VPO) court record, or any part thereof, the subject official actions shall be deemed never to have occurred, and the persons in interest and the public may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to the persons.

5.  Inspection of the protective order court records included in the expungement order issued pursuant to this section may thereafter be permitted only upon petition by the persons in interest who are the subjects of the records, or without petition by the district attorney or a law enforcement agency in the due course of investigation of a crime.

6.  Employers, educational institutions, state and local government agencies, officials, and employees shall not require, in any application or interview or otherwise, an applicant to disclose any information contained in sealed protective order court records.  An applicant need not, in answer to any question concerning the records, provide information that has been sealed, including any reference to or information concerning the sealed information and may state that no such action has ever occurred.  The application may not be denied solely because of the refusal of the applicant to disclose protective order court records information that has been sealed.

7.  The provisions of this section shall apply to all protective order court records existing in the district courts of this state on, before and after the effective date of this section.

8.  Nothing in this section shall be construed to authorize the physical destruction of any court records, except as otherwise provided by law for records no longer required to be maintained by the court.

9.  For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document.

10.  For the purposes of this act, district court index reference of sealed material shall be destroyed, removed or obliterated.

11.  Any record ordered to be sealed pursuant to this section may be obliterated or destroyed at the end of the tenyear period.

12.  Nothing herein shall prohibit the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to Section 2608 of Title 12 of the Oklahoma Statutes.

Added by Laws 2005, c. 113, § 1, eff. Nov. 1, 2005.

§2291.  Officer may command assistance.

When a sheriff or other public officer authorized to execute process, finds, or has reason to apprehend that resistance will be made to the execution of the process, he may command as many male inhabitants of his county as he may think proper, and may in manner and form as provided by law, and not otherwise, call any military company or companies in the county, armed and equipped, to assist him in overcoming the resistance, and if necessary, in seizing, arresting and confining the resisters and their aiders and abettors, to be punished according to law.

R.L.1910, § 5580.  

§2292.  Officer must report names of resisters.

The officer must certify to the court from which the process is issued, the names of the resisters and their aiders and abettors, to the end that they may be proceeded against for contempt.

R.L.1910, § 5581.  

§2293.  Refusal to assist officer a misdemeanor.

Every person commanded by a public officer to assist him in the execution of a process, as provided in Section 5580, who, without lawful cause, refuses or neglects to obey the commands, is guilty of a misdemeanor.

R.L.1910, § 5582.  

§2294.  Assistance from other counties.

If it appears to the Governor that the power of the county is not sufficient to enable the sheriff to execute process delivered to him, or to suppress riots and to preserve the peace, he must, on the application of the sheriff, or the judge, of any court of record of such county, order such a force from any other county or counties as is necessary, and all persons so ordered or summoned by the Governor or acting Governor, are required to attend and act; and any such persons who, without lawful cause, refuse or neglect to obey the command, are guilty of a misdemeanor.

R.L.1910, § 5583.  

§2295.  Governor to furnish military force, when.

Under the facts and circumstances mentioned in the last section, and when the civil power of the county is not deemed sufficient, it shall be the duty of the Governor to furnish a military force sufficient to execute the laws and to prevent resistance thereto, to suppress riots, execute process and preserve the peace.

R.L.1910, § 5584.  

§22101.  Unlawful assemblage.

Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff and his deputies, the officials governing the city or town, or the justices of the peace and marshals and constables and police thereof, or any of them, must go among the persons assembled, or as near to them as possible, and command them in the name of the state, immediately to disperse.

R.L.1910, § 5585.  

§22102.  Proceedings if assembly does not disperse  Commanding aid of others.

If the persons assembled do not immediately disperse, the magistrates and officers must arrest them or cause them to be arrested, that they may be punished according to law, and for that purpose may command the aid of all persons present or within the county.

R.L.1910, § 5586.  

§22103.  Refusal to assist.

If a person so commanded to aid the magistrates or officers neglect to do so he is deemed one of the rioters and is punishable accordingly.

R.L.1910, § 5587.  

§22104.  Neglect of officer respecting unlawful assembly a misdemeanor.

If a magistrate or officer having notice of an unlawful or riotous assembly mentioned in Section 5585 neglect to proceed to the place of the assembly, or as near thereto as he can with safety, and to exercise the authority with which he is invested for suppressing the same and arresting the offenders, he is guilty of a misdemeanor. R.L.1910, § 5588.  

§22105.  Officers may disperse assembly and arrest offenders  Commanding aid.

If the persons assembled and commanded to disperse do not immediately disperse, any two of the magistrates or officers mentioned in Section 5585, may command the aid of a sufficient number of persons, and may proceed in such manner as in their judgment is necessary, to disperse the assembly and arrest the offenders.

R.L.1910, § 5589.  

§22106.  Precautions before endangering life.

Every endeavor must be used, both by the magistrate and civil officers, and by the officer commanding the troops, which can be made consistently with the preservation of life, to induce or force the rioters to disperse before an attack is made upon them by which their lives may be endangered.

R.L.1910, § 5590.  

§22-107.  Offenses during riot or insurrection.

A person who, after the publication of a proclamation by the Governor or acting Governor, or who, after lawful notice as aforesaid to disperse and retire, resists or aids in resisting the execution of process in a county declared to be in a state of riot or insurrection, or who aids or attempts the rescue or escape of another from lawful custody or confinement, or who resists or aids in resisting a force ordered out by the Governor or any civil officer as aforesaid, to quell or suppress an insurrection or riot, is guilty of a felony, and is punishable by imprisonment in the state prison for not less than two (2) years.

R.L. 1910, § 5591.  Amended by Laws 1997, c. 133, § 436, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 320, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 436 from July 1, 1998, to July 1, 1999.

§22111.  Creation  Staff.

Each district attorney shall create within his office a Bogus Check Restitution Program and assign sufficient staff and resources for the efficient operation of said program.

Added by Laws 1982, c. 93, § 1, operative Oct. 1, 1982.  

§22112.  Referral of complaints  Guidelines.

A.  Referral of a bogus check complaint to the Bogus Check Restitution Program shall be at the discretion of the district attorney.  This act shall not limit the power of the district attorney to prosecute bogus check complaints.

B.  Upon receipt of a bogus check complaint, the district attorney shall determine if the complaint is one which is appropriate to be referred to the Bogus Check Restitution Program.

C.  In determining whether to refer a case to the Bogus Check Restitution Program, the district attorney shall consider the following guidelines:

1.  The amount of the bogus check;

2.  If there is a prior criminal record of the defendant;

3.  The number of bogus check complaints against the defendant previously received by the district attorney;

4.  Whether or not there are other bogus check complaints currently pending against the defendant; and

5.  The strength of the evidence of intent to defraud the victim.

Added by Laws 1982, c. 93, § 2, operative Oct. 1, 1982.  

§22113.  Notice of complaint.

A.  Upon referral of a complaint to the Bogus Check Restitution Program, a notice of the complaint shall be forwarded by mail to the defendant.

B.  The notice shall contain:

1.  The date and amount of the check;

2.  The name of the payee;

3.  The date before which the defendant must contact the office of the district attorney concerning the complaint; and

4.  A statement of the penalty for obtaining money, merchandise or services by means of a false and bogus check.

Added by Laws 1982, c. 93, § 3, operative Oct. 1, 1982.  

§22-114.  Restitution agreements.

A.  The district attorney may enter into a written restitution agreement with the defendant to defer prosecution on a false or bogus check for a period to be determined by the district attorney, not to exceed two (2) years, pending restitution being made to the victim of the bogus check as provided in this section.

B.  Each restitution agreement shall include a provision requiring the defendant to pay to the victim a Twenty-five Dollar ($25.00) fee and to the district attorney a fee equal to the amount which would have been assessed as court costs upon filing of the case in district court plus Twenty-five Dollars ($25.00) for each check covered by the restitution agreement; provided, every check in an amount of Fifty Dollars ($50.00) or more shall require a separate fee to be paid to the district attorney in an amount equal to the amount which would be assessed as court costs for the filing of a felony case in district court plus Twenty-five Dollars ($25.00).  This money shall be deposited in a special fund with the county treasurer to be known as the "Bogus Check Restitution Program Fund".  This fund shall be used by the district attorney to defray any lawful expense of the district attorney's office.  The district attorney shall keep records of all monies deposited to and disbursed from this fund.  The records of the fund shall be audited at the same time the records of county funds are audited.

C.  Restitution paid by the defendant to the victim shall include the face amount of the check plus any charges the victim may have been required to pay to a bank as the result of having received the bogus check.  If, instead of paying restitution directly to the victim, the defendant delivers restitution funds to the office of the district attorney, the district attorney shall deposit such funds in a depository account in the office of the county treasurer to be disbursed to the victim by a warrant signed by the district attorney or a member of the staff assigned to the Bogus Check Restitution Program.  The district attorney shall keep full records of all restitution monies received and disbursed. These records shall be audited at the same time the county funds are audited.

D.  Restitution paid by the defendant to the Oklahoma Tax Commission shall include the face amount of the check plus the administrative service fee authorized pursuant to Section 218 of Title 68 of the Oklahoma Statutes.  If the defendant delivers such restitution funds to the office of the district attorney instead of paying restitution directly to the Oklahoma Tax Commission, the district attorney shall deposit such funds in a depository account in the office of the county treasurer to be disbursed to the Oklahoma Tax Commission by warrant signed by the district attorney or a member of the staff assigned to the Bogus Check Restitution Program or shall transmit the restitution funds directly to the Oklahoma Tax Commission.

E.  If the defendant fails to comply with the restitution agreement, the district attorney may file an information and proceed with the prosecution of the defendant as provided by law.

Added by Laws 1982, c. 93, § 4, operative Oct. 1, 1982.  Amended by Laws 1986, c. 218, § 1, emerg. eff. June 9, 1986; Laws 2001, c. 18, § 1, eff. July 1, 2001; Laws 2001, c. 437, § 15, eff. July 1, 2001.

§22115.  District attorney's staff to perform certain duties.

Members of the district attorney's staff shall perform duties in connection with the Bogus Check Restitution Program in addition to any other duties which are assigned by the district attorney.

Added by Laws 1982, c. 93, § 5, operative Oct. 1, 1982.  

§22-116.  Annual reports.

A.  District attorneys shall prepare and submit an annual report to the District Attorneys Council showing total deposits and total expenditures in the Bogus Check Restitution Program.

B.  By September 15 of each year, the District Attorneys Council shall publish an annual report for the previous fiscal year of the Bogus Check Restitution Program.  A copy of the report shall be distributed to the President Pro Tempore of the Senate and the Speaker of the Oklahoma House of Representatives and the chairmen of the House and Senate Appropriations Committees.  Each district attorney shall submit information requested by the District Attorneys Council regarding the Bogus Check Restitution Program.  This report shall include the number of checks processed and the total dollar amount of such checks, the number of checks for which some restitution was made and the total amount of the restitution, the total amount of fees collected, the total cost of the program, and such other information as required by the District Attorneys Council.  The report shall provide totals by county and district.

Added by Laws 1988, c. 254, § 11, operative July 1, 1988.  Amended by Laws 1994, c. 295, § 4, eff. July 1, 1994.

§22-121.  Offenses commenced outside and consummated within the state.

When the commission of a public offense, commenced without this state, is consummated within its boundaries, the defendant is liable to punishment therefor in this state, though the defendant were out of this state at the time of the commission of the offense charged if the defendant consummated it in this state through the intervention of an innocent or guilty agent, or by any other means proceeding directly from the defendant, including the use of any technology, telephone, computer, or cyberspace device or application; and in such case, the jurisdiction is in the county in which the offense is consummated.

R.L.1910, § 5609.  Amended by Laws 2002, c. 97, § 1, emerg. eff. April 17, 2002.

§22122.  Jurisdiction in case of death from duel outside state.

When an inhabitant or resident of this state, by previous appointment or engagement, fights a duel, or is concerned as second therein, out of the jurisdiction of this state, and in the duel a wound is inflicted upon a person, whereof he dies in this state, the jurisdiction of the offense is in the county where the death happened.

R.L.1910, § 5610.  

§22123.  Evasion of statutes relative to dueling and challenges, jurisdiction.

When an inhabitant of this state shall have left the same for the purpose of evading the operation of the provisions of the statutes relating to dueling and challenges to fight, with the intent or for the purpose of doing any of the acts prohibited therein, the jurisdiction is in the county of which the offender was an inhabitant when the offense was committed, or in any county in which, in the opinion of the Governor, the evidence can be most conveniently obtained and produced, to be designated by him by written appointment, filed in the office of the clerk of the court of that county.

R.L.1910, § 5611.  

§22124.  Offense committed in two counties.

When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.

R.L.1910, § 5612.  

§22125.  Offense committed near boundary of county.

When a public offense is committed on the boundary of two or more counties, or within five hundred (500) yards thereof, the jurisdiction is in either county.

R.L.1910, § 5613.  

§22-125.1.  Venue for enforcement of Section 425 of Title 21.

Venue for criminal actions to enforce the provisions of Section 2 of this act, including criminal actions with respect to each of the alleged offenses included within a pattern of criminal offenses, as defined in Section 2 of this act, that have allegedly been committed, attempted or conspired to be committed by a person or persons, shall be in any county in which at least one alleged criminal offense has occurred that constitutes part of the alleged pattern of criminal offenses, it being the intent of this section that one district court may have jurisdiction over all the conduct, persons and property which are part of, or are directly related to, each and all of the alleged criminal offenses forming part of the alleged pattern of criminal offenses.  It is discretionary, not mandatory, to bring all criminal actions in one county when an alleged pattern of criminal offenses involves two or more counties.

Added by Laws 2004, c. 292, § 1, emerg. eff. May 11, 2004.

§22126.  Kidnapping, enticing away children and similar offenses, jurisdiction.

The jurisdiction of an indictment or information:

1.  For forcibly and without lawful authority seizing and confining another, or inveigling or kidnapping him, with intent, against his will, to cause him to be secretly confined or imprisoned in this state, or to be sent out of the state, or from one county to another; or,

2.  For decoying or taking or enticing away a child under the age of twelve (12) years, with intent to detain and conceal it from its parents, guardian, or other person having lawful charge of the child; or,

3.  For the inveigling, enticing, or taking away an unmarried female of previous chaste character, under the age of twentyone (21) years for the purpose of prostitution; or,

4.  For taking away any female under the age of sixteen (16) years from her father, mother, guardian or other person having the legal charge of her person without their consent either for the purpose of concubinage or prostitution,

Is in any county in which the offense is committed or into or out of which the person upon whom the offense was committed, may, in the commission of the offense, have been brought or in which an act was done by the defendant in instigating, procuring, promoting, aiding or in being an accessory to the commission of the offense, or in abetting the parties concerned therein.

R.L.1910, § 5614.  

§22128.  Stolen property moved, jurisdiction.

When property taken in one county, by burglary, robbery, larceny, or embezzlement, has been brought into another, the jurisdiction of the offense is in either county.  But if, before the beginning of the trial of the defendant in the latter, he be indicted or information be filed against him in the former county, the sheriff of the latter must, upon demand, deliver him to the sheriff of the former county, upon being served with a certified copy of the indictment or information, and upon a receipt indorsed thereon by the sheriff of the former county, of the delivery of the body of the defendant, and is, on filing the copy of the indictment and the receipt, exonerated from all liability in respect to the custody of the defendant.

R.L.1910, § 5616.  

§22129.  Accessory, jurisdiction in case of.

In the case of an accessory in the commission of a public offense, the jurisdiction is in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.

R.L.1910, § 5617.  

§22130.  Conviction or acquittal outside state or county a bar.

When an act charged as a public offense is within the jurisdiction of another territory, county or state, as well as this state, a conviction or acquittal thereof in the former is a bar to a prosecution therefor in this state.

R.L.1910, § 5618.  

§22131.  Conviction or acquittal in one county as bar to prosecution in another.

When an offense is in the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution thereof in another.

R.L.1910, § 5619.  

§22132.  Escape, jurisdiction of prosecution for.

The jurisdiction of a prosecution for escaping from prison is in any county of the state.

R.L.1910, § 5620.  

§22133.  Stealing property in another state  Receiving such stolen property.

The jurisdiction of a prosecution for stealing in any state or county, or other territory, the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought.

R.L.1910, § 6136.  

§22134.  Murder or manslaughter, jurisdiction in certain cases.

The jurisdiction of a prosecution for murder or manslaughter, when the injury which caused the death was inflicted in one county, and the party injured dies in another county, or out of the state, is in the county where the injury was inflicted.

R.L.1910, § 5622.  

§22135.  Principal not present, jurisdiction.

The jurisdiction of a prosecution against a principal in the commission of a public offense, when such principal is not present at the commission of the public offense, is in the same county as it would be under this article, if he were so present and aiding and abetting therein.

R.L.1910, § 5623.  

§22136.  Acceptance of plea of guilty or nolo contendere upon waiver of venue and consent thereto  Judgments.

If, in any criminal proceeding, the accused enters a plea of guilty or nolo contendere and waives his venue rights by express written waiver, and upon consent of the prosecuting attorneys of both the disposition county and the originating venue county, any judge in any district court is authorized to accept such plea for an offense committed in any county charged by complaint, indictment, information or other equivalent pleading, and may dispose of the offense or offenses set out in such pleadings.  An exemplified copy of the judgment shall constitute a judgment on the merits in the case in the court or courts of the originating venue county or counties.

Added by Laws 1985, c. 20, § 1, eff. Nov. 1, 1985.  

§22151.  No limitation of prosecutions for murder.

There is no limitation of the time within which a prosecution for murder must be commenced.  It may be commenced at any time after the death of the person killed.

R.L.1910, § 5624; Laws 1935, p. 20, § 1; Laws 1943, p. 84, § 1.  

§22-152.  Limitations in general.

A.  Prosecutions for the crimes of bribery, embezzlement of public money, bonds, securities, assets or property of the state or any county, school district, municipality or other subdivision thereof, or of any misappropriation of public money, bonds, securities, assets or property of the state or any county, school district, municipality or other subdivision thereof, falsification of public records of the state or any county, school district, municipality or other subdivision thereof, and conspiracy to defraud the State of Oklahoma or any county, school district, municipality or other subdivision thereof in any manner or for any purpose shall be commenced within seven (7) years after the discovery of the crime; provided, however, prosecutions for the crimes of embezzlement or misappropriation of public money, bonds, securities, assets or property of any school district, including those relating to student activity funds, or the crime of falsification of public records of any independent school district, the crime of criminal conspiracy, or the crime of embezzlement, pursuant to Sections 1451 through 1462 of Title 21 of the Oklahoma Statutes shall be commenced within five (5) years after the discovery of the crime.

B.  Prosecutions for criminal violations of any state income tax laws shall be commenced within five (5) years after the commission of such violation.

C.  1.  Prosecutions for the crime of rape or forcible sodomy, sodomy, lewd or indecent proposals or acts against children, involving minors in pornography pursuant to Section 886, 888, 1111, 1111.1, 1113, 1114, 1021.2, 1021.3 or 1123 of Title 21 of the Oklahoma Statutes, and child abuse pursuant to Section 7115 of Title 10 of the Oklahoma Statutes, shall be commenced within twelve (12) years after the discovery of the crime.

2.  However, prosecutions for the crimes listed in paragraph 1 of this subsection may be commenced at any time after the commission of the offense if:

a. the victim notified law enforcement within twelve (12) years after the discovery of the crime,

b. physical evidence is collected and preserved that is capable of being tested to obtain a profile from deoxyribonucleic acid (DNA), and

c. the identity of the offender is subsequently established through the use of a DNA profile using evidence listed in subparagraph b of this paragraph.

A prosecution under this exception must be commenced within three (3) years from the date on which the identity of the suspect is established by DNA testing.

D.  Prosecutions for criminal violations of any provision of the Oklahoma Wildlife Conservation Code shall be commenced within three (3) years after the commission of such offense.

E.  Prosecutions for the crime of criminal fraud or workers' compensation fraud pursuant to Section 1541.1, 1541.2, 1662 or 1663 of Title 21 of the Oklahoma Statutes shall commence within three (3) years after the discovery of the crime, but in no event greater than seven (7) years after the commission of the crime.

F.  Prosecution for the crime of false or bogus check, Section 1541.1, 1541.2, 1541.3 or 1541.4 of Title 21 of the Oklahoma Statutes, shall be commenced within five (5) years after the commission of such offense.

G.  In all other cases a prosecution for a public offense must be commenced within three (3) years after its commission.

H.  As used in paragraph 1 of subsection C of this section, "discovery" means the date that a physical or sexually related crime involving a victim under the age of eighteen (18) years of age is reported to a law enforcement agency, up to and including one (1) year from the eighteenth birthday of the child.

R.L. 1910, § 5625.  Amended by Laws 1943, p. 84, § 2, emerg. eff. April 12, 1943; Laws 1945, p. 97, § 1, emerg. eff. Feb. 1, 1945; Laws 1965, c. 245, § 1, emerg. eff. June 16, 1965; Laws 1968, c. 218, § 1, emerg. eff. April 23, 1968; Laws 1983, c. 74, § 1, eff. Nov. 1, 1983; Laws 1985, c. 112, § 5, eff. Nov. 1, 1985; Laws 1986, c. 218, § 2, emerg. eff. June 9, 1986; Laws 1989, c. 348, § 14, eff. Nov. 1, 1989; Laws 1990, c. 308, § 1, emerg. eff. May 30, 1990; Laws 1991, c. 182, § 64, eff. Sept. 1, 1991; Laws 1994, 2nd Ex. Sess., c. 1, § 2, emerg. eff. Nov. 4, 1994; Laws 2000, c. 245, § 3, eff. Nov. 1, 2000; Laws 2001, c. 18, § 2, eff. July 1, 2001; Laws 2002, c. 475, § 3; Laws 2005, c. 101, § 1, eff. Nov. 1, 2005.

§22153.  Absence from state, limitation does not run.

If when the offense is committed the defendant be out of the state, the prosecution may be commenced within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of or usually resident within the state, is part of the limitation.

R.L.1910, § 5626.  

§22161.  Magistrate defined.

A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.

R.L.1910, § 5627.  

§22162.  Who are magistrates.

The following persons are magistrates:

First.  Justices of the Supreme Court.

Second.  Judges of the Court of Criminal Appeals.

Third.  Judges of the Court of Appeals.

Fourth.  Judges of the district court, including associate district judges and special judges.

R.L.1910, § 5628; Laws 1968, c. 162, § 7; Laws 1970, c. 247, § 16, emerg. eff. April 15, 1970.  

§22171.  Complaint  Issuance of warrant of arrest.

When a complaint, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.

R.L.1910, § 5629. R.L.1910, § 5629.  

§22-171.1.  Arrest warrant for escaped prisoner.

A.  Any warden, superintendent or district supervisor within the Department of Corrections may make application to a judge for an arrest warrant upon any prisoner escaping from custody or confinement in an institution or facility of the Department of Corrections or from house arrest or the Preparole Conditional Supervision Program.  Said application shall be a statement verified by oath or affirmation alleging the occurrence of an escape.

B.  If the judge is satisfied that an escape has occurred, the judge shall affix his signature to a warrant of arrest of the prisoner.

C.  The person making application for the arrest warrant shall cause to be delivered as soon as possible, a copy of the issued warrant of arrest of the prisoner to the court clerk, the district attorney and the sheriff's office within the geographical area where the escape occurred.

D.  Nothing in this section shall prohibit the filing of any criminal charges by the district attorney against the prisoner charged with escape.

Added by Laws 1992, c. 166, § 1, eff. Sept. 1, 1992.

§22172.  Form of warrant.

A warrant of arrest is an order in writing, in the name of the state, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form:

County of ______________

The State of Oklahoma

To any sheriff, constable, marshal or policeman in this state (or in the county of ______________ as the case may be):

Complaint upon oath having been this day made before me that the crime of (designating it) has been committed, and accusing C. D. thereof, you are therefore commanded forthwith to arrest the above named C. D. and bring him before me at (naming the place), or, in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.

Dated at ________________ this ______ day of _________ 191__.

E. F., Justice of the Peace (or as the case may be).

R.L.1910, § 5629. R.L.1910, § 5629.  

§22173.  Requisites of warrant.

The warrant must specify the name of the defendant, or, if it is unknown to the magistrate, the defendant may be designated therein by any name.  It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the county, city, or town where it is issued, and if the offense charged is bailable, shall fix the amount of bail and an endorsement shall be made on the warrant, to the following effect:  "The defendant is to be admitted to bail in the sum of $_______." and be signed by the magistrate with his name of office.

Amended by Laws 1982, c. 149, § 1, operative Oct. 1, 1982.  

§22174.  Warrant directed to whom.

The warrant must be directed to and executed by a peace officer.

R.L.1910, § 5632. R.L.1910, § 5632.  

§22175.  County in which warrant may be served  Who may serve.

All warrants, except those issued for violation of city ordinances, may be served in any county in the state; and may be served by any peace officer to whom they may be directed or delivered.

R.L.1910, § 5633.  

§22176.  Taking defendant before magistrate in felony cases - Use of closed circuit television.

If the offense charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate who issued the warrants or some other magistrate in the county or the image of the defendant may be broadcast by closed circuit television to the magistrate.  A closed circuit television system may not be used under this section and Section 177 of this title unless the system provides for a two-way communication of image and sound between the arrested person and the magistrate.

R.L.1910, § 5634; Amended by Laws 1991, c. 178, § 1, eff. Sept. 1, 1991.

§22177.  Taking defendant before magistrate in misdemeanor cases - Use of closed circuit television.

If the offense charged in the warrant be a misdemeanor and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, or the image of the defendant may be broadcast by closed circuit television to the magistrate as provided in Section 176 of this title, who must admit the defendant to bail and take bail from him accordingly.

R.L.1910, § 5635; Amended by Laws 1991, c. 178, § 2, eff. Sept. 1, 1991.

§22178.  Proceedings when bail is taken.

On taking bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant.  The officer must then discharge the defendant from arrest, and must, without delay, deliver the warrant and undertaking to the clerk of the court at which the defendant is required to appear.

R.L.1910, § 5636.  

§22179.  When bail is not given.

If, on the admission of the defendant to bail, bail be not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in the next section.

R.L.1910, § 5637.  

§22180.  Magistrate absent  Taking defendant before another.

When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, he may, if the magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the same county.  The officer must, at the same time, deliver to the magistrate the warrant, with the return endorsed and subscribed by him.

R.L.1910, § 5638.  

§22181.  Delay in taking before magistrate not permitted.

The defendant must, in all cases, be taken before the magistrate without unnecessary delay.

R.L.1910, § 5639.  

§22182.  Complaint when defendant taken before magistrate other than one issuing warrant.

If the defendant be taken before a magistrate other than the one who issued the warrant, the complaint on which the warrant was granted must be sent to that magistrate, or if it cannot be procured, a new complaint must be filed.

R.L.1910, § 5640. R.L.1910, § 5640.  

§22183.  Offense triable in another county  Proceedings for arrest.

When a complaint is laid before a magistrate of the commission of a public offense triable in another county of the state, but showing that the defendant is in the county where the complaint is made, the same proceedings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the nearest and most accessible magistrate of the county in which the offense is triable, and the complaint of the informant, with the depositions, if any, of the witnesses who may have been produced, must be delivered by the magistrate to the officer to whom the warrant is delivered.

R.L.1910, § 5641.  

§22184.  Offense triable in another county  Taking defendant before magistrate.

The officer who executes the warrant must take the defendant before the nearest or most accessible magistrate of the county in which the offense is triable with his return endorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself.

R.L.1910, § 5642.  

§22185.  Offense triable in another county  Taking defendant before magistrate in misdemeanor cases.

If the offense charged in the warrant issued, pursuant to the second preceding section is a misdemeanor, the officer must upon being required by the defendant, take him before a magistrate of the county in which the warrant was issued, who must admit the defendant to bail, and immediately transmit the warrant, complaint, depositions, if any, and undertaking, to the clerk of the court in which the defendant is required to appear.

R.L. 1910, § 5643. R.L. 1910, § 5643.  

§22186.  Arrest defined.

Arrest is the taking of a person into custody, that he may be held to answer for a public offense.

R.L.1910, § 5644. R.L.1910, § 5644. R.L.1910, § 5644.  

§22187.  Arrest made by whom.

An arrest may be either:

1.  By a peace officer, under warrant,

2.  By a peace officer without a warrant; or,

3. By a private person.

R.L.1910, § 5645.  

§22188.  Aid to officer.

Every person must aid an officer in the execution of a warrant, if the officer require his aid.

R.L.1910, § 5646.  

§22189.  Arrest, when made.

If the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night.  If it is a misdemeanor, the arrest may be made only during the hours of six o'clock a.m. to ten o'clock p.m., inclusive, except as otherwise may be directed by  the magistrate endorsed upon the warrant.  Provided, an arrest on a warrant which charges a misdemeanor offense may be made at any time of the day or night if the defendant is in a public place or on a public roadway.

R.L. 1910, § 5647. R.L. 1910, § 5647.  Amended by Laws 1990, c. 148, § 1, emerg. eff. May 1, 1990.  

§22190.  Arrest, how made.

An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.

R.L.1910, § 5648.  

§22-190.1.  Custody of person arrested without warrant for nonbailable offense.

The person, when arrested without warrant for an offense not bailable, shall be held in custody by the sheriff of the county in which the arrest was made.  If the sheriff has contracted for the custody of prisoners in the county, the contractor shall be required to hold in custody any prisoner delivered to the contractor pursuant to this section.

Added by Laws 2003, c. 199, § 3, eff. Nov. 1, 2003.

§22191.  Restraint which is permissible.

The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention.

R.L.1910, § 5649.  

§22192.  Officer must show warrant.

The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant within a reasonable time under the circumstances, if requested.

Amended by Laws 1983, c. 294, § 2, eff. Nov. 1, 1983.  

§22193.  Resistance, means to overcome.

If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

R.L.1910, § 5651.  

§22194.  Officer may break open door or window, when.

The officer may break open an outer or inner door or window of a dwelling house, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance.

R.L.1910, § 5652.  

§22195.  Officer's breaking door or window to liberate himself or another arrester.

An officer may break open an outer or inner door or window of a dwelling house for the purposes of liberating a person who, having entered for the purpose of making an arrest, is detained therein, or when necessary for his own liberation.

R.L.1910, § 5653. R.L.1910, § 5653.  

§22-196.  Arrest without warrant by officer.

A peace officer may, without a warrant, arrest a person:

1.  For a public offense, committed or attempted in the officer's presence;

2.  When the person arrested has committed a felony, although not in the officer's presence;

3.  When a felony has in fact been committed, and the officer has reasonable cause to believe the person arrested to have committed it;

4.  On a charge, made upon reasonable cause, of the commission of a felony by the party arrested;

5.  When the officer has probable cause to believe that the party was driving or in actual physical control of a motor vehicle involved in an accident upon the public highways, streets or turnpikes and was under the influence of alcohol or intoxicating liquor or who was under the influence of any substance included in the Uniform Controlled Dangerous Substances Act, Sections 2101 et seq. of Title 63 of the Oklahoma Statutes;

6.  Anywhere, including a place of residence of the person, if the peace officer has probable cause to believe the person within the preceding seventy-two (72) hours has committed an act of domestic abuse as defined by Section 60.1 of this title, although the assault did not take place in the presence of the peace officer.  A peace officer may not arrest a person pursuant to this section without first observing a recent physical injury to, or an impairment of the physical condition of, the alleged victim;

7.  When a peace officer, in accordance with the provisions of Section 60.9 of this title, is acting on a violation of a protective order offense; or

8.  When the officer has probable cause to believe that the person has threatened another person as defined in subsection B of Section 14 of this act.

R.L.1910, § 5654.  Amended by Laws 1975, c. 228, § 1, eff. Oct. 1, 1975; Laws 1977, c. 27, § 1, eff. Oct. 1, 1977; Laws 1982, c. 269, § 1, eff. Oct. 1, 1982; Laws 1987, c. 174, § 2, operative July 1, 1987; Laws 1994, c. 316, § 2, emerg. eff. June 8, 1994; Laws 2000, c. 370, § 12, eff. July 1, 2000; Laws 2001, c. 437, § 16, eff. July 1, 2001.

§22197.  Arrest without warrant, breaking door or window.

To make an arrest, as provided in the last section, the officer may break open an outer or inner door or window of a dwelling house, if, after notice of his office and purpose, he be refused admittance.

R.L.1910, § 5655.  

§22198.  Nighttime, arrest of suspected felon.

He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest though it afterward appear that the felony had not been committed.

R.L.1910, § 5656.  

§22199.  Authority must be stated on arrest without warrant, when.

When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense, or is pursued immediately after an escape.

R.L.1910, § 5657.  

§22200.  Arrest by bystander  Officer may take defendant before magistrate.

He may take before a magistrate, a person, who being engaged in a breach of the peace, is arrested by a bystander and delivered to him.

R.L.1910, § 5658. R.L.1910, § 5658.  

§22201.  Offense committed in presence of magistrate.

When a public offense is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.

R.L. 1910, Sec. 5659.

§22202.  Arrest by private person.

A private person may arrest another:

1.  For a public offense committed or attempted in his presence.

2.  When the person arrested has committed a felony although not in his presence.

3.  When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

R.L.1910, § 5659.  

§22203.  Private person must inform person of cause of arrest.

He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in actual commission of the offense or when he is arrested on pursuit immediately after its commission.

R.L.1910, § 5661.  

§22-204.  Private person may break door or window.

If the person to be arrested has committed a felony, and a private person, after notice of the intention to make the arrest, be refused admittance, the private person may break open an outer or inner door or window of the dwelling house of the person to be arrested, for the purpose of making the arrest.

R.L.1910, § 5662.  Amended by Laws 2002, c. 460, § 15, eff. Nov. 1, 2002.

§22205.  Private person making arrest must take defendant to magistrate or officer.

A private person who has arrested another for the commission of a public offense, must, without unnecessary delay, take him before a magistrate or deliver him to a peace officer.

R.L.1910, § 5663.  

§22206.  Disarming person arrested.

Any person making an arrest must take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.

R.L.1910, § 5664. R.L.1910, § 5664.  

§22207.  Pursuit and arrest of escaped prisoner.

If a person arrested escape or be rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him, at any time, and in any place in the state.

R.L.1910, § 5665.  

§22208.  Breaking door or window to arrest person escaping.

To take the person escaping or rescued, the person pursuing may, after notice of his intention and refusal of admittance, break open an outer or inner door or window of a dwelling house.

R.L.1910, § 5666. R.L.1910, § 5666.  

§22209.  Citation to appear  Issuance  Summons  Failure to appear.

(1) A law enforcement officer who has arrested a person on a misdemeanor charge or violation of city ordinance, without a warrant, may issue a citation to such person to appear in court.

(2) In issuing a citation hereunder the officer shall proceed as follows:

(a) He shall prepare a written citation to appear in court, containing the name and address of the cited person and the offense charged, and stating when the person shall appear in court.  Unless the person requests an earlier date, the time specified in the citation to appear shall be at least five (5) days after the issuance of the citation.

(b) One copy of the citation to appear shall be delivered to the person cited, and such person shall sign a duplicate written citation which shall be retained by the officer.

(c) The officer shall thereupon release the cited person from any custody.

(d) As soon as practicable, the officer shall file one copy of the citation with the court specified therein and shall deliver one copy to the prosecuting attorney.

(3) In any case in which the judicial officer finds sufficient grounds for issuing a warrant, he may issue a summons commanding the defendant to appear in lieu of a warrant.

(4) If a person summoned fails to appear in response to the summons, a warrant for his arrest shall issue, and any person who willfully fails to appear in response to a summons is guilty of a misdemeanor.

Laws 1967, c. 250, § 1, emerg. eff. May 8, 1967.  

§22221.  Authority of officers of another state.

Any member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.

Laws 1949, p. 212, § 1.  

§22222.  Taking prisoner before magistrate.

If an arrest is made in this state by an officer of another state in accordance with the provisions of Section 1 of this act he shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.  If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state or admit him to bail for such purpose.  If the magistrate determines that the arrest was unlawful he shall discharge the person arrested. Laws 1949, p. 212, § 1.  

§22223.  Arrests otherwise lawful.

Section 1 of this act shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

Laws 1949, p. 212, § 3.  

§22224.  State includes District of Columbia.

For the purpose of this act the word "state" shall include the District of Columbia.

Laws 1949, p. 212, § 4.  

§22225.  Fresh pursuit defined.

The term "fresh pursuit" as used in this act shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony.  It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is a reasonable ground for believing that felony has been committed.  Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

Laws 1949, p. 212, § 5.  

§22227.  Partial invalidity.

If any part of this act is for any reason declared void, it is declared to be the intent of this act that such invalidity shall not affect the validity of the remaining portions of this act.

Laws 1949, p. 213, § 7. Laws 1949, p. 213, § 7.  

§22228.  Short Title.

This act may be cited as the Uniform Act on Fresh Pursuit.

Laws 1949, p. 213, § 8.  

§22231.  Misdemeanors  Warrant for arrest  Complaint submitted to district attorney  Cost bond.

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.

R.L.1910, § 6176.  

§22232.  Form of cost bond.

The bond may be substantially in the following form:

State of Oklahoma, against (naming the defendant).  I, (naming the principal) as principal and .........  as surety bind ourselves to pay all costs in this cause if the defendant is acquitted. Signed this .........  day of ..........  , 19....

The surety must qualify before the bond is approved.

R.L.1910, § 6177.  

§22233.  Judgment on bond.

In all cases where bonds have been given under the provisions of this chapter, and the maker thereof shall be liable thereon, by the conviction or acquittal of the defendant, the court shall, at the time of rendering judgment for or against the defendant, render such judgment as may be proper on the bond, and issue execution thereon, as in cases of a civil judgment.

R.L.1910, § 6178.  

§22251.  Magistrate must inform defendant of charge and rights.

When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination before any further proceedings are had.

R.L.1910, § 5667.  

§22252.  Defendant allowed counsel  Messages to counsel  Change of venue.

He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name.  The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena:  Provided, However, that at any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.

R.L.1910, § 5668.  

§22253.  Defendant to be examined.

The magistrate must without a jury, immediately after the appearance of counsel, or if none appear and the defendant require the aid of counsel, after waiting a reasonable time therefor, proceed to examine the case.  The defendant may be sworn and testify in his own behalf as in civil cases.

R.L.1910, § 5669.  

§22254.  Adjournment of examination.

The examination must be completed at one session unless the magistrate for good cause adjourn it.

R.L.1910, § 5670.  

§22255.  Disposition of defendant on adjournment.

If an adjournment be had for any cause, the magistrate must commit the defendant for examination, or discharge him from custody upon a sufficient bail, or upon the deposit of money as provided in this code, as security for his appearance at the time to which the examination is adjourned.

R.L.1910, § 5671.  

§22256.  Commitment for examination.

The commitment for examination is by an indorsement signed by the magistrate, on the warrant of arrest, to the following effect:

The within named A B, having been brought before me under this warrant, and having failed to give bail for his appearance, is committed to the sheriff of the county of .......  (or to the marshal of the city of ........ , as the case may be), to await examination on the .....  day of ...... , 1 ....... , at ....... o'clock, at which time you will have his body before me at my office.

R.L.1910, § 5672.  

§22257.  Duty of magistrate on examination  Subpoenas for witnesses.

At the examination the magistrate must, in the first place, read to the defendant the complaint on file before him.  He must, also, after the commencement of the prosecution, issue subpoenas for any witnesses required by the prosecutor or the defendant.

R.L.1910, § 5673.  

§22-258.  Preliminary examinations and proceedings thereon.

First:  The witnesses must be examined in the presence of the defendant, and may be cross-examined by him.  On the request of the district attorney, or the defendant, all the testimony must be reduced to writing in the form of questions and answers and signed by the witnesses, or the same may be taken in shorthand and transcribed without signing, and in both cases filed with the clerk of the district court, by the examining magistrate, and may be used as provided in Section 333 of this title.  In no case shall the county be liable for the expense in reducing such testimony to writing, unless ordered by the judge of a court of record.

Second:  The district attorney may, on approval of the county judge or the district judge, issue subpoenas in felony cases and call witnesses before him and have them sworn and their testimony reduced to writing and signed by the witnesses at the cost of the county.  Such examination must be confined to some felony committed against the statutes of the state and triable in that county, and the evidence so taken shall not be receivable in any civil proceeding.  A refusal to obey such subpoena or to be sworn or to testify may be punished as a contempt on complaint and showing to the county court, or district court, or the judges thereof that proper cause exists therefor.

Third:  No preliminary information shall be filed without the consent or endorsement of the district attorney, unless the defendant be taken in the commission of a felony, or the offense be of such character that the accused is liable to escape before the district attorney can be consulted.  If the defendant is discharged and the information is filed without authority from or endorsement of the district attorney, the costs must be taxed to the prosecuting witness, and the county shall not be liable therefor.

Fourth:  The convening and session of a grand jury does not dispense with the right of the district attorney to file complaints and informations, conduct preliminary hearings and other routine matters, unless otherwise specifically ordered, by a written order of the court convening the grand jury; made on the court's own motion, or at the request of the grand jury.

Fifth:  There shall be no preliminary examinations in misdemeanor cases.

Sixth:  A preliminary magistrate shall have the authority to limit the evidence presented at the preliminary hearing to that which is relevant to the issues of:  (1) whether the crime was committed, and (2) whether there is probable cause to believe the defendant committed the crime.  Once a showing of probable cause is made the magistrate shall terminate the preliminary hearing and enter a bindover order; provided, however, that the preliminary hearing shall be terminated only if the state made available for inspection law enforcement reports within the prosecuting attorney's knowledge or possession at the time to the defendant five (5) working days prior to the date of the preliminary hearing.  The district attorney shall determine whether or not to make law enforcement reports available prior to the preliminary hearing.  If reports are made available, the district attorney shall be required to provide those law enforcement reports that the district attorney knows to exist at the time of providing the reports, but this does not include any physical evidence which may exist in the case.  This provision does not require the district attorney to provide copies for the defendant, but only to make them available for inspection by defense counsel.  In the alternative, upon agreement of the state and the defendant, the court may terminate the preliminary hearing once a showing of probable cause is made.

Seventh:  A preliminary magistrate shall accept into evidence as proof of prior convictions a noncertified copy of a Judgment and Sentence when the copy appears to the preliminary magistrate to be patently accurate.  The district attorney shall make a noncertified copy of the Judgment and Sentence available to the defendant no fewer than five (5) days prior to the hearing.  If such copy is not made available five (5) days prior to the hearing, the court shall continue the portion of the hearing to which the copy is relevant for such time as the defendant requests, not to exceed five (5) days subsequent to the receipt of the copy.

Eighth:  The purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime.

R.L.1910, § 5674.  Amended by Laws 1913, c. 68, p. 106, § 1; Laws 1961, p. 235, § 1, eff. Oct. 27, 1961; Laws 1994, c. 292, § 3, eff. Sept. 1, 1994; Laws 2002, c. 460, § 16, eff. Nov. 1, 2002; Laws 2003, c. 337, § 1, eff. Nov. 1, 2003.

§22-259.  Order of witnesses.

When the examination of the witnesses on the part of the state is closed, any witnesses the defendant may produce may be sworn and examined upon proper offer of proof made by defendant and if such offer of proof shows that additional testimony is relevant to the issues of a preliminary examination.

R.L. 1910, § 5675.  Amended by Laws 1994, c. 292, § 4, eff. Sept. 1, 1994.

§22260.  Magistrate to keep depositions  Inspection.

The magistrate or his clerk must keep the depositions taken on the examination, if any have been taken, and the statement of the defendant, if any, until they are returned to the proper court, and must not permit them to be inspected by any person except a judge of a court having jurisdiction of the offense, the district attorney, and the defendant and his counsel.

R.L.1910, § 5676.  

§22261.  Depositions, violation of provisions regarding.

A violation of the provisions of the last section is punishable as a misdemeanor.

R.L.1910, § 5677.  

§22262.  Discharge of defendant, when.

After hearing the proofs and the statement of the defendant, if he have one, or his testimony if he testifies if it appear either that a public offense has not been committed, or that a public offense has been committed, but there is not sufficient cause to believe the defendant guilty thereof, the magistrate must order the defendant to be discharged, by an endorsement on the complaint over his signature to the following effect:

There being no sufficient cause to believe the within named A. B. guilty of the offense within mentioned, I order him to be discharged.

§22263.  Costs taxed against complainant, when.

If the defendant on a preliminary examination for a public offense be discharged as provided in the last section and if the magistrate find that the prosecution was malicious and without probable cause, he shall enter such judgment on his docket and tax the costs against the complaining witness which shall be enforced as judgments for costs in criminal cases, and execution may issue therefor.

R.L.1910, § 5679.  

§22264.  Defendant held to answer.

If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner endorse on the complaint an order signed by him to the following effect:

It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same.

§22265.  Commitment when offense is not bailable.

If the offense be not bailable, the following words or words to the same effect, must be added to the endorsement:

And that he is hereby committed to the sheriff of ....... (or to the marshal of the city of ........ , or as the case may be.)

R.L.1910, § 5681.  

§22266.  When offense is bailable.

If the offense is bailable, and bail is taken by the magistrate, the following words, or words to the same effect, must be added to the endorsement mentioned in the second preceding section:

And I have admitted him to bail, to answer, by the undertaking hereto annexed.

R.L.1910, § 5682.  

§22267.  If bail is not taken.

If the offense is bailable, and the defendant is admitted to bail, but the bail have not been taken, the following words, or words to the same effect, must be added to such endorsement:

And that he is admitted to bail in the sum of ........ Dollars, and be committed to the sheriff of the county of ........ (or marshal of the city of ........ , or as the case may be), until said bail be given.

R.L.1910, § 5683. R.L.1910, § 5683.

§22268.  Commitment.

If the magistrate order the defendant to be committed as provided in the three preceding sections, he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer, to whom he is committed, or if that officer be not present, to a peace officer, who must immediately deliver the defendant into the proper custody, together with the commitment.

R.L.1910, § 5684.  

§22269.  Form of commitment.

The commitment must be to the following effect:

County of .........

The State of Oklahoma.

To the sheriff of the county of ......... , (or the marshal of the city of ......... , as the case may be):

An order having been this day made by me, that A B be held to answer upon a charge of (stating briefly the nature of the offense, with time and place as near as may be), you are commanded to receive him into your custody, and detain him until he is legally discharged.

Dated at ....... , this .......  day of ..... , 191....

       C............. ,D...................

Justice of the Peace (or as the case may be).

R.L.1910, § 5685.  

§22270.  Witnesses to give undertaking.

On holding the defendant to answer the magistrate may take from each of the material witnesses examined before him on the part of the state, a written undertaking, without surety, to the effect that he will appear and testify at the court to which the complaint and deposition, if any are to be sent or that he will forfeit such sum as the magistrate may fix and determine.

R.L.1910, § 5686.  

§22271.  Sureties may be required for witness.

When the magistrate is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify, unless security be required, he may order the witness to enter into a written undertaking, with such sureties and in such sum as he may deem proper, for his appearance, as specified in the last section.

R.L.1910, § 5687.  

§22273.  Witness not giving undertaking committed, when.

If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the magistrate must commit him to prison until he comply, or is legally discharged.

R.L.1910, § 5689.  

§22274.  Subsequent security may be demanded  Arrest of witness.

When, however, any material witness on the part of the people has been discharged on his undertaking, without surety, if afterwards, on the sworn application of the district attorney or other person on behalf of the state, made to the magistrate or to any judge, it satisfactorily appears that the presence of such witness or any other person on the part of the people is material or necessary on the trial in court, such magistrate or judge may compel such witness, or any other material witness on the part of the state, to give an undertaking with sureties, to appear on the said trial and give his testimony therein; and, for that purpose, the said magistrate or judge may issue a warrant against such person, under his hand, with or without seal, directed to a sheriff, marshal or other officer, to arrest such person and bring him before such magistrate or judge.

R.L.1910, § 5690.  

§22275.  Arrested witness may be confined.

In case the person so arrested shall neglect or refuse to give said undertaking in the manner required by said magistrate or judge, he may issue a warrant of commitment against such person, which shall be delivered to said sheriff or other officer, whose duty it shall be to convey such person to the jail mentioned in said warrant, and the said person shall remain in confinement until he shall be removed to the grand jury and to the court, for the purpose of giving his testimony, or until he shall have given the undertaking required by said magistrate or judge.

R.L.1910, § 5691.  

§22276.  Magistrate discharging or holding defendant must return papers and record to court.

When a magistrate has discharged a defendant, or has held him to answer, he must return immediately to the clerk of the district court of the county, the warrant, if any, the complaint, the depositions, if any have been taken, of all the witnesses examined before him, the statement of the defendant, if he have made one, and all undertakings of bail or for the appearance of witnesses, taken by him, together with a certified record of the proceedings as they appear on his docket.

R.L.1910, § 5692.  

§22301.  Manner of prosecution of offenses.

Every felony must be prosecuted by indictment or information in the district or superior court.  Misdemeanors must be prosecuted by information, except as otherwise provided by law:  Provided, however, that the district court or the judge thereof, may, by order made, direct that any particular misdemeanor be presented to the grand jury, and when so ordered it may be prosecuted by indictment.

R.L.1910, § 5693.  

§22302.  Indictment defined.

An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a public offense.

R.L.1910, § 5717.  

§22-303.  Subscription, endorsement and verification of information - Excusing endorsement.

A.  The district attorney shall subscribe the district attorney's name to informations filed in the district court and endorse thereon the names and last-known addresses of all the witnesses known to the district attorney at the time of filing the same, if intended to be called by the district attorney at a preliminary examination or at trial.  Thereafter, the district attorney shall also endorse thereon the names and last-known addresses of such other witnesses as may afterwards become known to the district attorney, if they are intended to be called as witnesses at a preliminary examination or at trial, at such time as the court may by rule prescribe.

Upon filing of an application by the district attorney, notice to defense counsel, and hearing establishing need for witness protection or preservation of the integrity of evidence, the district court may excuse witness endorsement, or some part thereof.  Such proceedings shall be conducted in camera, and the record shall be sealed and filed in the office of the district court clerk, and shall not be opened except by order of the district court.

B.  Notwithstanding other provisions of law, when a law enforcement officer issues a citation or ticket as the basis for a complaint or information, for a violation of law declared to be a misdemeanor, the citation or ticket shall be properly verified if:

1.  The issuing officer subscribes the officer's signature on the citation, ticket or complaint to the following statement:

"I, the undersigned issuing officer, hereby certify and swear that I have read the foregoing information and know the facts and contents thereof and that the facts supporting the criminal charge stated therein are true."

Such a subscription by an issuing officer, in all respects, shall constitute a sworn statement, as if sworn to upon an oath administered by an official authorized by law to administer oaths; and

2.  The citation or ticket states the specific facts supporting the criminal charge and the ordinance or statute alleged to be violated; or

3.  A complainant verifies by oath, subscribed on the citation, ticket or complaint, that the complainant has read the information, knows the facts and contents thereof and that the facts supporting the criminal charge stated therein are true.  For purpose of such an oath and subscription, any law enforcement officer of the state or of a county or municipality of the state issuing the citation, ticket or complaint shall be authorized to administer the oath to the complainant.

R.L. 1910, § 5694.  Amended by Laws 1980, c. 136, § 1, emerg. eff. April 15, 1980; Laws 1991, c. 35, § 1, eff. Sept. 1, 1991; Laws 1992, c. 68, § 1, eff. Sept. 1, 1992; Laws 2004, c. 275, § 9, eff. July 1, 2004.

§22304.  Definitions.

As used in this act:

1.  "Public body" means the governing bodies of all municipalities located within the State of Oklahoma, boards of county commissioners of the counties in the State of Oklahoma, boards of public and higher education in the State of Oklahoma and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, and shall include all committees or subcommittees of any public body.  It shall not mean the state judiciary or the State Legislature or administrative staffs of public bodies, including, but not limited to, faculty meetings and athletic staff meetings of institutions of higher education, when said staffs are not meeting with the public body.

2.  "Meeting" means the conducting of business of a public body by a majority of its members being personally together.

3.  "Regularly scheduled meeting" means a meeting at which the regular business of the public body is conducted.

4.  "Special meeting" means any meeting of a public body other than a regularly scheduled meeting or emergency meeting.

5.  "Emergency meeting" means any meeting called for the purpose of dealing with an emergency.  For purposes of this act, an emergency is defined as a situation involving injury to persons or injury and damage to public or personal property or immediate financial loss when the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss.

6.  "Continued or reconvened meeting" means a meeting which is assembled for the purpose of finishing business appearing on an agenda of a previous meeting.  For the purposes of this act, only matters on the agenda of the previous meeting at which the announcement of the continuance is made may be discussed at a continued or reconvened meeting.

R.L.1910, § 5695.  

§22305.1.  Deferred prosecution programs  Guidelines  Factors considered.

Before the filing of an information against a person accused of committing a crime, the State of Oklahoma, through its district attorney, may agree with an accused to defer the filing of a criminal information for a period not to exceed two (2) years.

The State of Oklahoma may include any person in a deferred prosecution program if it is in the best interests of the accused and not contrary to the public interest.  Each district attorney shall adopt and promulgate guidelines which shall indicate what factors shall be considered in including an accused in the deferred prosecution program.  The guidelines shall insure that the State of Oklahoma considers in each case at least the following factors:

1.  Whether the State of Oklahoma has sufficient evidence to achieve conviction;

2.  The nature of the offense with priority given to first offenders and nonviolent crimes;

3.  Any special characteristics of the accused;

4.  Whether the accused will cooperate and benefit from a deferred prosecution program;

5.  Whether available programs are appropriate to the accused person's needs;

6.  Whether the services for the accused are more readily available from the community or from the corrections system;

7.  Whether the accused constitutes a substantial danger to others;

8.  The impact of the deferred prosecution on the community;

9.  The recommendations of the law enforcement agency involved in the case;

10.  The opinions of the victim; and

11.  Any mitigating or aggravating circumstances.

Laws 1979, c. 226, § 1, eff. Oct. 1, 1979.

§22-305.2.  District attorney deferred prosecution.

A.  If an accused qualifies for the deferred prosecution program, the accused and the State of Oklahoma, through the district attorney, may execute an agreement whereby the accused agrees to waive any rights to a speedy accusation, a speedy trial, and any statute of limitations, and agrees to fulfill such conditions to which the accused and the State of Oklahoma may agree including, but not limited to, restitution and community services.

B.  The accused, as consideration for entering into a deferred prosecution agreement, consents and agrees to a full and complete photographic record of property which was to be used as evidence.   The photographic record shall be competent evidence of the property and admissible in any criminal action or proceeding as the best evidence.

C.  Property shall be returned to its owner only after the photographic record is made subject to the following conditions:

1.  Property, except that which is prohibited by law, shall be returned to its owner after proper verification of title;

2.  The return of property to the owner shall be without prejudice to the state or to any person who may have a claim against the property; and

3.  When property is returned, the recipient shall sign, under penalty of perjury, a declaration of ownership which shall be retained by the police department or sheriff's office.

D.  As additional consideration for the agreement, the State of Oklahoma shall agree not to file an information if the accused satisfactorily completes the conditions of the agreement.

E.  The agreement between the accused and the State of Oklahoma may include provisions whereby the accused agrees to be supervised in the community.  If the accused is required to be supervised pursuant to the terms of the agreement, the person shall be required to pay a supervision fee to be established by the supervisory agency.  The supervision fee shall be paid to the supervisory agency as required by the rules of the supervisory agency.  The supervisory agency shall monitor the person for compliance with the conditions of the agreement.  The supervisory agency shall report to the district attorney on the progress of the accused, and shall report immediately if the accused fails to report or participate as required by the agreement.

F.  The agreement between the parties may require the accused to participate or consult with local service providers, including the Department of Human Services, the Department of Mental Health and Substance Abuse Services, the Employment Security Commission, federal services agencies, other state or local agencies, colleges, universities, technology center schools, and private or charitable service organizations.  When the accused is required to participate or consult with any service provider, a program fee may be required unless the fee would impose an unnecessary hardship on the person.  The program fee shall be established by the service provider based upon a sliding scale.  Any state agency called upon for assistance in a deferred prosecution program by any district attorney shall render services and assistance as available.  Any supervision fee or program fee authorized by this section may be waived in whole or in part when the accused is indigent.  No person who is otherwise qualified for a deferred prosecution program shall be denied services or supervision based solely on the person's inability to pay a fee or fees.

G.  The agreement between the parties may require the accused to pay a victim compensation assessment pursuant to the provisions of Section 142.18 of Title 21 of the Oklahoma Statutes.  The amount of the assessment shall be agreed to by the parties and shall be within the amounts specified in Section 142.18 of Title 21 of the Oklahoma Statutes for the offense charged.

H.  Any deferred prosecution agreement including, but not limited to, any fee, sliding scale fee, compensation, contract, assessment, or other financial agreement charged or waived by the accused or the State of Oklahoma shall be a record open to the public.

I.  1.  On or after the effective date of this act, each office of the district attorney shall, upon request and within a reasonable time, provide the name and other identifying information of an accused entering into a deferred prosecution agreement.

2.  A deferred prosecution agreement entered into prior to the effective date of this act shall not be a record open to the public, unless confidentiality was waived as a condition of the agreement.

Added by Laws 1979, c. 226, § 2, eff. Oct. 1, 1979.  Amended by Laws 1984, c. 21, § 2, emerg. eff. March 20, 1984; Laws 1990, c. 51, § 15, emerg. eff. April 9, 1990; Laws 1996, c. 304, § 1, emerg. eff. June 10, 1996; Laws 1997, c. 133, § 72, eff. July 1, 1999; Laws 1999, 1st Ex. Sess., c. 5, § 23, eff. July 1, 1999; Laws 2000, c. 278, § 1, eff. July 1, 2000; Laws 2001, c. 33, § 20, eff. July 1, 2001.

NOTE:  Laws 1998, 1st Ex. Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 72 from July 1, 1998, to July 1, 1999.

§22-305.3.  Termination of deferred prosecution agreement.

A.  Both the State of Oklahoma and the accused may mutually terminate the deferred prosecution at any time, and the case shall proceed as if there had been no agreement.  If the State of Oklahoma makes the termination decision unilaterally, it shall only do so in light of all the relevant circumstances of the case.  Arrest of the accused for a subsequent offense shall not automatically terminate the agreement.  If the State of Oklahoma should decide to terminate the agreement, it shall:

1.  Send a written notice of termination to the accused and the attorney for the accused, if any, explaining the reasons for the termination;

2.  Disclose to the accused or the attorney for the accused the evidence supporting the decision to terminate; and

3.  Afford the accused the opportunity to be heard and present evidence, and crossexamine witnesses before a judge of the district court.  The accused shall have ten (10) days from the date of mailing of the notice to file a written request with the court clerk for the county in which a charge is pending for the hearing, after which the right to a hearing shall be waived.  The burden shall be upon the State of Oklahoma to prove that the accused did not fulfill the conditions of the agreement, and that an information should be filed.

B.  On and after the effective date of this act, if an agreement is terminated by the State of Oklahoma for failure of the person to comply with the terms of the deferred prosecution agreement, the termination document and supporting documentation shall be open to the public.

C.  If an agreement is terminated by the State of Oklahoma and the accused is subsequently tried before a jury, the court shall instruct the jury not to consider any delay in prosecution while the accused was participating in the deferred prosecution program.

Added by Laws 1979, c. 226, § 3, eff. Oct. 1, 1979.  Amended by Laws 2000, c. 278, § 2, eff. July 1, 2000.

§22305.4.  Completion of program  Records.

If the accused completes the program agreed upon, the State of Oklahoma shall not file the charges against the accused.  The records of the accused shall be sealed and not be released or viewed except on a limited basis by law enforcement or prosecution personnel for the purposes of determining if the accused has been diverted.  The district attorney shall take all necessary measures to ensure that all of the records of the person remain confidential.

Laws 1979, c. 226, § 4.  

§22-305.5.  Information - Release or disclosure - Confidentiality - Admissibility as evidence - Violations - Penalties.

A.  Information received and collected by any service agency while the accused participates in a deferred prosecution program shall not be released to any agency or individual that will use the information for dissemination to the general public or be recorded in a computer system that has the potential for connection with national computer files, or be used by a law enforcement agency for the purposes of surveillance and investigation.  The provisions of this subsection shall apply only with respect to information received and collected by any service agency pursuant to deferred prosecution agreements entered into by the parties relating to crimes committed prior to the effective date of this act, unless such information is otherwise deemed confidential by law.

B.  Any information obtained in the course of investigating the suitability of the accused for inclusion in a deferred prosecution program shall remain confidential except for purposes of deferred prosecution programs and shall not be released by any individual or agency without permission from the accused, being advised by counsel.  The provisions of this subsection shall apply only to agreements entered into by the parties relating to crimes committed prior to July 1, 2000, unless such information is otherwise deemed confidential by law.

C.  If the deferred prosecution program is terminated before successful completion of the agreement, no information obtained as a result of the participation of the accused in the deferred prosecution program shall be admissible in any subsequent proceeding to the disadvantage of the accused, except if the information could have been routinely gathered in the police investigation of the crime of the accused.

D.  1.  On and after the effective date of this act, any person releasing any information required by this section to be kept confidential shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than One Thousand Dollars ($1,000.00) or be imprisoned for not more than six (6) months, or both.

2.  Prior to the effective date of this act, any person releasing any information required by this section to be kept confidential shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than One Thousand Dollars ($1,000.00) or be imprisoned for not more than six (6) months, or both.

E.  The provisions of this subsection apply only to records within the care and custody of the district attorney.

Added by Laws 1979, c. 226, § 5, eff. Oct. 1, 1979.  Amended by Laws 2000, c. 278, § 3, eff. July 1, 2000.

§22305.6.  District Attorneys Council  Duties.

The District Attorneys Council shall assist each district attorney in the development of the deferred prosecution program in their jurisdictions, and shall prepare and promulgate model forms for the use of the various district attorneys of this state.

Amended by Laws 1988, c. 109, § 24, eff. Nov. 1, 1988.  

§22311.  Grand jury defined.

A grand jury is a body of men consisting of twelve jurors impaneled and sworn to inquire into and true presentment make of all public offenses against the state committed or triable within the county for which the court is holden.

R.L.1910, § 5696.

§22311.1.  Petition for convening grand jury - Warning.

Every petition for the convening of a grand jury shall contain on the outer page thereof the word "Warning" and underneath this in tenpoint type the words, "It is a felony for anyone to sign a petition for the convening of a grand jury with any name other than his own, or knowingly to sign his name more than once for the convening of the grand jury, or to sign such petition when he is not a legal voter of the county."

Added by Laws 1989, c. 6, § 1, eff. Nov. 1, 1989.  Amended by Laws 1989, c. 180, § 10, eff. Nov. 1, 1989.

§22312.  Challenge of grand jury.

The state, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual grand juror.

R.L.1910, § 5697.  

§22313.  Grounds for challenge to panel.

A challenge to the panel may be interposed by either party for one or more of the following causes only:

1.  That the requisite number of ballots was not drawn from the jury box of the county or subdivision.

2.  That the drawing was not had in the presence of the officers designated by law, or in the manner prescribed by law.

R.L.1910, § 5698.  

§22314.  Jury discharged if challenge allowed.

If a challenge to the panel be allowed, the grand jury must be discharged.

R.L.1910, § 5699.  

§22315.  Grounds for challenge to juror.

A challenge to an individual grand juror may be interposed by either party, for one or more of the following causes only:

1.  That he is a minor.

2.  That he is not a qualified elector.

3.  That he is otherwise disqualified under any of the provisions of law, in relation to the qualification of grand jurors.  4.  That he is insane.

5.  That he is a prosecutor upon a charge against the defendant.

6.  That he is a witness on the part of the prosecution and has been served with process by an undertaking as such.

7.  That a state of mind exists on his part in reference to the case, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a grand juror, by reason of having formed and expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it satisfactorily appear to the court, upon his declaration, under oath, or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.

R.L.1910, § 5700.  

§22316.  Challenge may be oral or written  How tried.

Challenges may be oral or in writing, and must be tried by the court.

R.L.1910, § 5701.  

§22317.  Ruling on challenge.

The court must allow or disallow the challenge and the clerk must enter its decision upon the minutes if demanded.

R.L.1910, § 5702.  

§22318.  Effect of challenge allowed.

If a challenge to an individual grand juror is allowed, he cannot be present at, or take part in the consideration of the charge against the defendant who interposed the challenge, or the deliberations of the grand jury thereon.

R.L.1910, § 5703.  

§22319.  Violation, where challenge allowed.

The grand jury must inform the court of a violation of the last section and it is punishable by the court as a contempt.

R.L.1910, § 5704.  

§22320.  Challenge to be made before jury is sworn  Exception.

Neither the state, nor a person held to answer a charge for a public offense, can take advantage of any objection to the panel or to an individual grand juror unless it be by challenge, and before the grand jury is sworn, except that after the grand jury is sworn, and before the indictment is found, the court may, in its discretion, upon a good cause shown, receive and allow a challenge.

R.L.1910, § 5705.  

§22321.  New grand jury in certain cases.

If the grand jury is discharged by the allowance of a challenge to the whole panel; or if from any cause, in the opinion of the court, another grand jury may become necessary, the court may in its discretion order that another grand jury be summoned.

R.L.1910, § 5706.  

§22322.  Special grand jury.

A grand jury formed and impaneled as to and in a particular case after a challenge or challenges to individual grand jurors have been allowed, shall be sworn to act only in such particular case and as to all other cases at the same term of the court the grand jury shall be formed in the usual manner provided by law.

R.L.1910, § 5707.  

§22323.  Court to appoint foreman.

From the persons summoned to serve as grand jurors, and appearing, the court must appoint a foreman.  The court must also appoint a foreman when a person already appointed is discharged or excused before the grand jury are dismissed.

R.L.1910, § 5708.  

§22324.  Oath to foreman.

The following oath must be administered to the foreman of the grand jury:

You, as foreman of this grand jury, shall diligently inquire into, and true presentment make, of all public offenses against this state, committed or triable within this county (or subdivisions), of which you shall have or can obtain legal evidence.  You will keep your own counsel, and that of your fellows, and of the state, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said, nor the manner in which you or any other grand juror may have voted on any matter before you.  You shall present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor or affection, or for any reward, or the promise or hope thereof; but in all your presentments, or indictments, you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.  So help you God.

R.L.1910, § 5709.  

§22325.  Oath to other jurors.

The following oath must be immediately thereupon administered to the other grand jurors present:

The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part. So help you God.

R.L.1910, § 5710.  

§22326.  Charge to grand jury.

The grand jury, being impaneled and sworn, must be charged by the court.  In doing so the court must give them such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court, or likely to come before the grand jury.

R.L.1910, § 5711.  

§22327.  Jury to retire.

The grand jury must then retire to a private room and inquire into the offenses cognizable by them.

R.L.1910, § 5712.  

§22328.  Grand jury must appoint clerk.

The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, except of the votes of the individual members, and of the evidence given before them.

R.L.1910, § 5713.  

§22329.  Discharge of grand juror.

A member of the grand jury may for ill health of himself or immediate family, or other cause rendering him unable to serve, be discharged before the term is ended or the labor of the grand jury completed; or, if the judge becomes satisfied that any grand juror is willfully refusing to discharge his duty, the court may order his discharge.  In the event of the discharge or death of a grand juror, an alternate grand juror shall be appointed to fill the vacancy by the court.  The appointment shall be made in the same order in which the alternate grand jurors were selected.  If the number of grand jurors and alternates becomes so depleted as to prevent the grand jury from functioning, as many names as the court may order shall be drawn from the jury box in the same manner the original grand jurors and alternates were drawn, and from the names so drawn there shall be summoned as many grand jurors and alternates as can be found and are able to attend as necessary, and if found they shall be summoned in the order in which their names were drawn from the box.  If the number be not thus obtained there shall be another drawing in the same manner.  When a sufficient number so drawn appears to fill the panel, the grand jury shall in open court be reimpaneled, but subject to challenge and be charged and sworn in the same manner as when the grand jury was originally impaneled.

R.L.1910, § 5714; Laws 1977, c. 213, § 1, emerg. eff. June 14, 1977.  

§22330.  Discharge of grand jury.

On the completion of the business before the grand jury, or completion of the statutory time limit for sessions of a grand jury, or whenever the court shall be of the opinion that the public interests will not be subserved by further continuance of the session, the grand jury must be discharged, but whether the business be completed or not they are discharged by the final adjournment of the court, or by the judge of the district holding court in some other county of the state, not within the judicial district in which the grand jury is called.

R.L.1910, § 5715; Laws 1961, p. 236, § 1.  

§22331.  General powers and duties of grand jury.

The grand jury has power to inquire into all public offenses committed or triable in the county or subdivision, and to present them to the court, by indictment or accusation in writing.

R.L.1910, § 5716.  

§22332.  Foreman to swear witness.

The foreman may administer an oath to any witness appearing before the grand jury.

R.L.1910, § 5718.  

§22333.  Evidence before grand jury.

In the investigation of a charge for the purpose of presenting an indictment or accusation, the grand jury may receive the written testimony of the witnesses taken in a preliminary examination of the same charge, and also the sworn testimony prepared by the district attorney without bringing those witnesses before them, and may hear evidence given by witnesses produced and sworn before them, and may also receive legal documentary evidence.  Each indictment or accusation shall be voted on separately by the grand jury.

R.L.1910, § 5719; Laws 1961, p. 236, § 1.  

§22335.  Evidence for the accused  Procuring additional evidence.

The grand jurors, upon request of the accused, shall, and on their own motion may, hear the evidence for the accused.  It is their duty to weigh all the evidence submitted to them and when they have reason to believe that there is other evidence, they may order such evidence to be produced, and for that purpose the State's Attorney shall cause process to issue for the witnesses.

R.L.1910, § 5721; Laws 1961, p. 236, § 1.  

§22336.  Indictment to be found, when.

The grand jury ought to find an indictment when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.

§22337.  Members to give evidence.

If a member of the grand jury knows, or has reason to believe, that a public offense has been committed, which is triable in the county or subdivision, he must declare the same to his fellow jurors, who must thereupon investigate the same.

R.L.1910, § 5723.  

§22338.  Subjects for inquiry by grand jury.

The grand jury must inquire:

1.  Into the case of every person imprisoned in the jail of the county or subdivision, on a criminal charge, and not indicted.

2.  Into the condition and management of the public prisons in the county or subdivision; and,

3.  Into the willful and corrupt misconduct in office of public officers of every description in the county or subdivision.

R.L.1910, § 5724.  

§22339.  Access to prisons and records.

They are also entitled to free access at all reasonable times, to public prisons, and to the examination, without charge, of all public records in the county.

R.L. 1910, § 5725.  

§22-340.  Advice of court or district attorney - Reproduction or disclosure of transcript - Who may be present.

A.  The grand jury may at all reasonable times ask the advice of the court or of the district attorney.  In no event shall the grand jury be advised as to the sufficiency or insufficiency of the evidence necessary to return a true bill, in a matter under investigation before them.  The district attorney, with or without a regularly appointed assistant district attorney individually or collectively, or if the district attorney and all of his or her assistants are disqualified for any reason, a district attorney or assistant district attorney from another district, appointed by the Attorney General of Oklahoma pursuant to Sections 215.9 and 215.13 of Title 19 of the Oklahoma Statutes, and where proper, the Attorney General, or an assistant attorney general, may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them and may interrogate witnesses before them whenever he or she thinks it necessary.  A qualified court reporter shall be present and take the testimony of all witnesses.

B.  Upon request a transcript of the testimony or any portion thereof shall be made available to an accused or the district attorney, at the expense of the requesting party or officer, and, in the event of an indigent accused, at the expense of the state.  Any person who obtains a copy of a transcript shall not reproduce the transcript in whole or in part or otherwise disclose its contents to any person other than his or her attorney without leave of the court.  Violation of this provision shall be punishable as contempt.  Provided, nothing in this section shall prohibit the attorney for the accused, the district attorney or assistant district attorney from reproducing in whole or in part the transcribed testimony of a witness he or she anticipates calling to testify at trial and providing same to said witness for the sole purpose of preparing for trial.

C.  No other person is permitted to be present during sessions of the grand jury except the members of the grand jury, the witness actually under examination, and one attorney representing such witness, except that an interpreter, when necessary, may be present during the interrogation of a witness; provided that, no person, except the members of the grand jury, shall be permitted to be present during the expression of juror opinions or the giving of votes upon any matter before the grand jury; provided further that neither the district attorney, nor an assistant district attorney, may be present or participate in an official capacity, as herein provided, during an investigation by the grand jury of the district attorney's office, or of any person officially associated with said office.  

R.L. 1910, § 726; Laws 1961, p. 236, § 1; Laws 1965, c. 532, § 1; Laws 1967, c. 226, § 1, emerg. eff. May 2, 1967; Laws 1974, c. 60, § 1; Laws 1989, c. 179, § 3, eff. Nov. 1, 1989; Laws 1999, c. 147, § 1, emerg. eff. May 3, 1999.

§22341.  Proceedings kept secret.

Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said or in what manner he or any other grand juror may have voted on a matter before them.

R.L.1910, § 5727.  

§22342.  Juror may disclose proceedings, when.

A member of the grand jury may, however, be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony or upon his trial therefor.

R.L.1910, § 5729.  

§22343.  Privilege of grand juror.

A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury, relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow jurors.

R.L.1910, § 5729.  

§22344.  Interpreter  Appointment  Compensation.

That upon the request of either the district attorney, or the grand jurors, the district judge who has called a grand jury shall appoint, whenever necessary, an interpreter, and shall swear him to secrecy, not to disclose any testimony or the name of any witness which shall be presented to the grand jury except when testifying in a court of record.

The compensation for any interpreter thus appointed shall be fixed and allowed by the judge appointing him, and such fees, when earned, may be allowed and paid from time to time as they accrue, and shall be paid from the funds from which the grand jurors are paid.

Laws 1941, p. 88, § 1.  

§22345.  Restrictions on sessions before and after elections.

No grand jury shall be convened or remain in session during a period beginning thirty (30) days before any Primary, Runoff Primary, or General Election, for state or county offices, and ending ten (10) days after such Primary, Runoff Primary, or General Election.  Any grand jury in session at the commencement of any such period shall be discharged forthwith.  The provisions of this section shall not apply to a multicounty grand jury convened pursuant to the Multicounty Grand Jury Act, Section 350 et seq. of this title.

Amended by Laws 1990, c. 232, § 2, emerg. eff. May 18, 1990.

§22346.  Reports of investigations of public offices or institutions.

In addition to any indictments or accusations that may be returned, the grand jury, in their discretion, may make formal written reports as to the condition and operation of any public office or public institution investigated by them.  No such report shall charge any public officer, or other person with willful misconduct or malfeasance, nor reflect on the management of any public office as being willful and corrupt misconduct.  It being the intent of this section to preserve to every person the right to meet his accusers in a court of competent jurisdiction and be heard, in open court, in his defense.

Laws 1961, P. 237, Sec. 1.

§22350.  Multicounty Grand Jury Act  Conflicting provisions.

This act shall be known and may be cited as the "Multicounty Grand Jury Act".  All matters not specifically governed by the provisions of the Multicounty Grand Jury Act shall be subject to the provisions governing grand juries.  If the provisions of the Multicounty Grand Jury Act conflict with the provisions governing grand juries, the provisions of the Multicounty Grand Jury Act shall govern.

Added by Laws 1987, c. 99, § 1, eff. Nov. 1, 1987.  

§22-351.  Verified application - Order - Authority of district attorney.

A.  1.  Whenever the Attorney General considers it to be in the public interest to convene a grand jury with jurisdiction extending beyond the boundaries of a single county, he or she shall file a verified application with the Chief Justice of the Supreme Court, or with such Justice of the Supreme Court as is designated by rule to receive such application.

2.  The application shall:

a. state that in the judgment of the Attorney General, the convening of a multicounty grand jury is necessary because of organized crime or public corruption, or both, involving more than one county of the state and that, in the judgment of the Attorney General, the investigation cannot be adequately performed by a county grand jury, and

b. specify those counties for which the multicounty grand jury is to be convened.

3.  The Supreme Court, within fifteen (15) days, shall determine whether or not to issue an order convening the multicounty grand jury.  If an order is issued convening said jury, the purpose or purposes shall be set forth in such order.

B.  An order granting the convening of a multicounty grand jury issued under subsection A of this section shall:

1.  Convene a multicounty grand jury having jurisdiction over any subject matter listed in Section 353 of this title which occurs in any single county or in multiple counties of this state approved by the Supreme Court and requested in the application by the Attorney General;

2.  Designate a district court judge to be the presiding judge over such multicounty grand jury and provide that such judge shall, with respect to investigations, indictments, reports, and all other proper activities of said multicounty grand jury, have jurisdiction over all counties in the jurisdiction of said multicounty grand jury; and

3.  Provide for such other incidental arrangements as may be necessary, including a determination of the share of costs attributable to the state.

C.  The impaneling of a multicounty grand jury shall not be construed to diminish the responsibility or the authority of any district attorneys within their respective jurisdictions to investigate and prosecute organized crime or public corruption, or any other crime.

Added by Laws 1987, c. 99, § 2, eff. Nov. 1, 1987.  Amended by Laws 2003, c. 388, § 1, eff. Nov. 1, 2003.

§22352.  Regular term  Extension.

A.  The regular term of a multicounty grand jury shall be eighteen (18) months unless an order for discharge is entered earlier:

1.  by the court after the multicounty grand jury determines by majority vote that its business is completed; or

2.  by the court, on its own motion or on the motion of the Attorney General, upon a determination that termination is in the public interest.

B.  The regular term of a multicounty grand jury may be extended by the presiding judge for a specified time period upon a verified petition by the Attorney General stating that an extension is necessary to conclude a grand jury inquiry begun prior to the expiration of the regular term.  No jury so extended shall serve for more than twentyfour (24) months, unless permission is granted by the Supreme Court.

Added by Laws 1987, c. 99, § 3, eff. Nov. 1, 1987.  

§22-353.  Jurisdiction.

A.  The jurisdiction of a multicounty grand jury impaneled under the Multicounty Grand Jury Act shall extend throughout the state, including but not limited to, a single county as designated in the State Supreme Court's order convening the multicounty grand jury.

B.  The subject matter jurisdiction of the multicounty grand jury shall be limited to:

1.  Murder;

2.  Rape;

3.  Bribery;

4.  Extortion;

5.  Arson;

6.  Perjury;

7.  Fraud;

8.  Embezzlement;

9.  Manufacturing, distribution, dispensing, possession or possession with intent to manufacture, distribute or dispense, a controlled dangerous substance, or any other violation of Section 2-101 et seq. of Title 63 of the Oklahoma Statutes;

10.  Organized crime, which for purposes of the Multicounty Grand Jury Act, means any unlawful activity of an association trafficking in illegal goods or services, including but not limited to, gambling; loan sharking; controlled dangerous substances; labor racketeering, or other unlawful activities; or any continuing criminal conspiracy or other unlawful practice which has as its objectives improper governmental influence or economic gain through fraudulent or coercive practices;

11.  Public corruption, which for purposes of the Multicounty Grand Jury Act, means any unlawful activity under color of or in connection with any public office or employment of any law enforcement officer, public official, public employee, candidate for public office, or any agent thereof;

12.  The registration or failure to register securities;

13.  The offer or sale of securities;

14.  The sale or purchase of goods or services by or for the state or any political subdivision thereof, or the misappropriation of funds belonging to or entrusted to the state or any political subdivision thereof; and

15.  All character and grades of crime pursuant to Section 18 of Article II of the Oklahoma Constitution.

Added by Laws 1987, c. 99, § 4, eff. Nov. 1, 1987.  Amended by Laws 1990, c. 232, § 3, eff. May 18, 1990; Laws 2003, c. 388, § 2, eff. Nov. 1, 2003.

§22354.  Powers  Document copies or reproductions.

A.  The multicounty grand jury shall have the power to:

1.  compel the attendance of witnesses;

2.  compel the testimony of witnesses under oath;

3.  take testimony of witnesses who have been granted immunity; 4.  require the production of documents, records and other evidence;

5.  obtain the initiation of civil and criminal contempt proceedings; and

6.  exercise any investigative power of any grand jury of the state.

B.  Any document produced before a multicounty grand jury may be copied or reproduced.  Each statement, question, comment, or response of the presiding judge, the Attorney General or his designee, any witness, any grand juror or any other person which is made in the presence of the multicounty grand jury, except its deliberations and the vote of any juror, shall be stenographically recorded or transcribed, or both.

Added by Laws 1987, c. 99, § 5, eff. Nov. 1, 1987.  

§22355.  Disclosures  Witness right to assistance of counsel.

A.  Disclosure of matters occurring before the multicounty grand jury other than its deliberations and the vote of any juror may be used by the Attorney General in the performance of his duties.  The Attorney General may disclose so much of the multicounty grand jury's proceedings to law enforcement agencies as he considers essential to the public interest and effective law enforcement.  Otherwise, a grand juror, attorney, interpreter, stenographer, operator of any recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the multicounty grand jury only when so directed by the court.  All such persons shall be sworn to secrecy and shall be in contempt of court if they reveal any information which they are sworn to keep secret.

B.  1.  A witness subpoenaed to appear and testify before a multicounty grand jury or to produce documents, records, or other evidence shall be entitled to the assistance of counsel, including assistance during such time as the witness is questioned in the presence of the multicounty grand jury.

2.  If counsel desired by the witness is not available, the witness shall obtain other counsel within a reasonable time in order that the multicounty grand jury may proceed with its investigation.

3.  Such counsel may be retained by the witness or shall be appointed in the case of any person unable to procure sufficient funds to obtain legal representation.

4.  Such counsel shall be allowed to be present in the grand jury room during the questioning of the witness and shall be allowed to advise the witness but shall make no objections or arguments or otherwise address the multicounty grand jury or its legal advisor. The presiding judge shall have the same power to remove such counsel from the grand jury room as a judge has with respect to an attorney in any court proceeding.  Violation of this subsection shall be punishable as contempt.

C.  No witness shall be prohibited from disclosing his testimony before the multicounty grand jury except for cause shown in a hearing before the presiding judge.  In no event may a witness be prevented from disclosing his testimony to his attorney.

Added by Laws 1987, c. 99, § 6, eff. Nov. 1, 1987.  

§22356.  Jurisdictional limits  Investigations.

Nothing in the Multicounty Grand Jury Act shall be construed to limit the jurisdiction of the county grand juries or district attorneys nor shall an investigation by a multicounty grand jury be preemptive of a previously instituted investigation by another grand jury or agency having jurisdiction under the same subject matter unless good cause is shown.

Added by Laws 1987, c. 99, § 7, eff. Nov. 1, 1987.  

§22357.  Presentation of evidence  Power to prosecute.

The presentation of evidence to a multicounty grand jury shall be made by the Attorney General or his designee.  When an indictment or accusation for removal is returned, the Attorney General, his designee, or the designated district attorney in whose district the case is filed, shall be empowered to prosecute such indictment or accusation for removal in the district court where venue is proper.

Added by Laws 1987, c. 99, § 8, eff. Nov. 1, 1987.  

§22358.  Venue  Consolidation of indictment.

A.  Any indictment or accusation for removal by a multicounty grand jury shall be returned to the presiding judge without designation of venue.  Thereupon, the judge, by order, shall designate the county of venue for the purpose of trial.  The judge, by order, may direct the consolidation of an indictment returned by a county grand jury with an indictment returned by a multicounty grand jury and fix venue for trial.

B.  If a multicounty grand jury, pursuant to its investigation, learns of an offense for which it lacks jurisdiction to indict, the multicounty grand jury shall direct the Attorney General to inform the appropriate prosecutorial authority.

Added by Laws 1987, c. 99, § 9, eff. Nov. 1, 1987.  

§22-359.  Prospective juror list - Numbers and qualifications.

A.  The Administrative Director of the Courts, upon receipt of the State Supreme Court order convening a multicounty grand jury, shall prepare a list of up to two hundred prospective jurors drawn from the current grand jury lists of the several counties designated in the order.

B.  A multicounty grand jury shall be comprised of the same number of members having the same qualifications as provided by law for a county grand jury; provided, however, not more than one-half (1/2) of the members of a multicounty grand jury shall be residents of any one county.

Added by Laws 1987, c. 99, § 10, eff. Nov. 1, 1987.  Amended by Laws 2004, c. 239, § 1, eff. July 1, 2004.

§22360.  Summons for service.

The court clerk of the county in which a prospective member of a multicounty grand jury resides, upon receipt from the Administrative Director of the Courts of a list of prospective multicounty grand jurors residing in the county, shall cause such prospective jurors to be summoned for service.

Added by Laws 1987, c. 99, § 11, eff. Nov. 1, 1987.  

§22361.  Foreman.

From the persons selected to serve as multicounty grand jurors, the court shall appoint a foreman.  The court shall also appoint a foreman when a person already appointed is discharged or excused before the multicounty grand jury is dismissed.

Added by Laws 1987, c. 99, § 12, eff. Nov. 1, 1987.  

§22362.  Costs and expenses.

The costs and expenses incurred by any multicounty grand jury in the performance of its functions and duties shall be paid by the state out of funds appropriated to the Office of the Attorney General.

Added by Laws 1987, c. 99, § 13, eff. Nov. 1, 1987.  

§22363.  Compensation and reimbursement.

Multicounty grand jurors shall be compensated as provided in Section 86 of Title 28 of the Oklahoma Statutes, and shall be reimbursed for necessary expenses on a per diem basis in the same manner and at the same rate as is prescribed by law for state employees.

Added by Laws 1987, c. 99, § 14, eff. Nov. 1, 1987.  

§22381.  Indictment may be found by nine  Endorsement.

An indictment cannot be found without the concurrence of at least nine grand jurors.  When so found it must be endorsed "A True Bill", and the endorsement must be signed by the foreman.

R.L.1910, § 5730.  

§22382.  Charge dismissed, when.

If nine grand jurors do not concur in finding an indictment against a defendant who has been held to answer the original information or the certified record of the proceedings before the magistrate transmitted to them, must be returned to the court, with an endorsement thereon, signed by the foreman, to the effect that the charge is dismissed.

R.L.1910, § 5731.  

§22383.  Resubmission of charge.

The dismissal of the charge does not, however, prevent its being again submitted to a grand jury as often as the court may so direct. But without such direction it cannot be again submitted.

R.L.1910, § 5732.  

§22384.  Names of witnesses endorsed on indictment.

When an indictment is found, the names of the witnesses examined before the grand jury must be endorsed thereon before the same is presented to the court, but a failure to so endorse the said names shall not be sufficient reason for setting aside the indictment if the district attorney or prosecuting officer will within a reasonable time, to be fixed by the court, endorse the names of the witnesses for the prosecution on the indictment. Provided that the names of witnesses examined before the grand jury on matters not concerning the indictment in question shall not be endorsed on the indictment relative to such case.  The court or judge may, at any time, direct the names of additional witnesses for the prosecution to be endorsed on the indictment, and shall order that such names be furnished to the defendant or his counsel.

R.L.1910, § 5733; Laws 1967, c. 268, § 1, emerg. eff. May 8, 1967.  

§22385.  Presentment and filing of indictment  Prohibition against disclosure.

An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk, and remain in his office as a public record, and except as provided by law, it may not be inspected or its contents revealed, until the defendant has been arrested.

R.L.1910, § 5734; Laws 1961, p. 237, § 1.  

§22386.  Proceedings where defendant at large.

When an indictment is found against a defendant who has not been previously arrested, and is not under bail, the same proceedings must be had as are prescribed against a defendant who fails to appear for arraignment.

R.L.1910, § 5735.  

§22387.  Forms and rules of pleading.

All forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined are those prescribed by this code.

R.L.1910, § 5736.  

§22388.  Indictment or information is first pleading.

The first pleading on the part of the state is the indictment or information.

R.L.1910, § 5737.  

§22401.  Requisites of indictment or information.

The indictment or information must contain:

1.  The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.

2.  A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of

§22402.  Indictment or information must be certain and direct.

The indictment or information must be direct and certain as it regards:

1.  The party charged.

2.  The offense charged.

3.  The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.

R.L.1910, § 5739.  

§22403.  Designation of defendant by fictitious name.

When a defendant is indicted or prosecuted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the indictment or information.

R.L.1910, § 5740.  

§22404.  Single offense to be charged  Different counts.

The indictment or information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.

R.L.1910, § 5741.  

§22405.  Allegation of time.

The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.

R.L.1910, § 5742.  

§22406.  Misdescription of person injured or intended to be injured.

When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.

R.L.1910, § 5743. d

§22407.  Words, how construed.

The words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.

R.L.1910, § 5744.  

§22408.  Statute not strictly pursued.

Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other words conveying the same meaning may be used.

R.L.1910, § 5745.  

§22409.  Indictment or information, when sufficient.

The indictment or information is sufficient if it can be understood therefrom:

1.  That it is entitled in a court having authority to receive it, though the name of the court be not stated.

2.  That it was found by a grand jury or presented by the district attorney of the county in which the court was held.

3.  That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown.

4.  That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.

5.  That the offense was committed at some time prior to the time of filing the indictment or information.

6.  That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

7.  That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.

R.L.1910, § 5746.  

§22411.  Matters which need not be stated.

Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.

R.L.1910, § 5748.  

§22412.  Pleading a judgment.

In pleading a judgment or other determination of, or proceeding before a court or officer of special jurisdiction it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made.  The facts constituting jurisdiction, however, must be established on the trial.

R.L.1910, § 5749.  

§22413.  Pleading private statute.

In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof.

R.L. 1910, Sec. 5750.

§22421.  Arson  Omission or error in designating owner or occupant.

An omission to designate, or error in designating in indictment for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if it appears that upon the whole description given of the building, it is sufficiently identified to enable the prisoner to prepare his defense.

R.L.1910, § 2604.  

§22422.  Libel, indictment or information for.

An indictment or information for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled of the defamatory matter on which the indictment or information is founded, but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be established on the trial.

R.L.1910, § 5751.  

§22423.  Forgery, misdescription of forged instrument immaterial, when.

When an instrument, which is the subject of an indictment or information for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information and established on the trial, the misdescription of the instrument is immaterial.

R.L.1910, § 5752.  

§22424.  Perjury, indictment or information for.

In an indictment or information for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken; and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.

R.L.1910, § 5753.  

§22425.  Larceny or embezzlement, indictment or information for.

In an indictment or information for the larceny or embezzlement of money, bank notes, certificates of stock or valuable securities, or for a conspiracy to cheat and defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock or valuable securities, without specifying the coin, number, denomination or kind thereof.

R.L.1910, § 5754.  

§22426.  Obscene literature, indictment or information for handling.

An indictment or information for exhibiting, publishing, passing, selling or offering to sell, or having in possession with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper or writing, but it is sufficient to state generally the fact of the lewdness or obscenity thereof.

R.L.1910, § 5755. d

§22431.  Several defendants.

Upon an indictment or information against several defendants, any one or more may be convicted or acquitted.

R.L.1910, § 5756.  

§22432.  Accessories and principals in felony.

The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.

R.L. 1910, Sec. 5757.

§22433.  Accessory tried independently of principal.

An accessory to the commission of a felony may be prosecuted, tried and punished, though the principal felon be neither prosecuted nor tried, and though the principal may have been acquitted.

R.L.1910, § 5758.  

§22434.  Compounding a crime  Separate prosecution.

A person may be prosecuted for having, with the knowledge of the commission of a public offense, taken money or property of another, or a gratutiy or reward, or an engagement or promise therefor, upon the agreement or understanding, express or implied, to compound or conceal the offense, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original offense have not been indicted or tried.

R.L.1910, § 5759.  

§22436.  Charging of two or more defendants in same indictment or information  Counts.

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.  Such defendants may be charged in one or more counts together or separately, provided that all of the defendants charged together in the same indictment or information are alleged to have participated in all of the same acts or transactions charged.

Laws 1968, c. 311, § 1.  

§22437.  Singular to include the plural.

All laws in this chapter wherein the singular of words is used are hereby amended to include the plural of such words to give effect to the purpose of this act.

Laws 1968, c. 311, § 2.  

§22438.  Trial of two or more indictments or informations.

The court may order two or more indictments or informations or both to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or information.  The procedure shall be the same as if the prosecution was under such single indictment or information.

Laws 1968, c. 311, § 3.  

§22439.  Relief from prejudicial joinder.

If it appears that a defendant or the state is prejudiced by joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide whatever other relief justice requires.

Laws 1968, c. 311, § 4.  

§22440.  Repeal of conflicting laws.

All laws or parts of laws in conflict herewith are hereby repealed.

Laws 1968, c. 311, § 5.  

§22441.  Indictments  When and where transferred.

The grand jury of each county in the state is hereby empowered and authorized to investigate all felonies and misdemeanors committed in their respective jurisdictions; and upon the filing of an indictment in the district court, which charges an offense over which such court has no jurisdiction, the judge of such court shall as soon as convenient, make an order transferring the same to such inferior court as may have jurisdiction to try the offense therein charged, stating in such order the cause transferred, and to what court transferred.

R.L.1910, § 5551.  

§22442.  Records to be certified to proper court  Costs.

It shall be the duty of the clerk of the district court, without delay, to deliver the indictment in all cases transferred, together with all the papers relating to each case, to the proper court or justice of the peace, as directed in the order of transfer; and he shall accompany each case with a certified copy of all the proceedings taken therein in the district court, and also with a bill of the costs that have accrued therein in the district court, and the said costs shall be collected in the court in which said cause is tried, in the same manner as other costs are collected in criminal cases.

R.L.1910, § 5552.  

§22443.  Entry on docket  Process and trial.

All cases transferred from the district court shall be entered on the docket of the court to which they are transferred, and all process thereon shall be issued, and the defendant tried in the same manner as if the cause had originated in the court to which they have been transferred.

R.L.1910, § 5553.  

§22444.  Retransfer in case of error.

When a cause has been improperly transferred to a court which has no jurisdiction of the same, the court to which it has been transferred shall order it to be retransferred to the proper court, and the same proceedings shall be had as in the case of original transfer.  In such case the defendant and the witnesses shall be held bound to appear before the court to which the case has been retransferred, the same as they were bound to appear before the court so transferring the same.

R.L.1910, § 5554.  

§22445.  Transfer to county of proper venue.

In all criminal cases pending in any county where the venue properly lies in another county, the court may, upon motion of the county attorney, or upon its own motion, transfer such cause to the county of proper venue; such transfer, in all respects, shall be made in the manner provided by law.

R.L.1910, § 5555.  

§22451.  Arraignment.

When the indictment or information is filed, the defendant must be arraigned thereon before the court in which it is filed, if triable therein; if not, before the court to which it is removed or transmitted.

R.L.1910, § 5760.  

§22452.  Defendant must appear personally, when.

If the indictment or information is for a felony the defendant must be personally present, but if for a misdemeanor only, his personal appearance is unnecessary, and he may appear upon the arraignment by counsel.

R.L.1910, § 5761.  

§22453.  Officer to bring defendant before court.

When his personal appearance is necessary, if he be in custody, the court may direct the officer in whose custody he is to bring him R.L.1910, § 5762.  

§22454.  Bench warrant to issue, when.

If the defendant has been discharged on bail, or have deposited money instead thereof, and does not appear to be arraigned, when his personal attendance is necessary, the court in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.

R.L.1910, § 5763.  

§22455.  Bench warrant may issue into one or more counties.

The clerk, on the application of the district attorney, may, accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant in one or more counties.

R.L.1910, § 5764.  

§22456.  Bench warrant, form of, in case of felony.

The bench warrant must, if the offense is a felony, be substantially in the following form:

County of..........

State of Oklahoma,

To any sheriff, constable, policeman or marshal in this state:

An indictment having been found (or information filed) on the ......... day of ......... , A. D., 19... , in the district court in and for the county of ....... , charging C. D. with the crime of ........ , (designating it generally) you are therefore commanded forthwith to arrest the above named C. D., and bring him before the court (or before the court to which the indictment or information may have been removed, naming it) to answer said indictment or information; or if the court have adjourned for the term, that you deliver him into the custody of the sheriff of the county of ............

Given under my hand, with the seal of said court affixed this .....  day of ......  A. D., 19.....

By order of the court.

(Seal)   E. F., Clerk.

R.L.1910, § 5765.  

§22-456A.  Bench warrant, fee for issuance of.

For the issuance of each bench warrant for a defendant's failure to pay court costs, fines, fees, or assessments in felony, misdemeanor, or traffic cases, the court clerk shall charge and collect a fee of Five Dollars ($5.00).  The fee shall be included in the execution bond amount on the face of the bench warrant which is issued for the defendant's failure to pay and shall be in addition to the delinquent amount owed by the defendant.  This fee shall be deposited in the court clerk's revolving fund pursuant to the provisions of Section 220 of Title 19 of the Oklahoma Statutes.

Added by Laws 1995, c. 132, § 1, eff. Nov. 1, 1995.

§22457.  Bench warrant in case of misdemeanor or bailable felony.

If the offense is a misdemeanor or a bailable felony, the bench warrant must be in a similar form, adding to the body thereof a direction to the following effect:

Or if he requires it that you take him before any magistrate in that county or in county in which you arrest him, that he may give bail to answer the indictment or information.

R.L.1910, § 5766.  

§22458.  Court to fix amount of bail  Endorsement.

If the offense charged is bailable the court, upon directing the bench warrant to issue, must fix the amount of bail and an endorsement must be made on the bench warrant and signed by the clerk, to the following effect:

The defendant is to be admitted to bail in the sum of ......... Dollars.

R.L.1910, § 5767.  

§22-459.  Defendant held when offense not bailable.

The defendant, when arrested under a warrant for an offense not bailable, shall be held in custody by the sheriff of the county in which the indictment or information is filed.  If the sheriff has contracted for the custody of prisoners in the county, such contractor shall be required to hold in custody any prisoner delivered to the contractor pursuant to this section.

R.L.1910, § 5768.  Amended by Laws 2003, c. 199, § 4, eff. Nov. 1, 2003.

§22460.  Bench warrant served in any county.

The bench warrant may be served in any county in the same manner as a warrant of arrest, except that when served in another county it need not be endorsed by a magistrate of that county.

R.L.1910, § 5769.  

§22461.  Taking bail in another county.

If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto, in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings may be had thereon.

R.L.1910, § 5770.  

§22462.  Defendant committed or bail increased after indictment or information.

When the indictment or information is for a felony, and the defendant, before the finding thereof, has given bail for his appearance to answer the charge, the court to which the indictment or information is presented, or sent or removed for trial, may order the defendant to be committed to actual custody, either without bail, or unless he give bail in an increased amount, to be specified in the order.

R.L.1910, § 5771. R.L.1910, § 5771.  

§22463.  Commitment order, execution of.

If the defendant is present when the order is made he must be forthwith committed accordingly.  If he is not present, a bench warrant must be issued and proceeded upon in the manner provided in this chapter.

R.L.1910, § 5772.  

§22-464.  Repealed by Laws 1991, c. 238, § 37, eff. July 1, 1991.

§22465.  Arraignment made, how.

The arraignment must be made by the court, or by the clerk or district attorney, under its direction, and consists in reading the indictment or information to the defendant, and asking him whether he pleads guilty or not guilty thereto.

R.L.1910, § 5774.  

§22466.  Name of defendant.

When the defendant is arraigned he must be informed that if the name by which he is prosecuted be not his true name, he must then declare his true name or be proceeded against by the name in the indictment or information.

R.L.1910, § 5775.  

§22467.  Proceedings when defendant gives no other name.

If he gives no other name, the court may proceed accordingly.

R.L.1910, § 5776.  

§22468.  Proceedings where another name given.

If he alleges that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the indictment or information may be had against him by that name, referring also to the name by which he is indicted or informed against.

R.L.1910, § 5777.  

§22469.  Necessity for filing information after preliminary examination.

It shall not be necessary to file an information after the preliminary examination where the complaint or preliminary information satisfies the requirements for an information.

Laws 1968, c. 175, § 3, eff. Jan. 13, 1969.  

§22470.  Time for arraignment upon charge of felony.

The arraignment of the defendant shall be held within thirty (30) days after the defendant is ordered held for trial upon a preliminary information charging the commission of a felony; provided, for good cause, the court may set a later date.

Laws 1968, c. 175, § 4, eff. Jan. 13, 1969.  

§22-471.  Short title.

Sections 1 through 12 of this act shall be known and may be cited as the "Oklahoma Drug Court Act".

Added by Laws 1997, c. 359, § 1, eff. July 1, 1997.

§22-471.1.  Authorization of drug court program.

A.  For purposes of this act, "drug court", "drug court program" or "program" means an immediate and highly structured judicial intervention process for substance abuse treatment of eligible offenders which expedites the criminal case, and requires successful completion of the plea agreement in lieu of incarceration.

B.  Each district court of this state is authorized to establish a drug court program pursuant to the provisions of this act, subject to availability of funds.  Juvenile drug courts may be established based upon the provisions of this act; provided, however, juveniles shall not be held, processed, or treated in any manner which violates any provision of Title 10 of the Oklahoma Statutes.

C.  Drug court programs shall not apply to any violent criminal offense.  Eligible offenses may further be restricted by the rules of the specific drug court program.  Nothing in this act shall be construed to require a drug court to consider every offender with a treatable condition or addiction, regardless of the fact that the controlling offense is eligible for consideration in the program.  Traditional prosecution shall be required where an offender is determined not appropriate for the drug court program.

D.  Drug court programs shall require a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems.  Whenever possible, a drug court team shall be designated consisting of a judge to administer the program, a district attorney, a defense attorney, and other persons designated by the drug court team who shall have appropriate understanding of the goals of the program and of the appropriate treatment methods for the various conditions.  The assignment of any person to the drug court team shall not preclude the assigned person from performing other duties required in the course of their office or employment.  The chief judge of the judicial district, or if the district has more than one chief judge than the presiding judge of the Administrative Judicial District, shall designate one or more judges to administer the drug court program.  The assignment of any judge to a drug court program or the designation of a drug court docket shall not mandate the assignment of all substance abuse related cases to the drug court docket or the program; however, nothing in this act shall be construed to preclude the assignment of all criminal cases relating to substance abuse or drug possession as provided by the rules established for the specific drug court program.

E.  When a drug court program is established, the arresting officer shall file the criminal case record for potentially eligible offenders with the district attorney within four (4) days of the arrest.  The district attorney shall file an information in the case within twenty-four (24) hours of receipt of the criminal case record when the offender appears eligible for consideration for the program.  The information may be amended as necessary when an offender is denied admittance into the drug court program or for other purposes as provided in Section 304 of Title 22 of the Oklahoma Statutes.  Any person arrested upon a warrant for his or her arrest shall not be eligible for the drug court program without the approval of the district attorney.  Any criminal case which has been filed and processed in the traditional manner shall be cross-referenced to a drug court case file by the court clerk, if the case is subsequently assigned to the drug court program.  The originating criminal case file shall remain open to public inspection.  The judge shall determine what information or pleadings are to be retained in the drug court case file, which shall be closed to public inspection.

F.  The court may request assistance from the Department of Mental Health and Substance Abuse Services which shall be the primary agency to assist in developing and implementing a drug court program or from any state or local agency in obtaining the necessary treatment services which will assure maximum opportunity for successful treatment, education, and rehabilitation for offenders admitted to the program.  All participating state and local agencies are directed to coordinate with each other and cooperate in assisting the district court in establishing a drug court program.

G.  Each drug court program shall ensure, but not be limited to:

1.  Strong linkage between participating agencies;

2.  Access by all participating parties of a case to information on the offender's progress;

3.  Vigilant supervision and monitoring procedures;

4.  Random substance abuse testing;

5.  Provisions for noncompliance, modification of the treatment plan, and revocation proceedings;

6.  Availability of residential treatment facilities and outpatient services;

7.  Payment of court costs, treatment costs, supervision fees, and program user fees by the offender;

8.  Methods for measuring application of disciplinary sanctions, including provisions for:

a. increased supervision,

b. urinalysis testing,

c. intensive treatment,

d. short-term confinement not to exceed five (5) days,

e. recycling the offender into the program after a disciplinary action for a minimum violation of the treatment plan,

f. reinstating the offender into the program after a disciplinary action for a major violation of the treatment plan, and

g. revocation from the program; and

9.  Methods for measuring performance-based effectiveness of each individual treatment provider's services.

H.  All drug court programs shall be required to keep reliable data on recidivism, relapse, restarts, sanctions imposed, and incentives given.

Added by Laws 1997, c. 359, § 2, eff. July 1, 1997.

§22-471.2.  Eligibility and request for drug court program.

A.  The initial opportunity for review of an offender for a drug court program shall occur within four (4) days after the arrest and detention or incarceration of the offender in the city or county jail, or if an immediate bond release program is available through the jail, the initial opportunity for review shall occur in conjunction with the bond release program.  When a drug court is established, the following information shall be initially reviewed by the sheriff or designee, if the offender is held in a county jail, or by the chief of police or designee, if the offender is held in a city jail:

1.  The offender's arrest or charge does not involve a crime of violence against any person, unless there is a specific treatment program in the jurisdiction designed to address domestic violence and the offense is related to domestic violence and substance abuse;

2.  The offender has no prior felony conviction in this state or another state for a violent offense, except as may be allowed in a domestic violence treatment program authorized by the drug court program.  It shall be sufficient for this paragraph that a criminal history records name search was conducted and indicated no apparent violent offense;

3.  The offender's arrest or charge does not involve a violation of the Trafficking In Illegal Drugs Act, Section 2-414 et seq. of Title 63 of the Oklahoma Statutes;

4.  The offender has committed a felony offense; and

5.  The offender:

a. admits to having a substance abuse addiction,

b. appears to have a substance abuse addiction,

c. is known to have a substance abuse addiction, or

d. the arrest or charge is based upon an offense eligible for the drug court program.

B.  If it appears to the reviewing officer that the offender may be potentially eligible for the drug court program based upon a review of the information in subsection A of this section, the offender shall be given an eligibility form which may be voluntarily completed by the offender, and the reviewing officer shall file the criminal case record within the time prescribed in subsection E of Section 2 of this act.  The offender shall not automatically be considered for the program based upon this review.  The offender must request consideration for the drug court program as provided in subsection C of this section and shall have approval from the district attorney before being considered for the drug court program.  The eligibility form shall describe the drug court program for which the offender may be eligible, including, but not limited to:

1.  A full description of the drug court process and investigation;

2.  A general explanation of the roles and authority of the supervising staff, the district attorney, the defense attorney, the treatment provider, the offender, and the judge in the drug court program;

3.  A clear statement that the drug court judge may decide after a hearing not to consider the offender for the drug court program and in that event the offender will be prosecuted in the traditional manner;

4.  A clear statement that the offender is required, before consideration in the program, to enter a guilty plea as part of a written plea agreement;

5.  A clear statement that the plea agreement will specify the offense to which the guilty plea will be entered and will state any penalty to be imposed for the offense, both in the event of a successful completion of the drug court program, and in the event of a failure to complete the program;

6.  A clear statement that the offender must voluntarily agree to:

a. waive the right to a speedy trial,

b. waive the right to a preliminary hearing,

c. the terms and conditions of a treatment plan, and

d. sign a performance contract with the court;

7.  A clear statement that the offender, if accepted into the drug court program, may not be incarcerated for the offense in a state correctional institution or jail upon successful completion of the program;

8.  A clear statement that during participation in the drug court program should the offender:

a. fail to comply with the terms of the agreements,

b. be convicted of a misdemeanor offense which reflects a propensity for violence,

c. be arrested for a violent felony offense, or

d. be convicted of any felony offense,

the offender may be required, after a court hearing, to be revoked from the program and sentenced without trial pursuant to the punishment provisions of the negotiated plea agreement; and

9.  An explanation of the criminal record retention and disposition resulting from participation in the drug court program following successful completion of the program.

C.  1.  The offender may request consideration for the drug court program as follows:

a. if the offender is incarcerated, the offender must sign and complete the eligibility form and return it to the sheriff, if the offender is held in the county jail; or to the chief of police, if the offender is held in a city jail.  The sheriff or chief of police, upon receipt of the eligibility form, shall file the form with the district attorney at the time of filing the criminal case record or at any time during the period of incarceration when the offender completes the form after the criminal case record has been filed, or

b. after release of the offender from incarceration, the offender must sign and complete the eligibility form and file it with the district attorney or the court, prior to or at the time of either initial appearance or arraignment.

2.  Any offender desiring legal consultation prior to signing or completing the form for consideration in a drug court program shall be referred to the defense attorney of the drug court team, or a public defender, if the offender is indigent, or allowed to consult with private legal counsel.

3.  Nothing contained in the provisions of this subsection shall prohibit the drug court from considering any offender deemed eligible for the program at any time prior to sentencing whose case has been prosecuted in the traditional manner, or upon a violation of parole or probation conditions relating to substance abuse, upon recommendation of the district attorney as provided in Section 9 of this act.

D.  When an offender has filed a voluntary request to be considered for a drug court program on the appropriate form, the district attorney shall indicate his or her approval of the request by filing the form with the drug court judge.  Upon the filing of the request form by the district attorney, an initial hearing shall be set before the drug court judge.  The hearing shall be not less than three (3) work days nor more than five (5) work days after the date of the filing of the request form.  Notice of the hearing shall be given to the drug court team, or in the event no drug court team is designated, to the offender, the district attorney, and to the public defender.  The offender shall be required to notify any private legal counsel of the date and time of the hearing.

Added by Laws 1997, c. 359, § 3, eff. July 1, 1997.

§22-471.3.  Initial hearing.

A.  At the initial hearing for consideration of an offender for a drug court program, the district attorney shall determine whether or not:

1.  The offender has approval to be considered for the drug court program;

2.  The offender has been admitted to the program within the preceding five (5) years; and

3.  Any statutory preclusion, other prohibition, or program limitation exists and is applicable to considering the offender for the program.

The district attorney may object to the consideration of an offender for the drug court program at the initial hearing.

B.  If the offender voluntarily consents to be considered for the drug court program, has signed and filed the required form requesting consideration, and no objection has been made by the district attorney, the court shall refer the offender for a drug court investigation as provided in Section 5 of this act, and set a date for a hearing to determine final eligibility for admittance into the program.

C.  Upon any objection of the district attorney for consideration of an offender for the program, the court shall deny consideration of the offender's request for participation in the drug court program.  Upon denial for consideration in the drug court program at the initial hearing, the criminal case shall proceed in the traditional manner.  An objection by the district attorney and the subsequent denial of consideration of the offender for the program shall not preclude any future consideration of the offender for the drug court program with the approval of the district attorney.

Added by Laws 1997, c. 359, § 4, eff. July 1, 1997.

§22-471.4.  Drug court investigation.

A.  When directed by the drug court judge, the supervising staff for the drug court program shall make an investigation of the offender under consideration to determine whether or not the offender is a person who:

1.  Would benefit from the drug court program; and

2.  Is appropriate for the drug court program.

B.  The drug court investigation shall be conducted through a standardized screening test and personal interview.  A more comprehensive assessment may take place at the time the offender enters the treatment portion of the program and may take place at any time after placement in the drug court program.  The investigation shall determine the original treatment plan which the offender will be required to follow, if admitted to the program.  Any subsequent assessments or evaluations by the treatment provider, if the offender is admitted to the program, may be used to determine modifications needed to the original treatment plan.  The investigation shall include, but not be limited to, the following information:

1.  The person's age and physical condition;

2.  Employment and military service records;

3.  Educational background and literacy level;

4.  Community and family relations;

5.  Prior and current drug and alcohol use;

6.  Mental health and medical treatment history, including substance abuse treatment history;

7.  Demonstrable motivation; and

8.  Other mitigating or aggravating factors.

C.  The drug court investigation shall be conducted after the initial hearing for consideration and before the hearing for final determination of eligibility for the drug court program.  When an offender is appropriate for admittance to the program, the supervising staff shall make a recommendation for the treatment program or programs that are available in the jurisdiction and which would benefit the offender and accept the offender.  The investigation findings and recommendations for program placement shall be reported to the drug court judge, the district attorney, the offender, and the defense attorney prior to the next scheduled hearing.

D.  The district attorney and the defense attorney for the offender shall independently review the findings and recommendations of the drug court investigation report.  For an offender to remain eligible for consideration in the program, both the district attorney and the defense attorney must accept the recommended treatment plan, and shall negotiate the terms of the written plea agreement with all punishment provisions specified before the scheduled hearing date for determining final eligibility.  Upon failure of the district attorney and defense attorney to negotiate the written plea agreement, the criminal case shall be withdrawn from the drug court program and processed in the traditional manner.  The punishment provisions of the written plea agreement shall emphasize reparation to the victim, community, and state.

E.  The hearing to determine final eligibility shall be set not less than three (3) work days nor more than seven (7) work days from the date of the initial hearing for consideration, unless extended by the court.

F.  For purposes of this act, "supervising staff" means a Department of Corrections employee assigned to monitor offenders in the drug court program, a community provider assigned to monitor offenders in the program, a state or local agency representative or a certified treatment provider participating in the program, or a person designated by the judge to perform drug court investigations.

Added by Laws 1997, c. 359, § 5, eff. July 1, 1997.

§22-471.5.  Admissibility of statements or evidence.

A.  1.  Any statement, or any information procured therefrom, made by the offender to any supervising staff, which is made during the course of any drug court investigation conducted by the supervising staff pursuant to Section 5 of this act, and any report of the supervising staff's findings and recommendations to the court, the district attorney, or the defense counsel shall not be admissible in the criminal case pending against the offender.

2.  Any statement, or any information procured therefrom, with respect to the specific offense for which the offender was arrested or is charged, which is made to any supervising staff subsequent to the granting of admission of the offender to the drug court program, shall not be admissible in the pending criminal case nor shall such be grounds for the revocation of an offender from the program.

3.  In the event that an offender is denied admission to the drug court program or is subsequently revoked from the program, any information gained from the drug court investigation, any statements or information divulged during the drug court investigation or any treatment session shall not be used in the sentencing of the offender for the original criminal offense.

4.  The restrictions provided in this section shall not preclude the admissibility of statements or evidence obtained by the state from independent sources.

B.  1.  The offender, as consideration for entering the drug court program, must consent to a full and complete photographic record of property which was to be used as evidence in the pending criminal case.  The photographic record shall be competent evidence of such property and admissible in any criminal action or proceeding as the best evidence.

2.  After the photographic record is made, the property shall be returned as follows:

a. property, except that which is prohibited by law, shall be returned to its owner after proper verification of title,

b. the return to the owner shall be without prejudice to the state or to any person who may have a claim against the property, and

c. when a return is made to the owner, the owner shall sign, under penalty of perjury, a declaration of ownership, which shall be retained by the person in charge of the property at the police department or sheriff's office.

Added by Laws 1997, c. 359, § 6, eff. July 1, 1997.

§22-471.6.  Final eligibility hearing - Acceptance into program - Duration of participation - Costs and fees.

A.  The drug court judge shall conduct a hearing as required by subsection E of Section 471.4 of this title to determine final eligibility by considering:

1.  Whether or not the offender voluntarily consents to the program requirements;

2.  Whether or not to accept the offender based upon the findings and recommendations of the drug court investigation authorized by Section 471.4 of this title;

3.  Whether or not there is a written plea agreement, and if so, whether the terms and conditions of the written negotiated plea between the district attorney, the defense attorney, and the offender are appropriate and consistent with the penalty provisions and conditions of other similar cases;

4.  Whether or not there is an appropriate treatment program available to the offender and whether or not there is a recommended treatment plan; and

5.  Any information relevant to determining eligibility; provided, however, an offender shall not be denied admittance to any drug court program based upon an inability to pay court costs or other costs or fees.

B.  At the hearing to determine final eligibility for the drug court program, the judge shall not grant any admission of any offender to the program when:

1.  The required treatment plan and plea agreement have not been completed;

2.  The program funding or availability of treatment has been exhausted;

3.  The treatment program is unwilling to accept the offender;

4.  The offender was ineligible for consideration by the nature of a violent offense at the time of arrest, and the charge has been modified to meet the eligibility criteria of the program; or

5.  The offender is inappropriate for admission to the program, in the discretion of the judge.

C.  At the final eligibility hearing, if evidence is presented that was not discovered by the drug court investigation, the district attorney or the defense attorney may make an objection and may ask the court to withdraw the plea agreement previously negotiated.  The court shall determine whether to proceed and overrule the objection, to sustain the objection and transfer the case for traditional criminal prosecution, or to require further negotiations of the plea or punishment provisions.  The decision of the judge for or against eligibility and admission shall be final.

D.  When the court accepts the treatment plan with the written plea agreement, the offender, upon entering the plea as agreed by the parties, shall be ordered and escorted immediately into the program.  The offender must have voluntarily signed the necessary court documents before the offender may be admitted to treatment.  The court documents shall include:

1.  Waiver of the offender's rights to speedy trial;

2.  A written plea agreement which sets forth the offense charged, the penalty to be imposed for the offense in the event of a breach of the agreement, and the penalty to be imposed, if any, in the event of a successful completion of the treatment program; provided, however, incarceration shall be prohibited when the offender completes the treatment program;

3.  A written treatment plan which is subject to modification at any time during the program; and

4.  A written performance contract requiring the offender to enter the treatment program as directed by the court and participate until completion, withdrawal, or removal by the court.

E.  If admission into the drug court program is denied, the criminal case shall be returned to the traditional criminal docket and shall proceed as provided for any other criminal case.

F.  At the time an offender is admitted to the drug court program, any bail or undertaking on behalf of the offender shall be exonerated.

G.  The period of time during which an offender may participate in the active treatment portion of the drug court program shall be not less than six (6) months nor more than twenty-four (24) months and may include a period of supervision not less than six (6) months nor more than one (1) year following the treatment portion of the program.  All participating treatment providers shall be certified by the Department of Mental Health and Substance Abuse Services and shall be selected and evaluated for performance-based effectiveness annually by the Department of Mental Health and Substance Abuse Services.  Treatment programs shall be designed to be completed within twelve (12) months and shall have relapse prevention and evaluation components.

H.  The drug court judge shall order the offender to pay court costs, treatment costs, drug testing costs, a program user fee not to exceed Twenty Dollars ($20.00) per month, and necessary supervision fees, unless the offender is indigent.  The drug court judge shall establish a schedule for the payment of costs and fees.  The cost for treatment, drug testing, and supervision shall be set by the treatment and supervision providers respectively and made part of the court's order for payment.  User fees shall be set by the drug court judge within the maximum amount authorized by this subsection and payable directly to the court clerk for the benefit and administration of the drug court program.  Treatment, drug testing, and supervision costs shall be paid to the respective providers.  The court clerk shall collect all other costs and fees ordered.  The remaining user fees shall be remitted to the State Treasurer by the court clerk for deposit in the Department of Mental Health and Substance Abuse Services' Drug Abuse Education and Treatment Revolving Fund established pursuant to Section 2-503.2 of Title 63 of the Oklahoma Statutes.  Court orders for costs and fees pursuant to this subsection shall not be limited for purposes of collection to the maximum term of imprisonment for which the offender could have been imprisoned for the offense, nor shall any court order for costs and fees be limited by any term of probation, parole, supervision, treatment, or extension thereof.  Court orders for costs and fees shall remain an obligation of the offender with court monitoring until fully paid.

Added by Laws 1997, c. 359, § 7, eff. July 1, 1997.  Amended by Laws 1998, c. 53, § 1, eff. July 1, 1998; Laws 2001, c. 258, § 6, eff. July 1, 2001.

§22-471.7.  Monitoring of treatment progress.

A.  The designated drug court judge shall make all judicial decisions concerning any case assigned to the drug court docket or program.  The judge shall require progress reports and a periodic review of each offender during his or her period of participation in the drug court program or for purposes of collecting costs and fees after completion of the treatment portion of the program.  Reports from the treatment providers and the supervising staff shall be presented to the drug court judge as specified by the treatment plan or as ordered by the court.

B.  Upon the written or oral motion of the treatment provider, the district attorney, the defense attorney, the defendant, or the supervising staff, the drug court judge shall set a date for a hearing to review the offender, the treatment plan, and the provisions of the performance contract.  Notice shall be given to the offender and the other parties participating in the drug court case three (3) days before the hearing may be held.

C.  The judge may establish a regular schedule for progress hearings for any offender in the drug court program.  The district attorney shall not be required to attend regular progress hearings, but shall be required to be present upon the motion of any party to a drug court case.

D.  The treatment provider, the supervising staff, the district attorney, and the defense attorney shall be allowed access to all information in the offender's drug court case file and all information presented to the judge at any periodic review or progress hearing.

E.  The drug court judge shall recognize relapses and restarts in the program which are considered to be part of the rehabilitation and recovery process.  The judge shall accomplish monitoring and offender accountability by ordering progressively increasing sanctions or providing incentives, rather than removing the offender from the program when relapse occurs, except when the offender's conduct requires revocation from the program.  Any revocation from the drug court program shall require notice to the offender and other participating parties in the case and a revocation hearing.  At the revocation hearing, if the offender is found to have violated the conditions of the plea agreement or performance contract and disciplinary sanctions have been insufficient to gain compliance, the offender shall be revoked from the program and sentenced for the offense as provided in the plea agreement.

F.  Upon application of any participating party to a drug court case, the judge may modify a treatment plan at any hearing when it is determined that the treatment is not benefiting the offender.  The primary objective of the judge in monitoring the progress of the offender and the treatment plan shall be to keep the offender in treatment for a sufficient time to change behaviors and attitudes.  Modification of the treatment plan requires a consultation with the treatment provider, supervising staff, district attorney, and the defense attorney in open court.

G.  The judge shall be prohibited from amending the written plea agreement after an offender has been admitted to the drug court program.  Nothing in this provision shall be construed to limit the authority of the judge to remove an offender from the program and impose the required punishment stated in the plea agreement after application, notice, and hearing.

Added by Laws 1997, c. 359, § 8, eff. July 1, 1997.

§22-471.8.  Use of program as disciplinary sanction.

The drug court program may be utilized as a disciplinary sanction for a violation of a condition of parole related to substance abuse for eligible offenses, or in a case where the offender has been tried for an eligible offense in the traditional manner, given either a deferred or suspended sentence, and has violated a condition of the sentence.  The judge shall not order an offender into treatment within the scope of any drug court program without prior approval from the designated drug court team, or the district attorney if no team is designated.  Any judge having a criminal case assigned where drug court processing appears to be more appropriate for the offender, may request a review of the case by the drug court team, or if no team is designated, a review by the district attorney and the defense attorney.  If both the district attorney and the defense attorney or offender agree, the case may be transferred to the drug court program with the approval of a designated drug court judge.  After a case has been transferred to the drug court docket, it shall continue with the designated drug court judge until the offender is revoked or released from the program.  The offenders whose cases have been transferred from a traditional criminal case docket to the drug court docket shall be required to have a drug court investigation and complete the drug court process prior to placement in any treatment program authorized by this act.

Added by Laws 1997, c. 359, § 9, eff. July 1, 1997.

§22-471.9.  Successful completion of program.

A.  When an offender has successfully completed the drug court program, the criminal case against the offender shall be:

1.  Dismissed if the offense was a first felony offense; or

2.  If the offender has a prior felony conviction, the disposition shall be as specified in the written plea agreement.

B.  The final disposition order for a drug court case shall be filed with the judge assigned to the case, and shall indicate the sentence specified in the written plea agreement.  A copy of the final disposition order for the drug court case shall also be filed in the original criminal case file under the control of the court clerk which is open to the public for inspection.  Original criminal case files which are under the control of the court clerk and which are subsequently assigned to the drug court program shall be marked with a pending notation until a final disposition order is entered in the drug court case.  After an offender completes the program, the drug court case file shall be sealed by the judge and may be destroyed after ten (10) years.  The district attorney shall have access to sealed drug court case files without a court order.

C.  A record pertaining to an offense resulting in a successful completion of a drug court program shall not, without the offender's consent in writing, be used in any way which could result in the denial of any employee benefit.

D.  Successful completion of a drug court program shall not prohibit any administrative agency from taking disciplinary action against any licensee or from denying a license or privilege as may be required by law.

Added by Laws 1997, c. 359, § 10, eff. July 1, 1997.

§22-471.10.  Implementation of act.

A.  For purposes of this act, the following state agencies shall jointly develop a standardized testing instrument with an appropriate scoring device for use by all the district courts in this state in implementing the Oklahoma Drug Court Act:

1.  The Department of Corrections;

2.  The Administrative Office of the Courts;

3.  The Department of Mental Health and Substance Abuse Services;

4.  The State Department of Health;

5.  The State Department of Education;

6.  The Office of Juvenile Affairs; and

7.  The Oklahoma Department of Vocational and Technical Education.

B.  The Administrative Office of the Courts shall promulgate rules, procedures, and forms necessary to implement the Oklahoma Drug Court Act to ensure statewide uniformity in procedures and forms.  The Department of Mental Health and Substance Abuse Services is directed to develop a training and implementation manual for drug court programs with the assistance of the State Department of Health, the State Department of Education, the Oklahoma Department of Career and Technology Education, the Department of Corrections, the Office of Juvenile Affairs, and the Administrative Office of the Courts.  The Department of Mental Health and Substance Abuse Services shall provide technical assistance to the district courts in implementing drug court programs.

C.  All participating agencies shall promulgate rules as necessary to comply with the provisions of this act.  Each district court shall establish rules for their jurisdiction upon implementation of a drug court program, pursuant to the provisions of this act.

Added by Laws 1997, c. 359, § 11, eff. July 1, 1997.  Amended by Laws 2001, c. 33, § 21, eff. July 1, 2001.

§22-471.11.  Deferred prosecution programs.

A.  Nothing in this act shall preclude the establishment of substance abuse treatment programs in support of a deferred prosecution program authorized by Section 305.1 of Title 22 of the Oklahoma Statutes.  Any such programs established after July 1, 1997, or in existence on July 1, 1997, may be known as a drug court program; provided, the program is not contrary to public interest or provision of law.

B.  Any drug court program established and in existence prior to July 1, 1997, which is not limited to treatment programs in support of deferred prosecution programs shall be considered a drug court program, as defined in Section 471.1 of this title, for all purposes of the Oklahoma Drug Court Act.

Added by Laws 1997, c. 359, § 12, eff. July 1, 1997.  Amended by Laws 1999, c. 348, § 5, eff. July 1, 1999.

§22-472.  Anna McBride Act - Mental health courts.

A.  This section shall be known and may be cited as the "Anna McBride Act".

B.  Any district or municipal court of this state may establish a mental health court pilot program pursuant to the provisions of this section, subject to the availability of funds.

C.  The court may request assistance from the Department of Mental Health and Substance Abuse Services which shall be the primary agency to assist in developing and implementing a mental health court pilot program.

D.  For purposes of this section, "mental health court" means a judicial process that utilizes specially trained court personnel to expedite the case and explore alternatives to incarceration for offenders charged with criminal offenses other than a crime listed in paragraph 2 of Section 571 of Title 57 of the Oklahoma Statutes who have a mental illness or a developmental disability, or a co-occurring mental illness and substance abuse disorder.  The district attorney's office may use discretion in the prosecution of those offenders specified in this subsection subject to the restrictions provided in subsection E of this section.

E.  The court shall have the authority to exclude from mental health court any offender arrested or charged with any violent offense or any offender who has a prior felony conviction in this state or another state for a violent offense.  Eligibility and entry by an offender into the mental health court program is dependent upon prior approval of the district attorney.  Eligible offenses may further be restricted by the rules of the specific mental health court program.  The court also shall have the authority to exclude persons from mental health court who have a propensity for violence.

Added by Laws 2002, c. 285, § 1.  Amended by Laws 2003, c. 76, § 1, eff. Nov. 1, 2003.

§22491.  Time to answer indictment or information.

If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.

R.L.1910, § 5778.  

§22492.  Pleading to indictment or information.

If the defendant do not require time, as provided in the last section, or if he do, then on the next day, or at such further day as the court may have allowed him, he may, in answer to the arraignment, either move the court to set aside the indictment, or information or may demur or plead thereto.

R.L.1910, § 5779.  

§22493.  Indictment or information set aside, when.

The indictment or information must be set aside by the court, in which the defendant is arraigned, and upon his motion in any of the following cases:

1.  When it is not found, endorsed, presented or filed, as prescribed by the statutes or when the grand jury is not drawn and impaneled as provided by law, and that fact is known to the defendant at or before the time the jury is sworn to try the cause: Provided, that the defendant shall be conclusively presumed to know matters of record.

2.  When the names of the witnesses examined before the grand jury are not made to appear on some part of the indictment, as provided in this chapter.

3.  When a person is permitted to be present during the session of a grand jury while the vote on the finding of the indictment is being taken, or when it is shown that after the grand jury was first impaneled any member or members thereof, were discharged and their places filled by persons not regularly drawn from the jury list, as provided by law, and that they were admitted into the grand jury or took part in their deliberations, or that the grand jury was not impaneled anew as a whole body in open court.

§22494.  Hearing on motion to set aside indictment or information.

To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment, or information, the defendant may file his application before any court of record in the county, setting out and alleging that he is being proceeded against in a certain court, naming it, and setting out a copy of his motion and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof.  The court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses to testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to support the motion.  The mover shall pay the costs of the proceeding.  He shall notify the district attorney at least two clear days before he proceeds, of the time and place of taking such testimony, and the district attorney may be present and crossexamine the witnesses and if need be the case in the district court must be adjourned for that purpose.

R.L. 1910, § 5781.  

§22495.  Witnesses on hearing to set aside indictment or information.

All witnesses, including grand jurors, shall be bound to answer fully, and shall not be answerable for the testimony so given in any way, except for the crime of perjury committed in giving such evidence.  When a grand juror has been fully examined as to his qualifications to sit, and has answered under oath that he is qualified, and has been received by the court and permitted to act, his incompetency shall not thereafter be shown as a ground of objection to any indictment returned by that grand jury.

R.L.1910, § 5782.  

§22496.  Objection to indictment or information waived, when.

If the motion to set aside the indictment or information be not made the defendant is precluded from afterwards taking the objections mentioned in the last section.

R.L.1910, § 5783.  

§22497.  Motion to set aside indictment or information heard, when.

The motion must be heard at the time it is made unless for good cause the court postpone the hearing to another time.

R.L.1910, § 5784. R.L.1910, § 5784.  

§22498.  Defendant to answer indictment, when.

If the motion be denied, the defendant must immediately answer to the indictment, either by demurring or pleading thereto.

R.L.1910, § 5785.

§22499.  Motion sustained  Defendant discharged, or bail exonerated, when.

If the motion be granted the court must order that the defendant, if in custody, be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him unless it direct that the case be resubmitted to the same or another grand jury.

R.L.1910, § 5786.  

§22500.  Resubmission of case  Bail.

If the court direct that the case be resubmitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment or information; and unless a new indictment or information is found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed in the preceding section.

R.L.1910, § 5787.  

§22501.  Setting aside indictment or information not a bar.

An order to set aside an indictment or information as provided in this article is no bar to a further prosecution for the same offense.

R.L.1910, § 5788.  

§22502.  Defendant's pleadings.

The only pleading on the part of the defendant is either a demurrer or a plea.

R.L.1910, § 5789.  

§22503.  Defendant to plead in open court.

Both the demurrer and the plea must be put in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.

R.L.1910, § 5790.  

§22504.  Demurrer to indictment or information.

The defendant may demur to the indictment or information when it appears upon the face thereof either:

1.  That the grand jury by which an indictment was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.

2.  That it does not substantially conform to the requirements of this chapter.

3.  That more than one offense is charged in the indictment or information.

4.  That the facts stated do not constitute a public offense.

5.  That the indictment or information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

R.L.1910, § 5791.  

§22-504.1.  Motion to quash for insufficient evidence - Proof - Setting aside of indictment or information - Double jeopardy - Denial of motion.

A.  In addition to a demurrer to the indictment or information, as provided in Section 504 of Title 22 of the Oklahoma Statutes, the defendant may file a motion to quash for insufficient evidence in felony cases after preliminary hearing.  The defendant must establish beyond the face of the indictment or information that there is insufficient evidence to prove any one of the necessary elements of the offense for which the defendant is charged.

B.  The motion to quash for insufficient evidence must be set for hearing on a day certain at the time it is made and notice shall be provided to all parties.

C.  The indictment or information must be set aside by the court, in which the defendant is formally arraigned, if judgment for the defendant on a motion to quash for insufficient evidence beyond the face of the information is granted.

D.  An order to set aside an indictment or information on judgment for the defendant on a motion to quash for insufficient evidence, as provided in this section, shall not be a bar to a further prosecution for the same offense.  A denial of the motion to quash is not a final order from which a defendant may appeal.

Added by Laws 1990, c. 261, § 4, emerg. eff. May 24, 1990.

§22505.  Demurrer to indictment or information, requisites of.

The demurrer must be in writing, signed either by the defendant or his counsel, and filed.  It must distinctly specify the grounds of the objection to the indictment or information, or it must be disregarded.

R.L.1910, § 5792.  

§22506.  Hearing on demurrer.

Upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

R.L.1910, § 5793.  

§22507.  Ruling on demurrer.

Upon considering  the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes.

R.L.1910, § 5794.  

§22508.  Demurrer sustained, effect of.

If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.

R.L.1910, § 5795.  

§22509.  Demurrer sustained  Defendant discharged or bail exonerated, when.

If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.

R.L.1910, § 5796.  

§22510.  Proceedings if case resubmitted.

If the court direct that the case be further prosecuted, the same proceedings must be had thereon as are prescribed in this article.

R.L.1910, § 5797.  

§22511.  Demurrer overruled, defendant to plead.

If the demurrer be overruled, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such time as the court may allow.  If he does not plead, judgment may be pronounced against him.

R.L.1910, § 5798.  

§22512.  Certain objections, how taken.

When the objections mentioned in Section 504 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken after the arraignment of the defendant, or may be taken at the trial, under the plea of not guilty, and in arrest of judgment.

R.L.1910, § 5799; Laws 1968, c. 175, § 1, eff. Jan. 13, 1969.  

§22513.  Pleas to indictment or information.

There are four kinds of pleas to an indictment or information. A plea of:

First, Guilty.

Second, Not guilty.

Third, Nolo contendere, subject to the approval of the court. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.

Fourth, A former judgment of conviction or acquittal of the offense charged, which must be specially pleaded, either with or without the plea of not guilty.

R.L.1910, § 5800; Laws 1976, c. 20, § 1, eff. Oct. 1, 1976.  

§22514.  Pleas to be oral  Entry.

Every plea must be oral and must be entered upon the minutes of the court.

R.L.1910, § 5801.  

§22515.  Form of plea.

The plea must be entered in substantially the following form:

1.  If the defendant plead guilty:

The defendant pleads that he is guilty of the offense charged in this indictment or information.

2.  If he plead not guilty:

The defendant pleads that he is not guilty of the offense charged in this indictment or information.

3.  If he plead a former conviction or acquittal:

The defendant pleads that he has already been convicted (or acquitted, as the case may be), of the offense charged in this indictment or information, by the judgment of the court of ....... (naming it), rendered at ........  (naming the place), on the ...... day of .........

R.L.1910, § 5802.  

§22516.  Plea of guilty.

A plea of guilty can in no case be put in, except by the defendant himself, in open court, unless upon an indictment or information against a corporation, in which case it can be put in by counsel.

§22517.  Plea of guilty may be withdrawn.

The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.

R.L.1910, § 5804.  

§22518.  Plea of not guilty, issues on.

The plea of not guilty puts in issue every material allegation in the indictment or information.

R.L.1910, § 5805.  

§22519.  Plea of not guilty, evidence under.

All matters of fact tending to establish a defense other than specified in third subdivision of Section 5710 may be given in evidence under the plea of not guilty.

R.L.1910, § 5806.  

§22520.  Acquittal, what does not constitute.

If the defendant was formally acquitted on the ground of variance between the indictment or information and proof, or the indictment or information was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.

R.L.1910, § 5807.  

§22521.  Acquittal, what constitutes.

When, however, he was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance in the indictment or information on which he was acquitted.

R.L.1910, § 5808.  

§22522.  Former acquittal or conviction as bar.

When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.

R.L.1910, § 5809.  

§22523.  Refusal to plead.

If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.

R.L.1910, § 5810.  

§22524.  Preliminary hearing on felony indictment  Time for request  Witnesses  Dismissal.

Upon the return and filing of an indictment for a felony, the defendant so charged and arrested thereon, or the state, upon filing a request in writing, shall be entitled to have a copy of said indictment, certified by the court clerk, filed with a district, superior, common pleas or county judge, to be designated by the Judge presiding over the grand jury, and the defendant shall have a preliminary hearing thereon, before such designated judge, as a magistrate, as though said charge had been originally filed by verified information, with such magistrate, and under the law applying to the institution and conduct of prosecutions by information filed by the state.  Any such request must be filed within ten (10) days after the filing of such indictment with the court clerk, or within ten (10) days after the defendant charged under said indictment has been arrested thereon, whichever is later.  Upon such preliminary hearing, the members of the grand jury shall not be subpoenaed or called as a witness except upon an indictment charging the commission of the offense of perjury before the grand jury.  The names of witnesses other than those endorsed on the indictment may be endorsed on the indictment prior to said preliminary hearing and such additional persons may be called as witnesses at such preliminary hearing; provided, that this section shall not apply to motion to quash or vacate the grand jury proceedings or indictment upon other grounds.  Provided, grand jurors may be called as rebuttal witnesses.

Upon application of the defendant or the state, after the filing of the copy of the indictment with the magistrate, as hereinabove provided, the court may order the indictment filed with the court clerk dismissed and any bond made in the case exonerated.

Laws 1961, p. 237, § 1; Laws 1968, c. 258, § 1, emerg. eff. April 29, 1968.  

§22561.  Change of venue  When granted  Application  Affidavits and evidence  Removal as to part of defendants.

Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the district attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county.  The district attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court.  When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant.

§22562.  Change of venue  Proceedings  Costs and expenses.

A.  The order of removal from the county must be entered upon the minutes and the court clerk must thereupon make out, and within ten (10) days transmit to the county to which the action is removed, a certified copy of the order of removal and the record, and shall transmit the pleadings including the undertaking for the appearance of the defendant, and of the witnesses, and the cause must be docketed and stand for trial within six (6) months from the date the cause was ordered removed.

B.  If an order of removal is entered, all expenses incurred as a result of the action prior to the date of the order of removal shall be taxed as costs and shall remain payable to the court fund of the county from which the action was removed.

C.  Except as otherwise provided by this section, the court fund of the county from which the action is removed shall be liable for the expense and charge of removing, delivering and keeping the prisoner, and the fees of jurors and witnesses in attendance during the trial, court reporter's fees, all fees and mileage of the sheriff, and the per diem of bailiffs during the time said cause is on trial, and such other expenses as may be lawfully incurred incident to the trial, which costs and expenses shall be approved by the Court Administrator of the Supreme Court of the State of Oklahoma and certified by the clerk of the court to which the action was transferred to the court clerk of the county from which the cause was removed and shall show the name of each person and the amount due to him.

D.  On receipt of such certificate, the clerk of the court from which the action was transferred shall draw his warrants on the  court fund for the total amount of costs allowed by the transferee court, payable to the order of the court fund of the transferee court subject to the order of the person entitled thereto, and forward the same to the clerk of the court where the cause was tried, who shall deposit it in the court fund.

E.  If the court fund of the county from which the action was removed does not contain sufficient revenue to make payment to the transferee court, the court clerk of the payor county shall notify the Administrative Director of the courts who shall make payment of any deficiency in the amount due and owing to the transferee court from the Supreme Court Revolving Fund.

F.  All fees not claimed two (2) years after having been received by the clerk of the transferee court, shall by him be returned to the clerk of the transferor court to be held in the court fund for the benefit of the owner for a period of one (1) year, and, if not claimed within that time, such fees shall become the property of the court fund of the county.

R.L. 1910, § 5817.  Amended by Laws 1971, c. 155, § 1, emerg. eff. May 22, 1971; Laws 1994, c. 225, § 13, eff. July 1, 1994.

§22563.  Disposition of defendant on change of venue.

If the defendant is in custody, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed, and he must be removed according to the terms of such order.

R.L.1910, § 5818.  

§22564.  Change of venue  Court may require bail.

When the court has ordered a removal of the action, it may require the accused, if the offense be then bailable, to enter into an undertaking with good and sufficient sureties to be approved by the court, in such sum as the court may direct conditioned for his appearance in the court to which the action has been removed, on the first day of the next term thereof, and to abide the order of such court; and in default of such undertaking, a warrant shall be issued to the sheriff or other proper officer commanding him safely to keep the prisoner and at the proper time to convey him to the jail of the county where he is to be tried, there to be safely kept by the jailer thereof until discharged by due course of law.

R.L.1910, § 5819.  

§22565.  Change of venue  Recognizance of witnesses.

When a removal of the action is allowed, the court may recognize the witnesses on the part of the state to appear before the court to which the defendant is to be tried.

R.L.1910, § 5820.  

§22566.  Trial on change of venue  Records and papers.

The court to which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court.  If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must at any time upon the application of the district attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained.

R.L.1910, § 5821.  

§22576.  Trial before judge other than one who conducted preliminary examination.

The judge who conducts the preliminary examination shall not try the case except with the consent of all parties.

Laws 1968, c. 175, § 2, eff. Jan. 13, 1969.  

§22581.  Issue of fact arises, when.

An issue of fact arises,

1st, upon a plea of not guilty, or,

2nd, upon a plea of a former conviction or acquittal of the same offense.

R.L.1910, § 5822.  

§22582.  Issue of fact, how tried.

Issues of fact must be tried by a jury.

R.L.1910, § 5823.  

§22583.  Defendant must be present, when.

If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney, by an order or warrant, require the personal attendance of the defendant at the trial.

§22584.  Postponement for cause.

When an indictment or information is called for trial, or at any time previous thereto, the court may, upon sufficient cause shown by either party, as in civil cases, direct the trial to be postponed to another day in the same or next term.

R.L.1910, § 5837.  

§22585.  Postponement for investigation of claimed alibi.

Whenever testimony to establish an alibi on behalf of the defendant shall be offered in evidence in any criminal case in any court of record of the State of Oklahoma, and notice of the intention of the defendant to claim such alibi, which notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense, shall not have been served upon the district attorney at or before five (5) days prior to the trial of the case, upon motion of the district attorney, the court may grant a postponement for such time as it may deem necessary to make an investigation of the facts in relation to such evidence.

Laws 1935, p. 18, § 1.  

§22591.  Same jurors in both civil and criminal actions.

The jurors duly drawn and summoned for the trial of civil actions, may also be the jurors for the trial of criminal actions.

R.L.1910, § 5825.  

§22592.  Trial jury  How formed.

Trial juries for criminal actions may also be formed in the same manner as trial juries in civil actions.

R.L.1910, § 5826.  

§22593.  Clerk to prepare and deposit ballots.

At the opening of the court the clerk must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box.

R.L.1910, § 5827.  

§22594.  Names of panel called, when  Attachment for absent jurors.

When the case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion, wait or not for the return of the attachment.

R.L.1910, § 5828.  

§22595.  Manner of drawing jury from box.

Before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein.  The clerk must then, without looking at the ballots, draw them from the box.

§22596.  Disposition of ballots.

When the jury is completed, the ballots containing the names of the jurors sworn must be laid aside and kept apart from the ballots containing the names of the other jurors, until the jury so sworn is discharged.

R.L.1910, § 5830.  

§22597.  Disposition of ballots  After jury discharged.

After the jury is so discharged, the ballots containing their names must be again folded and returned to the box, and so on, as often as a trial is had.

R.L.1910, § 5831.  

§22598.  Disposition of ballot  When juror is absent or excused.

If a juror be absent when his name is drawn or be set aside, or excused from serving on the trial, the ballot containing his name must be folded and returned to the box as soon as the jury is sworn. R.L.1910, § 5832.  

§22599.  Jurors summoned to complete jury  Treated as original panel.

The names of persons summoned to complete the jury as provided in the chapter on "Jurors", must be written on distinct pieces of paper, folded each as nearly alike as possible, and so that the name cannot be seen, and must be deposited in the box before mentioned.

R.L.1910, § 5833.  

§22600.  Drawing the jury.

The clerk must thereupon, under the direction of the court, publicly draw out of the box so many of the ballots, one after another, as are sufficient to form the jury.

R.L.1910, § 5834. R.L.1910, § 5834.  

§22601.  Number of jurors  Oaths  Fines not exceeding Five Hundred Dollars.

The jury consists of twelve persons except that in misdemeanors it shall consist of six persons, chosen as prescribed by law, and sworn or affirmed well and truly to try and true deliverance to make between the State of Oklahoma and the defendant whom they shall have in charge, and a true verdict to give according to the evidence.  Criminal cases wherein the punishment for the offense charged is by a fine only not exceeding Five Hundred Dollars ($500.00) shall be tried to the court without a jury.

R.L.1910, § 5835; Laws 1968, c. 371, § 1, eff. Jan. 13, 1969; Laws 1991, c. 15, § 3, eff. July 1, 1991.

§22601a.  Alternate jurors  Challenges  Oath or affirmation  Attendance upon trial.

Whenever in the opinion of the court the trial of a cause is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of as many as two additional jurors to be known as "alternate juror".  Such alternate jurors shall be drawn from the same source, and in the same manner, and have the same qualifications as regular jurors, and be subject to examination and challenge as such jurors, except that the state shall be allowed one peremptory challenge to each alternate juror, and all parties defendant shall together, or any one party defendant for and on behalf and by the consent of all parties defendant, be allowed one peremptory challenge to each alternate juror.

The alternate jurors shall be sworn (or affirmed) to well and truly try and true deliverance make of all issues finally submitted to them as jurors in said cause, if any such issue shall be so finally submitted to them, and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, shall attend at all times upon the trial of the cause in company with the regular jurors and shall obey all orders and admonitions of the court; and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors, and, except as hereinafter provided, shall be discharged upon the final submission of the cause to the jury.

If, before the final submission of the cause to the jury, a regular juror, or two regular jurors, shall be discharged because of illness, or shall die, the court shall order one or both alternate jurors, as circumstances may require, to take their places in the jury box.  After an alternate juror is in the jury box, he shall be subject to the same regulations and requirements as other regular jurors.

Laws 1941, p. 88, § 2.  

§22601b.  Protracted deliberations  Sequestration of alternate jurors.

If, upon final submission of the cause, the court is of the opinion that the deliberations may be protracted, the court may order the alternate juror or jurors to remain sequestered physically or by admonition not to discuss the case with any person or allow any person to discuss the case with a juror.  In such event said alternate or alternates shall remain apart from the jury and not take part in its deliberations, but shall await the call of the court at some place designated by the court until such time as said alternate may be needed.  In the event one or two of the twelve jurors shall, during the course of deliberations, be discharged because of illness, or die, the court shall order one or both alternate jurors to take their places in the jury room and deliberations shall then continue.

In the event the cause is a bifurcated, twostage proceeding, the "final submission of the cause" shall occur when the jury retires to deliberate upon the sentence in the punishment or second stage of the proceedings.  In such a trial the alternates shall not be excused prior to commencement of deliberations in the second stage.

Added by Laws 1988, c. 109, § 25, eff. Nov. 1, 1988.  

§22602.  Affirmation.

Any juror who is conscientiously scrupulous of taking the oath above described, shall be allowed to make affirmation, substituting for the words "so help you God", at the end of the oath, the following: "This you do affirm under the pains and penalties of perjury".

R.L.1910, § 5836.  

§22621.  Challenges classed.

A challenge is an objection made to the trial jurors, and is of two kinds:

1.  To the panel.

2. To an individual juror.

R.L.1910, § 5838.  

§22622.  Several defendants  Challenges.

When several defendants are tried together they cannot sever their challenges, but must join therein.

R.L.1910, § 5839.  

§22631.  Panel defined.

The panel is a list of jurors returned by a sheriff, to serve at a particular court or for the trial of a particular action.

R.L.1910, § 5840.  

§22632.  Challenge to panel.

A challenge to the panel is an objection made to all the trial jurors returned, and may be taken by either party.

R.L.1910, § 5841.  

§22633.  Challenge to panel, causes for.

A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.

§22634.  When taken  Form and requisites.

A challenge to the panel must be taken before a jury is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.

R.L.1910, § 5843.  

§22635.  Issue on the challenge  Trying sufficiency.

If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.

R.L.1910, § 5844.  

§22636.  Challenge and exception may be amended or withdrawn.

If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge.  If the exception be allowed, the court may in like manner, permit an amendment of the challenge.

R.L.1910, § 5845.  

§22637.  Denial of challenge  Trial of fact questions.

If the challenge is denied the denial may, in like manner, be oral and must be entered upon the minutes of the court, and the court must proceed to try the questions of fact.

R.L.1910, § 5846.  

§22638.  Trial of challenge.

Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of challenge.

R.L.1910, § 5847.  

§22639.  Bias of officer, challenge for.

When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror.  Such challenge must be made in the same form, and determined in the same manner as if made to a juror.

R.L.1910, § 5848.  

§22640.  Procedure after decision of challenge.

If, upon an exception to the challenge, or a denial of the facts, the challenge be allowed, the court must discharge the jury, and another jury can be summoned for the same term forthwith from the body of the county or subdivision; or the judge may order a jury to be drawn and summoned in the regular manner.  If it be disallowed, the court must direct the jury to be impaneled.

R.L.1910, § 5849.  

§22651.  Defendant to be informed of right to challenge.

When twelve men are called as jurors, the defendant must be informed by the court or under its direction, of his right to challenge the jurors, and that he must do so before the jury is sworn to try the cause.

R.L.1910, § 5850.  

§22652.  Classes of challenge to individual.

A challenge to an individual juror is either:

First, Peremptory; or,

Second, For cause.

R.L.1910, § 5851.  

§22654.  Peremptory challenge defined.

A peremptory challenge may be taken by either party, and may be oral.  It is an objection to a juror for which no reason need be given, but upon which the court must excuse him.

§22655.  Peremptory challenges  Number allowed.

In all criminal cases the prosecution and the defendant are each entitled to the following peremptory challenges:  Provided, that if two or more defendants are tried jointly they shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges for each defendant as hereinafter set forth.

First.  In prosecutions for first degree murder, nine jurors each.

Second.  In other felonies, five jurors each.

Third.  In all nonfelony prosecutions, three jurors each.

§22656.  Challenge for cause.

A challenge for cause may be taken either by the state or the defendant.

R.L.1910, § 5855.  

§22657.  Challenges for cause classified.

It is an objection to a particular juror and is either:

1.  General, that the juror is disqualified from serving in any case on trial; or,

2.  Particular, that he is disqualified from serving in the case on trial.

R.L.1910, § 5856.  

§22658.  Causes for challenge, in general.

General causes of challenges are:

1.  A conviction for felony.

2.  A want of any of the qualifications prescribed by law, to render a person a competent juror, including a want of knowledge of the English language as used in the courts.

3.  Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror.

R.L.1910, § 5857.  

§22659.  Particular causes  Implied bias  Actual bias.

Particular causes of challenge are of two kinds:

1.  For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this chapter as implied bias.

2.  For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias.

§22660.  Implied bias, challenge for.

A challenge for implied bias may be taken for all or any of the following cases, and for no other:

1.  Consanguinity or affinity within the fourth degree, inclusive, to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or to the defendant.

2.  Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages.

3.  Being a party adverse to the defendant in a civil action, or having complained against, or been accused by him in a criminal prosecution.

4.  Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the prosecution.

5.  Having served on a trial jury which has tried another person for the offense charged in the indictment or information.

6.  Having been one of the jury formerly sworn to try the indictment or information and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it.

7.  Having served as a juror in a civil action brought against the defendant for the act charged as an offense.

8.  If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty of, in which case he shall neither be permitted nor compelled to serve as a juror.

§22661.  Right of exemption from service not cause for challenge.

An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.

R.L. 1910, § 5860.  

§22662.  Cause for challenge must be stated  Form and entry of challenge  Juror not disqualified for having formed opinion, when.

In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged.  In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.  The challenge may be oral, but must be entered upon the minutes of the court.

R.L.1910, § 5861.  

§22663.  Exception to the challenge.

The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon, except that if the exception be allowed the juror must be excluded.  The adverse party may also orally deny the facts alleged as the grounds of challenge.

R.L.1910, § 5862.  

§22664.  Trial of challenges.

All challenges, whether to the panel or to individual jurors shall be tried by the court, without the aid of triers.

R.L.1910, § 5863.  

§22665.  Trial of challenge  Examining jurors.

Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry therein.

R.L.1910, § 5864.  

§22666.  Other witnesses.

Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of testimony, on the trial of the challenges. R.L.1910, § 5865.  

§22667.  Ruling on challenge.

On the trial of a challenge the court must either allow or disallow the challenge and direct an entry accordingly upon the minutes.

R.L.1910, § 5866.  

§22691.  Challenges to individual jurors.

All challenges to individual jurors must be taken, first by the defendant and then by the state alternately.

R.L.1910, § 5867.  

§22692.  Order of challenges for cause.

The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:

1.  To the panel.

2.  To an individual juror for a general disqualification.

3.  To an individual juror for implied bias.

4.  To an individual juror for actual bias.

R.L.1910, § 5868.  

§22693.  Peremptory challenges.

If all challenges on both sides are disallowed, either party, first the state and then the defendant, may take a peremptory challenge, unless the peremptory challenges are exhausted.

R.L.1910, § 5869.  

§22701.  Defendant a competent witness  Comment on failure to testify  Presumption.

In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.

R.L.1910, § 5881.  

§22703.  Subpoena defined.

The process by which the attendance of a witness before a court or magistrate is required, is a subpoena.

R.L.1910, § 6009.  

§22704.  Magistrate may issue subpoena.

A magistrate before whom complaint is laid, or to whom a presentment of a grand jury or information is sent, may issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the state or of the defendant.

R.L.1910, § 6010.  

§22705.  District attorney to issue subpoenas for grand jury.

The district attorney may issue subpoena, subscribed by him, for witnesses within the state in support of the prosecution, or for such other witnesses as the grand jury may direct, to appear before the grand jury upon an investigation before them.

R.L.1910, § 6011.  

§22706.  Issuing subpoenas for trial.

The district attorney may in like manner issue subpoena for witnesses within the state, in support of an indictment or information, to appear before the court at which it is to be tried.

R.L.1910, § 6012.  

§22707.  Defendant's subpoenas.

The clerk of the court at which an indictment is to be tried, must, at all times, upon the application of the defendant, and without charge, issue as many blank subpoenas, under the seal of the court and subscribed by him as clerk, for witnesses within the state, as may be required by the defendant.

R.L.1910, § 6013.  

§22708.  Form of subpoena.

A subpoena, authorized by the last four sections, must be substantially in the following form:

IN THE NAME OF THE STATE OF

OKLAHOMA.

To .........  ,

Greeting:  You are commanded to appear before C. D., a justice of the peace of ........ at ....... (or the grand jury of the county of ......... or the district court of ......... county, or as the case may be), on the ........ (stating day and hour), and remain in attendance on and call of said ........ from day to day and term to term until lawfully discharged, as a witness in a criminal action prosecuted by the State of Oklahoma against E. F. (or to testify as the case may be).

R.L.1910, § 6014.  

§22709.  Continuances, witness must take notice of.

Every witness summoned in a criminal action pending in a district, superior or county court shall take notice of the postponements and continuances and when once summoned in such action shall, without further notice or summons, be in attendance upon such action, as such witness, until discharged by the court.

R.L.1910, § 6015.  

§22710.  Subpoena duces tecum.

If the books, papers or documents be required, a direction to the following effect must be continued in the subpoena:

And you are required also to bring with you the following: (Describe intelligently the books, papers or documents required).

R.L.1910, § 6016.  

§22711.  Service of subpoena by whom  Return.

A peace officer must serve in his county, city, town or village, as the case may be, any subpoena delivered to him for service, either on the part of the state or of the defendant, and must make a written return of the service, subscribed by him, stating the time and place of service without delay.  A subpoena may, however, be served by any other person.

R.L.1910, § 6017.  

§22-712.  Service, manner of - Cost.

A.  Service of subpoenas for witnesses in criminal actions in the district courts of this state shall be made in the same manner as in civil actions pursuant to Section 2004.1 of Title 12 of the Oklahoma Statutes.

B.  The cost of service of subpoenas shall be borne by the parties unless otherwise ordered by the court.

R.L. 1910, § 6018.  Amended by Laws 1984, c. 164, § 30, eff. Nov. 1, 1984; Laws 1985, c. 112, § 6, eff. Nov. 1, 1985; Laws 1997, c. 400, § 8, eff. July 1, 1997.

§22-715.  Witness residing outside county - Subpoena of court clerks.

A.  No person is obliged to attend as a witness before a court or magistrate outside the county where the witness resides or is served with a subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the district attorney, or of the defendant or the defendant's counsel, stating that he or she believes that the evidence and attendance of the witness is material and necessary, shall endorse on the subpoena an order for the attendance of the witness.

B.  The court clerks of this state shall not be subject to subpoena unless the court makes a specific finding that appearance and testimony are both material and necessary because of a written objection to the introduction of certified documents made by the defendant or other party prior to trial.

R.L.1910, § 6021; Laws 1999, c. 386, § 3, eff. Nov. 1, 1999.

§22716.  Disobedience to subpoena.

Disobedience to a subpoena, or a refusal to be sworn or to testify, may be punished by the court or magistrate, as for a criminal contempt, in the manner provided in civil procedure.

R.L.1910, § 6022.  

§22717.  Disobeying defendant's subpoena  Forfeiture.

A witness disobeying a subpoena issued on the part of the defendant, also forfeits to the defendant the sum of Fifty Dollars ($50.00), which may be recovered in a civil action.

R.L.1910, § 6023.  

§22-718.  Witnesses  Fees and mileage.

A witness who appears from another state to testify in this state in a criminal case or proceeding pursuant to a subpoena issued in accordance with the provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, Section 721 et seq. of this title, shall be reimbursed as prescribed by law for travel and expenses at rates not to exceed those prescribed by law for reimbursement of state employees traveling interstate.  Such witnesses shall receive the same fees as witnesses who appear from this state, pursuant to Section 81 of Title 28 of the Oklahoma Statutes.  If the witness is under eighteen (18) years of age, or requires the assistance of a guardian due to age or infirmity, the travel expenses of one parent or guardian may be reimbursed also.  The parent or guardian shall not be entitled to a witness fee.  Upon conviction, such fees and mileage shall be taxed as costs, collected and deposited as other costs in the case.

R.L.1910, § 6024.  Amended by Laws 1973, c. 138, § 1, emerg. eff. May 10, 1973; Laws 1975, c. 227, § 2, eff. Oct. 1, 1975; Laws 1983, c. 126, § 1, operative July 1, 1983; Laws 1985, c. 112, § 7, eff. Nov. 1, 1985; Laws 1993, c. 227, § 5, eff. July 1, 1993; Laws 1994, c. 229, § 1, eff. Sept. 1, 1994; Laws 2002, c. 460, § 17, eff. Nov. 1, 2002.

§22719.  Persons held as material witnesses to be informed of constitutional rights  Fees.

Whenever any person shall be taken into custody by any law enforcement officer to be held as a material witness in any criminal investigation or proceeding, he shall, if not sooner released, be taken before a judge of the district court without unnecessary delay and said judge of the district court shall immediately inform him of his constitutional rights including the reason he is being held in custody, his right to the aid of counsel in every stage of the proceedings, and of his right to be released from custody upon entering into a written undertaking in the manner provided by law. A witness who is held in custody pursuant to the provisions hereof shall be kept separately and apart from any person, or persons, being held in custody because of being accused of committing a crime.  A witness who desires aid of counsel and is unable to obtain aid of counsel by reason of poverty shall be by the court provided counsel at the expense of the court fund of the county.  During the time a witness is in custody he shall receive the witness fee provided by law for witnesses in criminal cases.

Laws 1970, c. 193, § 1, emerg. eff. April 13, 1970.  

§22-720.  Detainment of person as material witness.

A.  If a law enforcement officer has probable cause to believe that a person is a necessary and material witness to a felony and that there is probable cause to believe that the person would be unwilling to accept service of a subpoena or may otherwise refuse to appear in any criminal proceeding, the officer may detain the person as a material witness with or without an arrest warrant; provided, no person may be detained as a material witness to a crime for more than forty-eight (48) hours without being taken before a judge as required by Section 719 of Title 22 of the Oklahoma Statutes; and provided further, no person may be detained as a material witness to a crime who is a victim of such crime.

B.  At the time of the detainment, the law enforcement officer shall inform the person:

1.  Of the identity of the officer as a law enforcement officer; and

2.  That the person is being detained because the officer has probable cause to believe the person:

a. is a material witness to an identified felony, and

b. would be unwilling to accept service of a subpoena or may otherwise refuse to appear in any criminal proceeding.

C.  If a material witness is taken into custody pursuant to this section, the provisions of Section 719 of Title 22 of the Oklahoma Statutes shall apply.

Added by Laws 2004, c. 275, § 10, eff. July 1, 2004.

§22721.  Definitions.

"Witness" as used in this act shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

The word "state" shall include any territory of the United States and the District of Columbia.

The word "summons" shall include a subpoena, order or other notice requiring the appearance of a witness.

Laws 1949, p. 205, § 1.  

§22722.  Summoning witness in this state to testify in another state.

A.  If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.

B.  If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence, (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons.  In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

C.  If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken into custody and delivered to an officer of the requesting state.

D.  If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the greater of the sum authorized by the law of the state to which the witness must travel or the sum of fifteen cents ($0.15) a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and Twelve Dollars ($12.00) for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Added by Laws 1949, p. 205, § 2.  Amended by Laws 1994, c. 229, § 2, eff. Sept. 1, 1994.

§22723.  Witness from another state summoned to testify in this state.

A.  If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.  Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state.  This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

B.  A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

C.  If the witness is summoned to attend and testify in this state he shall be tendered, at the time he is ordered to appear, travel and expenses pursuant to Section 718 of this title for each day he is required to travel and attend as a witness.  A judge of a court of record in this state may approve travel and expenses pursuant to Section 718 of this title for witnesses who voluntarily appear and testify in a criminal prosecution or grand jury investigation upon proper affidavit and showing.

Laws 1949, p. 206, § 3; Laws 1975, c. 227, § 3, eff. Oct. 1, 1975; Laws 1980, c. 48, § 1, eff. July 1, 1980.  

§22724.  Exemption from arrest and service of process.

If a person comes into this state in obedience to a summons directing him to attend and testify in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

Laws 1949, p. 206, § 4.  

§22725.  Uniformity of interpretation.

This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

Laws 1949, p. 206, § 5.  

§22726.  Short title.

This act may be cited as "Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings".

Laws 1949, p. 206, § 6.  

§22727.  Constitutionality.

If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are declared to be severable.

Laws 1949, p. 206, § 8.  

§22728.  Short Title.

This act shall be known and may be cited as the "Oklahoma Uniform Act to Secure Rendition of Prisoners in Criminal Proceedings".

§22729.  Definitions.

As used in this act:

1.  "Penal institution" means a jail, prison, penitentiary, house of correction, or other place of penal detention or place where the prisoner is required to reside or report in lieu of penal detention, including, but not limited to house arrest, halfway houses, community or treatment centers;

2.  "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory of the United States;

3.  "Witness" means a person who is confined in a penal institution in a state and whose testimony is desired in another state by a grand jury or other criminal proceeding before a court.

§22730.  Certificate from another state to compel witness to appear and testify  Notice, order and hearings.

A.  A judge of a state court of record in another state, which by its laws has made provision for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify as follows:

1.  There is a criminal proceeding or investigation by a grand jury or other criminal proceeding pending in the court;

2.  A person who is confined in a penal institution in this state may be a material witness in the proceeding; and

3.  His presence will be required during a specified time.

B.  Upon presentation of the certificate to any judge having jurisdiction over the person confined and on notice to the attorney general, the judge in this state shall:

1.  Fix a time and place for a hearing; and

2.  Enter an order directing the person having custody of the prisoner to produce the prisoner at the hearing.

§22731.  Transfer order  Determinations necessary  Copy of certificate attached  Directions and prescriptions  Responsibilities of requesting jurisdiction.

A.  A judge may issue a transfer order if, at the hearing, the judge determines as follows:

1.  The witness may be material and necessary to the proceeding;

2.  His attendance and testimony are not adverse to the interest of this state or to the health or legal rights of the witness;

3.  The laws of the state in which he is requested to testify will give him protection from arrest and the service of civil and criminal process due to any act committed prior to his arrival in the state under the order; and

4.  The possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which he will be required to pass.

B.  If a judge issues an order under subsection A of this section, the judge shall attach to the order a copy of the certificate presented pursuant to Section 3 of this act.  The order shall:

1.  Direct the witness to attend and testify;

2.  Except as provided by subsection C of this section, direct the person having custody of the witness to produce him in the court where the criminal proceeding is pending or where the grand jury is sitting at a time and place specified in the order; and

3.  Prescribe such other conditions as the judge shall determine.

C.  The judge, in lieu of directing the person having custody of the witness to produce him in the requesting jurisdiction's court, may direct and require in the order as follows: 1.  An officer of the requesting jurisdiction to come to the Oklahoma penal institution in which the witness is confined to accept custody of the witness for physical transfer to the requesting jurisdiction;

2.  The requesting jurisdiction provide proper safeguards for his custody while in transit;

3.  The requesting jurisdiction be liable for and pay all expense incurred in producing and returning the witness, including but not limited to food, lodging, clothing, and medical care; and

4.  The requesting jurisdiction promptly deliver the witness back to the same or another Oklahoma penal institution as specified by the Department of Corrections at the conclusion of his testimony.

§22732.  Transfer order  Additional conditions  Expenses of return of witness  Effective date.

A.  An order to a witness and to a person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards for his custody, and reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness.

B.  The order may prescribe any other condition the judge determines to be proper or necessary.

C.  The judge shall not require prepayment of expenses if the judge directs and requires the requesting jurisdiction to accept custody of the witness at the penal institution of this state in which the witness is confined and to deliver the witness back to the same or another penal institution of this state as specified by the Oklahoma Department of Corrections at the conclusion of his testimony.

D.  An order does not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.

§22733.  Act inapplicable to certain persons.

This act does not apply to a person in this state who is confined due to mental illness or who is under sentence of death.

§22734.  Certificate from this state to another state to compel prisoner to appear and testify  Contents  Presentation  Notice to attorney general of other state.

A.  If a person confined in a penal institution in any other state may be a material witness in a criminal proceeding pending in a court of record or in a grand jury investigation in this state, a judge of the court may certify as follows:

1.  There is a grand jury or a criminal proceeding pending in this court;

2.  A person who is confined in a penal institution in the other state may be a material witness in the proceeding or investigation; and

3.  His presence will be required during a specified time.

B.  The judge of the court in this state shall:

1.  Present the certificate to a judge of a court of record in the other state having jurisdiction over the prisoner confined; and

2.  Give notice to the attorney general of the state in which the prisoner is confined, that the prisoner's presence will be required.

§22735.  Order directing compliance with terms and conditions of order from another state.

A judge of the court in this state may enter an order directing compliance with the terms and conditions of an order specified in a certificate pursuant to Section 3 of this act and entered by the judge of the state in which the witness is confined.

§22736.  Immunity from arrest and civil or criminal process.

If a witness from another state comes into or passes through this state under an order directing him to attend and testify in this or any other state, while in this state pursuant to the order, he shall not be subject to arrest or the service of civil or criminal process because of any act committed prior to his arrival in this state under the order.

§22737.  Construction of act.

This act shall be so construed as to effect its general purpose to make uniform the laws of those states which enact it.

§22741.  Overt act in conspiracy.

Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment or information, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment may be given in evidence.

R.L.1910, § 5883.  

§22742.  Accomplice, testimony of.

A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.

§22743.  False pretenses, evidence of.

Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.  But this section does not apply to prosecution for falsely representing or personating another, and in such assumed character, marrying or receiving money or property.

§22744.  Seduction, corroboration of prosecutrix.

Upon a trial for inveigling, enticing or taking away an unmarried female of previous chaste character, under the age of twentyfive (25) years, for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured unless she is corroborated by other evidence tending to connect the defendant with the commission of the offense.

R.L.1910, § 5886.  

§22745.  Murder, burden of proof in mitigation of.

Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

R.L.1910, § 5902.  

§22746.  Bigamy, proof on trial for.

Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place out of the state, proof of that fact accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.

R.L.1910, § 5903.  

§22747.  Forgery of bill or note of corporation or bank, proof on trial for.

Upon a trial for forgery any bill or note purporting to be a bill or note of an incorporated company or bank, or for passing or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of such bank or company by the charter or act of incorporation, but it may be proved by general reputation, and persons of skill are competent witnesses to prove that such bill or note is forged or counterfeited.

R.L.1910, § 5904.  

§22748.  Perjury in court, evidence as to.

In cases of perjury, where the perjury is charged to have been committed in a court, it shall be sufficient to show that the oath was administered by any officer of the court authorized so to do, or that the defendant testified and gave his testimony as under oath, or if the question be in doubt as to what particular officer administered the oath, it may be shown that it was administered by any officer authorized so to do.

R.L.1910, § 5909.  

§22749.  Sworn statements taken by district attorney or peace officer of persons having knowledge of criminal offense  Use.

A.  In the investigation of a criminal offense, the district attorney or any peace officer may take the sworn statement of any person having knowledge of such criminal offense.  Any person charged with a crime shall be entitled to a copy of any such sworn statement upon the same being obtained.

B.  If a witness in a criminal proceeding gives testimony upon a material issue of the case contradictory to his previous sworn statement, evidence may be introduced that such witness has previously made a statement under oath contradictory to such testimony.

Laws 1969, c. 224, § 1, emerg. eff. April 21, 1969.  

§22-750.  Renumbered as § 2412 of Title 12 by Laws 1992, c. 168, § 1, eff. Sept. 1, 1992.

§22-751.  Admission of findings - Laboratory and medical examiner's reports - Release of controlled dangerous substances - Compelled  attendance in court of report preparers.

A.  At any hearing prior to trial or at a forfeiture hearing:

1.  A report of the findings of the laboratory of the Oklahoma State Bureau of Investigation;

2.  The report of investigation or autopsy report of the medical examiner;

3.  A laboratory report from a forensic laboratory operated by the State of Oklahoma or any political subdivision thereof;

4.  A report from the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control as to the existence or status of any license or permit to sell, transfer, or possess precursor substances; or

5.  A report from the Department of Public Safety as to the handling and storage of evidence,

which has been made available to the accused by the office of the district attorney at least five (5) days prior to the hearing, with reference to all or any part of the evidence submitted, when certified as correct by the persons making the report shall be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence.  If a report is deemed relevant by the state or the accused, the court shall admit the report without the testimony of the person making the report, unless the court, pursuant to subsection C of this section, orders the person making the report to appear.  If the accused is not served with a report, by the district attorney, within five (5) days prior to a hearing, the accused may be allowed a continuance of the portion of the hearing to which the report is relevant, to allow at least five (5) days preparation subsequent to the district attorney's furnishing of the report.

B.  When any alleged controlled dangerous substance has been submitted to the laboratory of the Bureau for analysis, and such analysis shows that the submitted material is a controlled dangerous substance, the distribution of which constitutes a felony under the laws of this state, no portion of such substance shall be released to any other person or laboratory without an order of a district court.  The defendant shall additionally be required to submit to the court a procedure for transfer and analysis of the subject material to ensure the integrity of the sample and to prevent the material from being used in any illegal manner.

C.  For purposes of the medical examiner's report of investigation or autopsy report, or a laboratory report from a forensic laboratory operated by the State of Oklahoma or any political subdivision thereof or a report from the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control as to the existence or status of any license or permit to sell, transfer, or possess precursor substances:

1.  The court, upon motion of the state or the accused, shall order the attendance of any person preparing a report submitted as evidence in any hearing prior to trial or forfeiture hearing, when it appears there is a substantial likelihood that material evidence not contained in such report may be produced by the testimony of the person having prepared the report;

2.  The motion shall be filed and notice of the hearing on the motion to order the attendance of the Chief Medical Examiner, a medical examiner, consultant pathologist, or anyone under their supervision or control shall be given to the medical examiner's office.  The hearing shall be held and, if sustained, an order issued not less than five (5) days prior to the time when the testimony shall be required; and

3.  If within five (5) days prior to the hearing or during a hearing a motion is made pursuant to this subsection requiring a person having prepared a report to testify, the court may hear a report or other evidence but shall continue the hearing until such time notice of the motion and hearing is given to the medical examiner's office, the motion is heard, and, if sustained, testimony ordered can be given.

Added by Laws 1976, c. 259, § 15, operative July 1, 1976.  Amended by Laws 1988, c. 109, § 26, eff. Nov. 1, 1988; Laws 1991, c. 228, § 1, emerg. eff. May 23, 1991; Laws 1992, c. 355, § 3; Laws 1996, c. 199, § 2, eff. Nov. 1, 1996; Laws 1999, c. 55, § 1, emerg. eff. April 5, 1999; Laws 2001, c. 99, § 1, eff. July 1, 2001; Laws 2004, c. 130, § 5, emerg. eff. April 20, 2004.

§22-751.1.  DNA profile - Use as evidence - Notification of defendant.

A.  As used in this act:

1.  "Deoxyribonucleic Acid (DNA)" means the molecules in all cellular forms that contain genetic information in a patterned chemical structure of each individual; and

2.  "DNA Profile" means an analysis of DNA resulting in the identification of an individual's patterned chemical structure of genetic information.

B.  1.  At any hearing prior to trial or at a forfeiture hearing, a report of the findings of a laboratory report from a forensic laboratory operated by the State of Oklahoma or any political subdivision thereof regarding DNA Profile, which has been made available to the accused by the office of the district attorney at least five (5) days prior to the hearing, when certified as correct by the persons making the report, shall be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence.  If a report is deemed relevant by the state or the accused, the court shall admit the report without the testimony of the person making the report, unless the court, pursuant to this section, orders the person making the report to appear.  If the accused is not served with a report, by the district attorney, at least five (5) days prior to a hearing, the accused may be allowed a continuance of the portion of the hearing to which the report is relevant, to allow at least five (5) days' preparation subsequent to the furnishing of the report by the district attorney.

2.  The court, upon motion of the state or accused, shall order the attendance of any person preparing such a report submitted as evidence in any hearing prior to trial or forfeiture hearing, when it appears there is a substantial likelihood that material evidence not contained in the report may be produced by the testimony of the person having prepared the report.  The motion shall be filed and notice given of the hearing on the motion to order the attendance of the person having prepared the report.  A hearing shall be held and, if the motion is sustained, an order issued giving not less than five (5) days' prior notice to the time when the testimony shall be required.  If, within five (5) days prior to the hearing or during a hearing, a motion is made pursuant to this subsection requiring a person having prepared a report to testify, the court may hear the report or other evidence but shall continue the hearing until such time notice of the motion and hearing is given to the person having prepared the report, the motion is heard, and, if sustained, testimony ordered can be given.

C.  If the state decides to offer evidence of a DNA profile in any trial on the merits, the state shall:

1.  At least fifteen (15) days before the criminal proceeding, notify in writing the defendant or the defendant's attorney and mail, deliver, or make available to the defendant or the defendant's attorney a copy of any report or statement to be introduced; and

2.  Upon written demand of the defendant filed at least five (5) days before the trial on the merits, require the presence of any person in the chain of custody as a prosecution witness.  Provided, however, failure to make such demand shall not waive any rights of the defendant nor relieve the prosecution of the burden of proof.

Added by Laws 1991, c. 227, § 1, emerg. eff. May 23, 1991.  Amended by Laws 2001, c. 88, § 1, eff. Nov. 1, 2001.

§22-752.  Repealed by Laws 1993, c. 197, § 4, eff. Sept. 1, 1993.

§22-753.  Repealed by Laws 2003, c. 405, § 11, eff. Nov. 1, 2003.

§22-761.  Conditional examination of witnesses.

When a defendant has been held to answer a charge for a public offense, the defendant or the State of Oklahoma may either before or after indictment or information, have witnesses examined conditionally on his behalf as prescribed in this article, and not otherwise.

R.L. 1910, § 6025.  Amended by Laws 1994, c. 292, § 5, eff. Sept. 1, 1994.

§22762.  Conditional examinations in certain cases.

When a material witness in any criminal case is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant or the State of Oklahoma may apply for an order that the witness be examined conditionally.

Amended by Laws 1983, c. 126, § 2, operative July 1, 1983.  

§22-762.1.  Order for conditional examination of witnesses.

Where the magistrate terminated the preliminary hearing pursuant to Section 258 of Title 21 of the Oklahoma Statutes and a witness subsequently refuses an interview with counsel for the opposing party, the defendant or the State of Oklahoma may apply for an order that the witness be examined conditionally.

Added by Laws 1994, c. 292, § 6, eff. Sept. 1, 1994.

§22-763.  Affidavit on application for conditional examination.

The application must be made upon affidavit stating:

First.  The nature of the offense charged.

Second.  The state of the proceedings in the action.

Third.  The name and residence of the witness, and that his testimony is material to the defense of the action.

Fourth.  That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial, or that the magistrate terminated the preliminary hearing pursuant to Section 258 of this title and that the witness refuses to grant an interview to counsel regarding the material issues for trial.

R.L. 1910, § 6027.  Amended by Laws 1994, c. 292, § 7, eff. Sept. 1, 1994.

§22-764.  Application made to court or judge - Notice.

The application may be made to the court or to a judge thereof, and must be made upon five (5) days notice to the counsel for the opposing party, if any.

R.L. 1910, § 6028.  Amended by Laws 1994, c. 292, § 8, eff. Sept. 1, 1994.

§22-765.  Order for examination - Testimony by alternative method.

If the court or judge is satisfied that the examination of the witness is necessary an order must be made that the witness be examined conditionally at a specified time and place, and that a copy of the order be served on counsel for the opposing party within a specified time before that fixed for the examination.  If the witness is a child under thirteen (13) years of age or a vulnerable adult as defined in Section 10-103 of Title 43A of the Oklahoma Statutes, the court can allow the witness to testify through an alternative method pursuant to the provisions of the Uniform Child Witness Testimony by Alternative Methods Act or Section 2611.2 of Title 12 of the Oklahoma Statutes.

R.L. 1910, § 6029.  Amended by Laws 1994, c. 292, § 9, eff. Sept. 1, 1994; Laws 2004, c. 445, § 3, emerg. eff. June 4, 2004.

§22-766.  Examination before magistrate or certified court reporter.

The order must direct that the examination be taken before a magistrate named therein or upon agreement of both the state and defendant before a certified court reporter.  The defendant must be present for the examination to proceed, unless the presence of the defendant is waived by both parties.

R.L. 1910, § 6030.  Amended by Laws 1994, c. 292, § 10, eff. Sept. 1, 1994.

§22-767.  When examination shall not proceed.

If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate by affidavit or other proof, or on examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on trial, or that the preliminary hearing was not terminated pursuant to Section 258 of this title and that the witness is not refusing to grant an interview to counsel, the examination cannot take place; otherwise, it must proceed.

R.L. 1910, § 6031.  Amended by Laws 1994, c. 292, § 11, eff. Sept. 1, 1994.

§22768.  Attendance of witness enforced, how.

The attendance of the witness may be enforced by subpoena issued by the magistrate before whom the examination is to be taken, or from the court where the trial is to be had.

R.L.1910, § 6032.  

§22769.  Taking and authentication of testimony.

The testimony given by the witness must be reduced to writing. The magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand, and for that purpose he may appoint a shorthand reporter. The deposition or testimony of the witness must be authenticated in the following form:

1.  It must state the name of the witness, his place of residence and his business or profession.

2.  It must contain the questions put to the witness and his answers thereto, each answer being distinctly read to him as it is taken down, and being corrected or added to until it conforms to what he declares is the truth; except in cases where the testimony is taken down in shorthand, the answer or answers of the witness need not be read to him.

3.  If the witness declines answering a question, that fact with the ground on which the answer was declined must be stated.

4.  The deposition must be signed by the witness, or if he refuse to sign it, his reason for refusing must be stated in writing as he gives it; except in cases where the deposition is taken down in shorthand, it must not be signed by the witness.

5.  It must be signed and certified by the magistrate when reduced to writing by him or under his direction; and when taken down in shorthand, the manuscript of the reporter, appointed as aforesaid, when written out in longhand writing, and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings.  The reporter shall within five (5) days after the close of such examination transcribe into longhand writing his said shorthand notes, and certify and deliver the same to the magistrate, who shall also certify the same and transmit such testimony and proceedings, carefully sealed up, to the clerk of the court in which the action is pending or may come for trial.

R.L.1910, § 6033.  

§22770.  Deposition read in evidence, when  Objections to questions therein.

The deposition or certified copy thereof may be read in evidence by either party on the trial upon its appearing that the witness is unable to attend by reason of his death, insanity, sickness, or infirmity, or of his continued absence from the state. Upon reading the depositions in evidence, the same objections may be taken to a question or answer contained therein as if the witness had been examined orally in court.

R.L.1910, § 6034.  

§22771.  Prisoner, deposition of  Oath.

When a material witness for a defendant under a criminal charge is a prisoner in a state prison or in a county jail of a county other than that in which the defendant is to be tried, his deposition may be taken on behalf of the defendant in the manner provided for in the case of a witness who is sick; and the foregoing provisions of this article, so far as they are applicable, govern in the application for, and in the taking and use of such depositions, such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the witness is confined in a state prison, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of control of the prison, whose duty it shall be to act without compensation.  Every officer before whom testimony shall be taken by virtue hereof, shall have authority to administer, and shall administer an oath to the witness, that his testimony shall be the truth, the whole truth and nothing but the truth.

R.L.1910, § 6035.  

§22781.  Witness out of state.

When an issue of fact is joined upon an indictment or information the defendant may have any material witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.

R.L.1910, § 6036.  

§22782.  Nonresident witness  Application for commission to take testimony.

When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission to be issued under the seal of the court, and the signature of the clerk, directed to some party designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, and to take and certify the deposition of the witness and return it according to the instructions given with the commission.

R.L.1910, § 6037.  

§22783.  Affidavit on application.

Application must be made upon affidavit stating:

1.  The nature of the offense charged.

2.  The state of the proceedings in the action and that an issue of the fact has been joined therein.

3.  The name of the witness and that his testimony is material to the defense of the action.

4.  That the witness resides out of the state.

R.L.1910, § 6038.  

§22784.  Notice of application.

The application may be made to the court or judge himself, and must be upon five (5) days' notice to the district attorney.

R.L.1910, § 6039.  

§22785.  Issuance of commission  Continuance.

If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.

R.L.1910, § 6040.  

§22786.  Interrogatories and crossinterrogatories.

When the commission is ordered, the defendant must serve upon the district attorney, without delay, a copy of the interrogatories to be annexed thereto, with three (3) days notice of the time at which they will be presented to the court or judge.  The district attorney may in like manner serve upon the defendant or his counsel crossinterrogatories, to be annexed to the commission, with like notice.  In the interrogatories, either party may insert any question pertinent to the issue.  When the interrogatories and crossinterrogatories are presented to the court or judge, according to the notice, the court or judge must modify the questions, so as to conform them to the rules of evidence, and must endorse upon them his alterations, and annex them to the commission.

R.L.1910, § 6041.  

§22787.  Manner of return.

Unless the parties otherwise consent by an endorsement upon the commission, the court or judge must endorse thereon the direction and manner in which it must be returned, and may in his discretion direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the action is pending, designating his name, and the place where his office is kept.

R.L.1910, § 6042.  

§22788.  Execution of commission.

The commissioner, unless otherwise specially directed, may execute the commission as follows:

1.  He must administer an oath to the witness that his answers given to the interrogatories shall be the truth, the whole truth and nothing but the truth.

2.  He must cause the examination of the witness to be reduced to writing and subscribed by him.

3.  He must write the answers of the witness as nearly as possible in the language in which he gives them, and read to him each answer so taken down, and correct or add to it until it conforms to what he declares is the truth.

4.  If the witness declines to answer a question, that fact, with the reason assigned by him for declining, must be stated.

5.  If any papers or documents are produced before him, and proved by the witness, they, or copies of them, must be annexed to the deposition, subscribed by the witness, and certified by the commissioner.

6.  The commissioner must subscribe his name to each sheet of the deposition, with the papers and documents proved by the witness, or copies thereof, to the commissioner, and must close it up under seal and address it as directed by the endorsement thereon.

7.  If there be direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post office.  If any other direction be made by the written consent of the parties, or by the court or judge, to the commissioner as to its return, the commissioner must comply with the directions.  A copy of this section must be annexed to the commission.

R.L.1910, § 6043.  

§22789.  Delivery of returned commission by agent.

If the commission and return be delivered by the commissioner to an agent, he must deliver the same to the clerk to whom it is directed, or to the judge of the court in which the action is pending, by whom it may be received and opened upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it.

R.L.1910, § 6044.  

§22790.  Delivery when agent is incapacitated.

If the agent is dead, or from sickness or other cause is unable personally to deliver the commission and return as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent, that the agent is dead, or, from sickness or other casualty unable to deliver it, and it has not been opened or altered since the person making the affidavit received it, and that he believes it has not been opened or altered since it came from the hands of the commissioner.

R.L.1910, § 6045.  

§22791.  Filing commission and return.

The clerk or judge receiving and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment or information is pending.  If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post office, and open and file it in his office, where it must remain unless otherwise directed by the court.

R.L.1910, § 6046.  

§22792.  Commission and return open to inspection.

The commission and return must at all times be open to the inspection of all persons, who must be furnished a copy of the same, or any part thereof, on payment of his fees.

R.L.1910, § 6047.  

§22793.  Reading deposition on trial.

Depositions taken under a commission may be read in evidence by either party on the trial upon it being shown that the witness is unable to attend from any cause whatever, and the same objections may be taken to a question in the interrogatories, or to the answers in the deposition, as if the witness had been examined orally in court.

R.L.1910, § 6048. R.L.1910, § 6048.  

§22-811.  Repealed by Laws 1999, 1st Ex.Sess., c. 6, § 3, eff. Nov. 1, 1999.

§22-812.  Repealed by Laws 1999, 1st Ex.Sess., c. 6, § 3, eff. Nov. 1, 1999.

§22-812.1.  Right to speedy trial - Time limits.

A.  If any person charged with a crime and held in jail solely by reason thereof is not brought to trial within one (1) year after arrest, the court shall set the case for immediate review as provided in Section 2 of this act, to determine if the right of the accused to a speedy trial is being protected.

B.  If any person charged with a felony crime who is held to answer on an appearance bond is not brought to trial within eighteen (18) months after arrest, the court shall set the case for immediate review as provided in Section 2 of this act, to determine if the right of the accused to a speedy trial is being protected.

C.  In the event a mistrial is declared or a conviction is reversed on appeal, the time limitations provided for in this section shall commence to run from the date the mistrial is declared or the date of the mandate of the Court of Criminal Appeals.

Added by Laws 1999, 1st Ex.Sess., c. 6, § 1, eff. Nov. 1, 1999.

§22-812.2.  Right to speedy trial - Review process.

A.  Whenever the court finds that a case should be reviewed to determine if the right of an accused to a speedy trial is being protected, the court shall:

1.  Issue notice to the District Attorney, the accused, and the attorney for the accused that the case will be reviewed by the court at a date and time which is not less than ten (10) days nor more than twenty (20) days from the date of the notice.  Each party shall have the opportunity to present evidence or legal authority in support of its position; and

2.  Take evidence from both parties regarding the appropriateness of the cause for the delay.  At the hearing, the court shall consider whether the delay has occurred for any of the following reasons:

a. the delay is the result of the application of the accused or an attorney on behalf of the accused,

b. the delay is the result of the fault of the accused or the attorney for the accused,

c. the accused is incompetent to stand trial,

d. a proceeding to determine the competency of the accused to stand trial is pending and a determination cannot be completed within the time limitations fixed for trial,

e. there is material evidence or a material witness which is unavailable and that reasonable efforts have been made to procure such evidence or witness, and there are reasonable grounds to believe that such evidence or witness can be obtained and trial commenced within a reasonable time,

f. the accused is charged as a codefendant or coconspirator and the court has determined that the codefendants or coconspirators must be tried before separate juries taken from separate jury panels,

g. the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial,

h. the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case, and

i. due to other reasonable grounds the court does not have sufficient time to commence the trial of the case within the time limit fixed for trial.

B.  If, after hearing all the evidence and the legal arguments properly submitted, the court finds by a preponderance of the evidence that the state is not proceeding with due diligence, that none of the exceptions set out in paragraph 2 of subsection A of this section justify additional delay and the right of the accused to a speedy trial has been violated, the court shall dismiss the case.

C.  If a preliminary hearing has been held, the case may be refiled, unless the applicable statute of limitations has expired, upon a showing of newly discovered evidence which could not have been discovered prior to trial.

D.  If a preliminary hearing has not been held, the case may be refiled, upon good cause shown, unless any applicable statute of limitations has expired.

E.  If, after hearing all the evidence and the legal arguments properly submitted, the court finds that the right of the accused to a speedy trial has not been violated, the court shall set the case for review in four (4) months.  If the case is still pending after the four-month period, the court shall conduct another review.  The four-month review of pending cases shall be a continuing responsibility of the court until final disposition of the case.

Added by Laws 1999, 1st Ex.Sess., c. 6, § 2, eff. Nov. 1, 1999.

§22-813.  Repealed by Laws 1999, 1st Ex.Sess., c. 6, § 3, eff. Nov. 1, 1999.

§22814.  Effect of dismissing action.

If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.

R.L.1910, § 6098.  

§22815.  Dismissal by court or on district attorney's application.

The court may either of its own motion or upon the application of the district 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.

R.L.1910, § 6099.  

§22816.  Nolle prosequi abolished.

The entry of a nolle prosequi is abolished, and the district attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in the last section.

R.L.1910, § 6100.  

§22817.  Dismissal not a bar to another prosecution.

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. R.L.1910, § 6101. R.L.1910, § 6101.  

§22-831.  Order of trial proceedings.

The jury having been impaneled and sworn, the trial must proceed in the following order:

1.  If the indictment or information is for a felony, the clerk or district attorney must read it, and state the plea of the defendant to the jury.  In other cases this formality may be dispensed with.

2.  The district attorney, or other counsel for the state, must open the case and offer the evidence in support of the indictment or information.

3.  The defendant or defendant's counsel shall give an opening statement immediately after the opening statement of the district attorney unless the defendant affirmatively reserves the opening statement until the district attorney has rested the state's case.  The defense may offer evidence after the close of the state's case.

4.  The parties may then, respectively, offer rebutting testimony only, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case.

5.  When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions.  If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be.  Instructions refused shall be marked in writing by the judge, if modified, modification shall be shown in the instruction.  When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instructions to the jury.

6.  Thereupon, unless the case is submitted to the jury without argument, the counsel for the state shall commence, and the defendant or his counsel shall follow, then the counsel for the state shall conclude the argument to the jury.  During the argument the attorneys shall be permitted to read and comment upon the instructions as applied to the evidence given, but shall not argue to the jury the correctness or incorrectness of the propositions of law therein contained.  The court may permit one or more counsel to address the jury on the same side, and may arrange the order in which they shall speak, but shall not without the consent of the attorneys limit the time of their arguments.  When the arguments are concluded, if the court be of the opinion that the jury might be misled by the arguments of counsel, he may to prevent the same further instruct the jury.  All instructions given shall be in writing unless waived by both parties, and shall be filed and become a part of the record in the case.

R.L.1910, § 5870.  Amended by Laws 2000, c. 262, § 1, eff. July 1, 2000.

§22832.  Court to decide the law.

The court must decide all questions of law which arise in the course of the trial.

R.L.1910, § 5871.  

§22833.  Province of jury in libel case.

On the trial of an indictment or information for libel, the jury shall determine the facts under the instructions of the court as in other cases.

R.L.1910, § 5872.  

§22834.  Jury limited to questions of fact.

On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.

R.L.1910, § 5873.  

§22835.  Restriction of argument  Number of counsel.

If the indictment or information is for an offense punishable with death, three counsel on each side may argue the case to the jury.  If it is for any other offense the court may, in its discretion, restrict the argument to one counsel on each side.

R.L.1910, § 5874.  

§22836.  Defendant presumed innocent  Reasonable doubt of guilt requires acquittal.

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.

§22837.  Doubt as to degree of guilt.

When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degree only.

R.L.1910, § 5877.  

§22839.  Discharge of defendant that he may testify for state.

When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the district attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.

R.L.1910, § 5879.  

§22840.  Discharge of defendant that he may testify for codefendant.

When two or more persons are included in the same indictment or information, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be compelled to be a witness for his codefendant, submit its opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid.

R.L.1910, § 5880.  

§22841.  Higher offense than charged, existence of  Jury discharged.

If it appear by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment or information, the court may direct the jury to be discharged, and all proceedings on the indictment or information to be suspended, and may order the defendant to be committed or continued on, or admitted to bail, to answer any new indictment or information which may be filed against him for the higher offense.

R.L.1910, § 5887.  

§22842.  Discharge of jury not a former acquittal.

If an indictment or information for the higher offense is filed within a year next thereafter, he must be tried thereon, and a plea of former acquittal to such last prosecution is not sustained by the fact of the discharge of the jury on the first indictment or information.

R.L.1910, § 5888.  

§22843.  Trial on original indictment, when.

If a new indictment or information is not filed for a higher offense within a year, as aforesaid, the court shall again proceed to try the defendant on the original indictment or information.

R.L.1910, § 5889.  

§22844.  Jury may be discharged, when.

The court may direct the jury to be discharged where it appears that it has not jurisdiction of the offense, or that the facts as charged in the indictment or information do not constitute an offense punishable by law.

R.L.1910, § 5890.  

§22845.  Disposition of prisoner on discharge of jury.

If the jury is discharged because the court has not jurisdiction of the offense charged in the indictment or information, and it appears that it was committed out of the jurisdiction of this state, the court may order the defendant to be discharged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the district attorney to the chief executive officer of the state, territory or district where the offense was committed.

R.L.1910, § 5891.  

§22846.  Disposition of prisoner where jurisdiction in another county.

If the offense was committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable to await a warrant from the proper county for his arrest, or if the offense be a misdemeanor only, it may admit him to bail in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, and to be mentioned in the undertaking; and the clerk must forthwith transmit a certified copy of the indictment or information, and all the papers in the action filed with him, to the district attorney of the proper county, the expense of which transmission is chargeable to the county.

R.L.1910, § 5892.  

§22847.  Disposition of prisoner where defendant not arrested on warrant from proper county.

If the defendant is not arrested on a warrant from the proper county, he must be discharged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be, and the sureties in the undertaking as mentioned in the last section, must be discharged.

R.L.1910, § 5893.  

§22848.  Disposition of prisoner  Proceedings if arrested.

If he is arrested, the same proceedings must be had thereon as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

R.L.1910, § 5894.  

§22849.  Duty of court where no offense charged.

If the jury be discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged therefrom, or, if admitted to bail, that the bail be exonerated, or if he have deposited money instead of bail, that the money deposited be refunded to him unless in its opinion a new indictment or information can be framed, upon which the defendant can be legally convicted, in which case it may direct that the case be resubmitted to the same or another grand jury, or a new information filed.

R.L.1910, § 5895.  

§22850.  Court may advise jury to acquit.

If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant.  But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.

R.L.1910, § 5896. R.L.1910, § 5896.  

§22851.  Jury may view place  Custody of sworn officer.

When, in the opinion of the court, it is proper that the jury should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.

R.L.1910, § 5897.  

§22852.  Juror must declare knowledge of case.

If a juror have any personal knowledge respecting a fact in controversy in a cause he must declare it in open court during the trial.  If, during the retirement of a jury, a juror declare a fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court.  In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties.

R.L.1910, § 5898.  

§22853.  Custody and conduct of jury before submission  Separation  Sworn officer.

The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers.  The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.  Such officer or officers having once been duly sworn, it is not necessary that they be resworn at each recess or adjournment.  An admonition to the officer and the jury shall be sufficient.

§22-853.1.  Jurors - Protective orders.

The court, for good cause shown, upon motion of either party or any affected person or upon its own initiative, may issue a protective order for a stated period regulating disclosure of the identity and the business or residential address of any prospective or sworn juror to any person or persons, other than to counsel for either party.  Such good cause shall exist in civil or criminal proceedings where the court determines that there is a likelihood of bribery, jury tampering, or of physical injury or harassment of the juror.

Added by Laws 1991, c. 33, § 1, eff. Sept. 1, 1991.

§22854.  Court must admonish jury as to conduct.

The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves or with any one else on any subject connected with the trial, or to form or express any opinion thereon, until the case is finally submitted to them.

R.L.1910, § 5900.  

§22855.  Sickness or death of juror  New juror sworn.

If, before the conclusion of a trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged.  In that case or in the event of the death of a juror a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards impaneled.

§22-856.  Requisites of charge of court - Presentation of written charge - Request to charge - Endorsement of disposition on charge presented - Partial refusal.

In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact.  Either party may present to the court any written charge and request that it be given.  If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must endorse or sign its decision.  If part of any written charge be given and part refused the court must distinguish, showing by the endorsement or answer what part of each charge was given and what part refused.

R.L. 1910, § 5905.

§22857.  Jury after the charge.

After hearing the charge, the jury may either decide in court, or may retire for deliberation.  If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.

R.L. 1910, § 5906.  Amended by Laws 1997, c. 133, § 17, eff. July 1, 1999; Laws 1998, 1st Ex.Sess., c. 2, § 13, emerg. eff. June 19, 1998; Laws 1999, 1st Ex.Sess., c. 5, § 8, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 17 from July 1, 1998, to July 1, 1999.

§22858.  Defendant admitted to bail may be committed during trial.

When a defendant who has given bail appears for trial, the court may, in its discretion, at any time after his appearance for trial order him to be committed to the custody of the proper officer of the county to abide the judgment or further order of the court, and he must be committed and held in custody accordingly.

R.L.1910, § 5907.  

§22859.  Substitute for district attorney failing or unable to attend trial or disqualified.

If the district attorney fails, or is unable to attend at the trial or is disqualified, the court must appoint some attorney at law to perform the duties of the district attorney on such trial.

R.L.1910, § 5908.  

§22-860.  Repealed by Laws 1998, c. 133, § 603, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 603 from July 1, 1998, to July 1, 1999.

§22-860.1.  Second or subsequent offenses - Trial procedure.

In all cases in which the defendant is prosecuted for a second or subsequent offense, except in those cases in which former conviction is an element of the offense, the procedure shall be as follows:

1.  The trial shall proceed initially as though the offense charged was the first offense; when the indictment or information is read all reference to prior offenses shall be omitted; during the trial of the case no reference shall be made nor evidence received of prior offenses except as permitted by the rules of evidence; the judge shall instruct the jury only on the offense charged; the jury shall be further instructed to determine only the guilt or innocence on the offense charged, and that punishment at this time shall not be determined by the jury; and

2. If the verdict be guilty of the offense charged, that portion of the indictment or information relating to prior offenses shall be read to the jury and evidence of prior offenses shall be received. The court shall then instruct the jury on the law relating to second and subsequent offenses, and the jury shall then retire to determine the fact of former conviction, and the punishment, as in other cases.

Added by Laws 1999, 1st Ex.Sess., c. 5, § 438, eff. July 1, 1999.

§22861.  Formal exceptions to rulings or orders unnecessary.

Formal exceptions to rulings or orders of the court in criminal proceedings shall not be necessary but for all purposes for which an exception has heretofore been necessary at the trial of a cause it shall be sufficient that a party, at the time the ruling or order of the court has been made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court with his general grounds therefor.

Laws 1971, c. 144, § 1, eff. Oct. 1, 1971.  

§22891.  Jury room  Expenses of providing, a county charge.

A room must be provided by the board of commissioners of a county for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the commissioners neglect, the court may order the sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.

R.L.1910; § 5910. R.L.1910, § 5912.  

§22893.  Jury may have written instructions, forms of verdict and documents injury room  Copies of public or private documents.

On retiring for deliberation the jury may take with them the written instructions given by the court; the forms of verdict approved by the court, and all papers which have been received as evidence in the cause, except that they shall take copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.

R.L.1910, § 5912.  

§22894.  Jury brought into court for information  Presence of, or notice to, parties.

After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court.  Upon their being brought into court, the information required must be given in the presence of, or after notice to the district attorney and the defendant or his counsel, or after they have been called.

§22895.  Illness of juror after retirement  Accident or cause preventing keeping together  Discharge.

If, after the retirement of the jury, one of them become so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be discharged.

R.L.1910, § 5914. R.L.1910, § 5914.  

§22896.  Discharge after agreement on verdict or showing of inability to agree.

Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree.

R.L.1910, § 5915.  

§22897.  Retrial after discharge at same or other term.

In all cases where a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment or information during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct.

R.L.1910, § 5916.  

§22898.  Court during jury's retirement  Sealed verdicts  Final adjournment for term discharges jury.

While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged.  If the jury agree on a verdict during a temporary adjournment or recess of the court, they may, upon the direction of the court, sign the verdict by their foreman, securely seal the same in an envelope, and deliver the same to the foreman, when they may separate until the next convening of the court, at which time they shall reassemble in the jury room and return their verdict in open court, when the same proceedings shall be had as in case of other verdicts.  A final adjournment of the court for the term discharges the jury.

R.L.1910, § 5917.  

§22911.  Return of jury into court upon agreement  Discharge on failure of some jurors to appear.

When the jury have agreed upon their verdict, they may be conducted into court by the officer having them in charge.  Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict.  In that case the cause must be again tried, at the same or another term.

R.L.1910, § 5918.  

§22912.  Presence of defendant required in felony cases when verdict received  Discretionary in misdemeanor cases.

If the indictment or information is for a felony, the defendant must, before the verdict is received, appear in person.  If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence.

R.L.1910, § 5919.  

§22913.  Proceedings when jury appear.

When the jury appear, they must be asked, by the court or the clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

R.L.1910, § 5920.  

§22914.  Form of verdict.

A general verdict upon a plea of not guilty, is either "guilty", or "not guilty", which imports a conviction or acquittal of the offense charged.  Upon a plea of a former conviction or acquittal of the same offense, it is either "for the state", or "for the defendant". When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be "not guilty by reason of insanity".   When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be "not guilty by reason of variance between charge and proof".

§22915.  Degree of crime must be found.

Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.

R.L.1910, § 5922.  

§22916.  Included offense or attempt may be found.

The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.

R.L.1910, § 5923.  

§22917.  Several defendants  Verdict as to part  Retrial as to defendants not agreed on.

On an indictment or information against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury.

R.L.1910, § 5924.  

§22918.  Jury may reconsider verdict of conviction for mistake of law  Return of same verdict.

When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered.  But when there is a verdict of acquittal, the court cannot require the jury to reconsider it.

R.L.1910, § 5925.  

§22919.  Informal verdict to be reconsidered.

If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.

R.L.1910, § 5926.  

§22920.  Judgment when jury persist in informal verdict.

If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal.  But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue, or judgment be given against him on a special verdict.

R.L.1910, § 5927.  

§22921.  Polling jury.

When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

R.L.1910, § 5928.  

§22922.  Recording and reading verdict  Disagreement of jurors entered upon minutes  Discharge if no disagreement.

When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and the judge or the clerk must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.

Amended by Laws 1985, c. 119, § 1, eff. Nov. 1, 1985.  

§22923.  Defendant discharged on acquittal  Variance resulting in acquittal may authorize new charges.

If a judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as judgment is given, except that when the acquittal is for a variance between the proof and the indictment or information which may be obviated by a new indictment or information the court may order his detention to the end that a new indictment or information may be preferred in the same manner and with like effect as provided in cases where the jury is discharged.

R.L.1910, § 5930.  

§22924.  Commitment upon conviction.

If a general verdict is rendered against the defendant he must be remanded if in custody, or if on bail he may be committed to the proper officer of the county to await the judgment of the court upon the verdict.  When committed his bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant.

R.L.1910, § 5931.  

§22-925.  Claim of insanity - Duty of court and jury - Commitment to institution.

When it is contended on behalf of the defendant in any criminal prosecution that such defendant is at the time of the trial a person who is impaired by reason of mental retardation, a mentally ill person, an insane person, or a person of unsound mind, the court shall submit to the jury a proper form of verdict, and if the jury finds the defendant not guilty on account of such insanity, mental illness, or unsoundness of mind, they shall so state in their verdict, and the court shall thereupon order the defendant committed to the state hospital for the mentally ill, or other state institution provided for the care and treatment of cases such as the one before the court, until the sanity and soundness of mind of the defendant be judicially determined, and such person be discharged from the institution according to law.

R.L. 1910, § 5932.  Amended by Laws 1998, c. 246, § 14, eff. Nov. 1, 1998.

§22-926.  Repealed by Laws 1998, c. 133, § 603, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 603 from July 1, 1998, to July 1, 1999.

§22-926.1.  Assessment of punishment by jury.

In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.

Added by Laws 1999, 1st Ex.Sess., c. 5, § 439, eff. July 1, 1999.

§22-927.  Repealed by Laws 1998, c. 133, § 603, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 603 from July 1, 1998, to July 1, 1999.

§22-927.1.  Punishment assessed by court.

Where the jury finds a verdict of guilty, and fails to agree on the punishment to be inflicted, or does not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.

Added by Laws 1999, 1st Ex.Sess., c. 5, § 440, eff. July 1, 1999.

§22-928.  Repealed by Laws 1998, c. 133, § 603, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 603 from July 1, 1998, to July 1, 1999.

§22-928.1.  Excess punishment to be disregarded by court.

If the jury assesses a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict the defendant, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.

Added by Laws 1999, 1st Ex.Sess., c. 5, § 441, eff. July 1, 1999.

§22-929.  Remand for vacation of sentence - New sentencing proceeding - Construction of section.

A.  Upon any appeal of a conviction by the defendant in a noncapital criminal case, the appellate court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence rendered and remand the case to the trial court in the jurisdiction in which the defendant was originally sentenced for resentencing.  No error in the sentencing proceeding shall result in the reversal of the conviction in a criminal case unless the error directly affected the determination of guilt.

B.  When a criminal case is remanded for vacation of a sentence, the court may:

1.  Set the case for a nonjury sentencing proceeding; or

2.  If the defendant or the prosecutor so requests in writing, impanel a new sentencing jury.

C.  If a written request for a jury trial is filed within twenty (20) days of the date of the appellate court order, the trial court shall impanel a new jury for the purpose of conducting a new sentencing proceeding.

1.  All exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding.  Additional relevant evidence may be admitted including testimony of witnesses who testified at the previous trial.

2.  The provisions of this section are procedural and shall apply retroactively to any defendant sentenced in this state.

D.  This section shall not be construed to amend or be in conflict with the provisions of Section 701.10 or 701.10a of Title 21 of the Oklahoma Statutes relating to sentencing and resentencing in death penalty cases; Section 438 of this act relating to the trial procedure for defendants prosecuted for second or subsequent offense; or the provisions of Sections 439 and 440 of this act relating to assessment of punishment in the original trial proceedings.

Added by Laws 1990, c. 261, § 1, emerg. eff. May 24, 1990.  Amended by Laws 1997, c. 133, § 18, eff. July 1, 1999; Laws 1999, 1st Ex.Sess., c. 5, § 9, eff. July 1, 1999.

NOTE:  Laws 1998, 1st Ex.Sess., c. 2, § 23 amended the effective date of Laws 1997, c. 133, § 18 from July 1, 1998, to July 1, 1999.

§22951.  New trial defined  Proceedings on new trial  Former verdict no bar  Capital cases.