OKC Criminal Defense & DUI Attorneys
OKC Criminal Defense & DUI Attorneys

Can The State Prove You Guilty On a DUI (or APC) Charge? Check Out This Info On Elements & Defenses.

Can the Prosecution Prove You Guilty?  Or is There a Defense that Will Help Your Case?

If you've been charged with a crime, the Prosecution has the burden to prove you guilty.  If they don't have enough evidence, or the right kind of evidence, they may not be able to prove you guilty!

Elements of a Crime

All crimes have certain "Elements" that must be met in order for the prosecution to be able to prove you guilty.  If we can prevent them from being able to prove even one element, you are going to have a much better chance of getting the outcome you want!

So what is an Element of a crime?  The best way to explain it is to just show the elements for Driving Under the Influence (DUI).  Elements are different for every crime. For example, the elements for Actual Physical Control (APC) are slightly different than the elements for DUI, and the elements for DUI With an Accident will obviously involve an element of being involved in an accident.

For illustration purposes, we will take a look at the elements for DUI.


A DUI allegation can be based on blood alcohol content (BAC) test results from a breathalyzer machine or a blood test, or it can be charged based on other evidence, if a person did not take a breathalyzer test or a blood test.

The Elements vary based on what type of evidence is used to form the allegations.  The Elements for a DUI charge that is NOT based on a BAC test result are listed below.

The Oklahoma Uniform Jury Instructions states that:

No person may be convicted of driving a motor vehicle while under the influence of alcohol unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, driving;

Second, while under the influence of alcohol;

Third, a motor vehicle;

Fourth, on a (public road/street/highway/turnpike/place)/(private road/street/alley/lane which provides access to one or more single or multi-family dwellings) .

This means that, in order for the prosecution to be able to prove you guilty of DUI, without a BAC test result, they have to prove that you: drove a motor vehicle on a public road while under the influence of alcohol.

The elements would be slightly different if you were charged with DUI and you had a BAC of 0.08 or higher, or if you were charged with Driving Under the Influence of Drugs (DUI-Drugs).


As mentioned above, there are other DUI charges, but hopefully the above information gives you an idea of the types of things that the prosecution has to prove, and the potential defenses that can be used to your advantage.  Other drug charges include:

  • DUI-Drugs,
  • Actual Physical Control (APC),
  • DWI (Driving With Impaired Ability), and
  • Being Involved in an Accident While Under the Influence of Alcohol.


As you can see, the elements for the various DUI related charges are similar.  So the Defenses that we would explore would involve looking at potential weaknesses in any of these elements.

  • You were not driving a motor vehicle, 

  • You were not on a public roadway,

  • You were not under the influence of alcohol. This could involve contesting the officer's conclusion that you were under the influence.  For example, any/all of the following issues might be relevant:

  • The field sobriety tests were not conducted correctly,

  • A medical issue caused the impairment (e.g. bloodshot eyes, inability to perform sobriety tests),

  • There was an alternate cause or explanation for the officer's observations about an odor of alcohol, 

  • The police did not have legal grounds to conduct a traffic stop on you/your vehicle (unlawful seizure),

  • The incriminating statements that you made cannot be used against you, etc.


If you have been charged with any type of DUI Crime, contact Fassio Law today by phone or e-mail so that we can help you!  405-593-8444 or [email protected]

Serving the OKC Metro Area: Oklahoma County (Oklahoma City, Edmond), Cleveland County (Norman, Moore) and Canadian County (El Reno, Yukon, Mustang)

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