You may not know the names of Zach Smith and Sabah Khalaf, but you have totally heard of them: the Tulsa DUI Guy and the Tulsa Drug Lawyer. And the two men have a lot in common: they both fight against what they see as draconian laws, they both know that there is a difference between hardened criminals and the vast majority of the rest of humanity, and they are both true believers.
"The reality was I liked my DUI clients," Smith said of his time after leaving the district attorney's office to pursue private practice in 2006. "They're good people. They're not criminals per se. They are, often times, just like you and me. They're normal people who have jobs, they contribute to the betterment of our society, they pay taxes. But for their poor decision, oftentimes, they wouldn't be in front of me. That's why I do what I do."
Granted, the crimes Smith and Khalaf defend against are different in many ways, and each man has his different reasons for doing what he does. Still, though, they are both doing what they believe is right.
"I don't think it's immoral to smoke pot," Khalaf said bluntly. "If you want to smoke pot, and you're not offending anybody, that's fine."
Both attorneys headed into the district attorney's office as prosecutors after law school, both cutting their legal teeth on case after case, and both yearned for private practice work after a bit.
"When I was a prosecutor, I started to get a bit burned out," Smith said. "I was trying a lot of jury trials. From 2004 to 2006, I tried 25 felony jury trials in, I believe, 24 months."
Both he and Khalaf grew to have issues with the whys and wherefores of who was being arrested for what, and it's there that their paths diverge. While Khalaf blatantly argues that marijuana should be legal, Smith does not advocate for people to be able to get falling-down drunk and drive wherever they want to.
Still, both men argue for the use of common sense, and both make cases for the averageness of the Average Joe.
"I don't think that everyone who uses drugs is a bad person, especially in the context of marijuana," Khalaf said. "Someone who smokes a joint or gets behind the wheel after having a couple of beers, they don't have compromised morals like someone who is intentionally stealing from someone or intentionally raping someone or intentionally making a compromised moral decision."
Smith echoed this.
"I think that your average person doesn't want to get a DUI," he said. "It's not like they say to themselves, 'Let's go commit a crime. I'm going to go get a DUI.'
"If you think about it," he continued, "you're not going to know a murderer. It's very unlikely that as an individual, Brad Morris is going to know very many murderers. But he may, himself, be exposed to a DUI situation, whether he himself is driving or his wife or girlfriend. Just about everyone knows someone who has been charged with a DUI."
For those reasons, both men felt that their respective services were in need by regular non-criminals who get into a scrape with a badge.
And those everyday people are kind of common, it turns out. According to Leland Ashley, a public information officer for the Tulsa Police Department, in 2012, there were 910 arrests for DUI.
"The total number of marijuana arrests," he said in an email, "which consisted of marijuana possession, manufacturing, and selling of marijuana was 1,194 arrests."
That's almost six people arrested every single day for charges related to Khalaf's and Smith's specialty fields. In some ways, those numbers bolster what the attorneys said about these arrests befalling regular people. Numbers like these, well, it seems like kind of a normal thing.
"It's the everyday person. Some people like to smoke weed," Khalaf said. "Some people like to drink. Some people like to do both. Going and having a few drinks and thinking you're okay -- there's no way to actually know whether you're .08 or above. It's really just, 'I've had a couple of drinks, it's been two or three hours, I'm fine to drive.' If you were to take a breathalyzer test, you would probably fail it. That doesn't make you a bad person."
Given enough time in separate interviews, though, each lawyer made his way to what seems to be at the heart of his practice: that there is right and wrong, and that the police and the perp (and the community and the law) are not always on the sides we expect them to be.
"I don't like the politics of driving under the influence of alcohol," Smith said. And then he took a deep breath and laid it out.
"They sell cold beer at every convenience store. We promote in our own city advertisements, 'Please, come down to Brookside, come down to Cherry Street, go to the Blue Dome district.' And guess what? All of those places provide alcohol," he said. "We're also a city that has a horrible taxi service. We don't have a transit system here. Not really. You can take the bus, but not at night. You can't get around practically unless you call a cab, and I don't know if you've ever called a cab in this city, but you better call way ahead of time. It takes 45 minutes to an hour, and that's at best. I've waited on my fair share."
Very quickly, he returned to the political side of the issue, as well, though did not -- as Khalaf did -- say that the crime he defends shouldn't be a crime in the first place.
"I believe it's very hypocritical," he said, and would elaborate just a few sentences later. "I believe our policy makers and people who run our government talk out of both sides of their mouths."
And there's the part the media play in the social perception of drunk driving, as well -- specifically, the question that gets raised any time a multiple-DUI offender gets involved in a fatality accident.
"How does somebody get 10 DUIs before they go to prison?" he asked rhetorically. "I'll tell you how that happens. It's kind of like The Andy Griffith Show. Otis is the drunk guy. You always saw Otis sitting in the drunk tank. He was the town drunk. That's what you have in a lot of municipalities."
What he was referring to is the fact that smaller towns don't have their own, less-overcrowded version of Tulsa County's David L. Moss Criminal Detention Facility.
"Let's take Ft. Gibson. That's a small town -- so small that if you get a DUI in Ft. Gibson, I don't even know if they have a jail there. There's just a fine. That's it," he said. "So they started doing stories about, 'Well, how come these guys will get 15 DUIs?'"
When that offender with the 15 small-town DUIs and multiple fines but no jail time gets into an accident, killing a family of four, the outcry begins. The public wants to know how this 16th, devastating DUI could have been allowed to happen and how the driver could possibly still have his license (actually, he probably doesn't, but not having a license doesn't stop people from getting into their own cars).
"What they've done recently is they've passed laws to eliminate that," Smith explained.
Though initial DUI offenses are considered misdemeanor charges, eventually, those charges can start getting bumped up to felonies.
"Felony is when it starts getting serious," Smith said. "Now they've made it so that a felony is just your second offense. And I can see a day where they'll make it a felony if your blood alcohol level is really high. But currently, the way it's set up, these municipalities, if it's your first time, and you're arrested by a Bixby or a Broken Arrow police officer, they will keep you in that jail, and you'll be prosecuted by the Broken Arrow municipal court or the Bixby municipal court versus state district court in Tulsa county. They can do both. They can choose the jurisdiction."
With the change in the laws, and now a second DUI requires felony charges, those second arrests no longer result in fines generated and placed into the coffers of the smaller towns where the offenses occurred.
"When this came up and it was a big issue in those municipalities, you had people literally saying on the record, in newspapers, 'But this garners a lot of money for our city. We don't want to send our DUIs off to county because our town depends upon a lot of this income,'" he said, his tone reflecting an Atticus Finchian righteous indignation. "That is why I do what I do, because it offends me that we have people in this county or our government running the place stating to our children and to the world that driving under the influence is illegal, you shouldn't do it, you should be prosecuted, you don't drink and drive, but on the other hand, they turn around and say, 'We depend on this as a way to make money.'"
This is from a man who is a far cry from the sleazy lawyers who are the butt of so many jokes. He believes in what he's doing.
Both lawyers spoke independently about the reasons that people get pulled over -- obviously the manner in which most DUI arrests are undertaken -- but also, how a great many citizen-police interactions that result in drug charges begin. And both men expressed visible and audible disdain for how such traffic stops are conducted.
"Police officers are trained in how to handle situations, and they know what they're doing," Khalaf said. "So whenever they pull someone over, they can articulate why they pulled them over. And then you get to, 'Okay, they pulled him over. Why did they continue this investigation?' If they pulled you over for not using a turn signal or for having a tag light out, then why are you asking him if he's had something to drink? Or if he has anything illegal in the car?"
Smith said nearly the same thing, though his Matthew McConaughey-style drawl and delivery somehow made him seem much more indignant about the whole the-reason-we-pulled-you-over situation than does Khalaf.
"What people get pulled over for most of the time is speeding, failure to signal," he said. "'Improper lane use' is my favorite. Essentially, what these officers are doing is just finding a reason to pull someone over to ask them the ultimate, all-encompassing question: 'Have you been drinking? And if the answer is "yes," then I want to find out your blood alcohol concentration. And if it's .08 or higher, then you're coming with me.' That's all there is to it."
And then there was Smith's angler analogy: that making DUI arrests is like fishing, and the police go fishing after midnight.
"You don't have some officer out here pulling people over on their lunch break for failing to signal, for improper turn and asking them, 'How much have you had to drink today?' They don't do that," he said. "But in the middle of the night on Friday or Saturday, they'll pull you over for seemingly nothing."
And if traffic enforcement exists to ensure public safety and the safety of all motorists on the road, Smith feels that the police should be enforcing traffic laws at better times of the day.
"It seems to me that 'failure to signal' would be a bigger thing to prosecute in the middle of the day when there are cars around," he said. "But most of those are in the middle of the night."
Khalaf is especially passionate about the rights of his clients and, more specifically, whether said rights were ever violated, either through the actions of the officer involved or the ignorance of his defendant.
He used as an example any number of traffic offenses--driving without insurance, or driving with an expired tag or with a suspended license. Once any of those things has been established by the police officer, he or she has a few tools to set against the driver; specifically, the legal right to have the car impounded.
"If the officer tows the vehicle, they can do what's called an inventory, which is basically a search," Khalaf explained. "It's classified as an inventory, but really, they want to search your car. So if in the course of this inventory, they find that gram of bud that you've got, or there's two Lortabs or whatever it is that you have in your center console that you know you shouldn't be riding around with -- they find that, and boom, you're charged. That's how it happens most of the time."
Although Khalaf is a pleasant man who smiled through most of the interview, he was not smiling at this time.
"A lot of times, you're looking at someone who gets pulled over, and they have drugs in the car, and they don't know that they have the right to tell the officer, 'I'm not consenting to a search,'" he continued. "Most of the time, out of ignorance, people will agree to things knowing that they have things in their possession that are illegal, but they just don't know any better or they're scared or they're just afraid to tell the officer, 'No, you can't search my car.'"
Like Smith, he laid out a scenario that ends in arrest more often than not.
"I think a lot of people believe that if they comply, then the officer will say, 'Oh, if he's willing to let me search his car, then he's probably not hiding anything.' That's not the case," he said. "They always search."
And he again mentioned general ignorance of the law on the part of most Americans, a theme Smith was fond of, as well.
"The majority of my cases stem from traffic stops and people not knowing that: 1) if you're going to do drugs, don't drive around with them," Khalaf said. "And 2), if the officer asks you about your drugs, say, 'I want to talk to an attorney,' or 'No, you cannot search me,' and 'Officer, am I being detained right now? Why am I being detained? It's not for having a broken taillight.'"
Beyond what may or may not be seen by some as underhanded tactics that may or may not pass constitutional muster, Khalaf does what he does because he believes in the cause. And also, he kind of hates Big Pharma.
"I think that marijuana should be legalized and that most drugs don't harm society the way that the lobbyists would like society to believe they do," he said. "I think a lot of these lobbyists are motivated by the big pharmaceutical companies who have an interest in drugs being illegal."
This may explain why you get the idea when talking to him that no one righteously proclaims to him that he's defending terrible people, or that he's going to hell for getting those potheads sprung from jail just to go out and smoke their wacky tabacky some more.
"I can defend people for drug crimes and for DUIs and for things of that nature and go home and feel completely at peace with myself," he said. "It's typically an average person who doesn't know the system or would get pushed around if they didn't have adequate counsel in this type of dilemma."
There is a line, for him, though. He's not advocating a drug-fueled America.
"If you're charged with a drug crime, I would say with the exception of meth and heroin and the dirtier drugs, then you're probably just a normal person who likes to have fun, and society says it's illegal, and you got caught, you need someone to represent you and make sure that you're treated fairly," he said.
Smith returned to the ignorance-of-the-public argument, although he more pointedly addressed a general naiveté.
"Officers are really good about coming up to the car and the first thing out of their mouth is, 'How much have you had to drink tonight?'" he said. "People are honest. They just are. And they don't want to lie, and they think, 'Oh, if I'm nice, if I'm really polite, if I'm honest...'"
His response to those polite, honest citizens?
"Well, I tell people 'Nice guys finish last,'" he said. "When you are out driving, it's unfortunate, but if that officer asks you how much you've had to drink tonight, if what comes out of your mouth is anything but 'Nothing,' or 'zero,' or 'I haven't drank anything,' then you are likely going to jail."
Khalaf cited general cases from his past, though confidentiality prevented him from speaking about specific incidences. Still, he had hypotheticals at the ready to bolster his most-offenders-are-just-regular-people motivations.
"Adderall is considered a Schedule II drug and is considered a felony," he explained. "If your buddy gives you an Adderall because you have a big test in the morning and you get caught, then boom, you're charged with a felony. Does that make you a criminal? Does that make him a bad person? Absolutely not."
It was a natural path, then, for him to ease into private practice and become The Drug Lawyer.
"They're not bad people. They're not consciously committing crimes that are in any way impacting society in a negative way," he said. "If someone wants to smoke a joint, I don't know that they're hurting anybody. I've never seen a case study or read police report or even heard a story about a guy who smoked a joint and decided he was going to go beat his wife afterward. It's just not a violence-inducing drug."
The cynical reader may say to himself that he's seen Smith's art deco-style, silhouette portraits on advertisements in bars, or that they've signed a credit card receipt with a pen with Khalaf's name and a pot leaf emblazoned on it because that's the pen the server left with the slip when she dropped the check at the table. "These guys are just out to make a buck," that reader might say.
And they do make a buck. However:
"It's like anything else -- you get what you pay for," Khalaf said. "I give people really good customer service. They can call me, they have my cell phone number, they can text me, email me. I go above and beyond just what I have to do legally."
And hey, you have to admit that The Tulsa DUI Guy is a hell of a moniker. It sticks in your mind, and it tells you exactly what he does. Same with The Tulsa Drug Lawyer. So what's wrong with a little advertising to get the word out for a service that people -- regular, non-hardened non-criminals -- need?
Gone are the days of Jimmy the Grunt, the hapless, laughingstock-of-the-bar-association character on David E. Kelley's ABC legal drama The Practice who advertised his services on television to the derision and dismay of his peers.
After seeing ads for various businesses and services in the restrooms of a few bars, Smith let his mind wander.
"First, I thought, 'Well, maybe it's against the rules,'" he said. Still working in the DA's office, he didn't know what was what.
"When you're a prosecutor, the real world doesn't exist to you. You live in a bubble. So I didn't have any idea about the rules," he said. "And then I thought, 'well, even if it's not against the rules, maybe lawyers just don't want to advertise their practice in the bathroom.'"
He asked a friend for an opinion on advertising for a criminal law practice, and the idea was warmly received.
"'You know, you could kind of be the Tulsa DUI Guy.' I said, 'That's actually a great idea," Smith said. "The thing is, I had never even done a DUI. Hell, I hadn't even left the DA's office."
In fact, he'd never defended anyone, but knowing he had to start somewhere, he did just that: he started coming up with "Zach Smith, attorney" ads in 2006 and took all manner of criminal cases.
"That first generation of ads, DUI was kind of the forefront," he said. "It gravitated to The Tulsa DUI Guy. I knew a girl who was into marketing and in graphic design. I asked her for a logo. I had built a bit of a reputation, and I knew it was the time. I had done a certain number of DUIs, and the second year it doubled, so I felt comfortable coming out and saying that I was the Tulsa DUI guy. I was doing more DUIs than any other attorney."
Thus began his reign of terror (at least in the eyes of prosecutors). Thoughtful readers may articulate at this point that it seems Smith was driven by making a name, a reputation, and money for himself. And he was. However, his motivations have changed.
"If I had to do it all over again, I'd do the same thing for a different reason," he said. "I like the ability to help people. That, ultimately, is what drew me, I think, to going out on my own and being a lawyer."
Khalaf is more succinct and -- since he started his practice and his advertising six years later than Smith did -- doesn't give off even a hint of needing to justify his tactics.
"It's guerilla marketing," he says of the swag he takes around town to head shops, bars, and other places. There are the pens, there are glow-in-the-dark Frisbees, there are potholders that every kitchen needs, and of course, matchbooks.
"People like to use pens," he said. "Waitresses need pens. And it's a good way to get my name out there. People who play Frisbee golf oftentimes indulge in illicit activities."
Where the two men begin to separate is in their future prospects. With marijuana legalization happening in a few states, and an increasing acceptance among the general public that the so-called war on drugs has been an abject failure and a horrific drain of resources, Khalaf sees a day -- even longs for it -- when his services will no longer be needed.
"If they were to legalize marijuana, I would gladly forfeit all the money that I make from defending people on marijuana charges," he said. "If you go to thedruglawyer.com, the mission statement reflects that."
Additionally, Khalaf sees hope right here in our very red Legislature.
"I think Oklahoma is on the right track," he said. "This year, there's a state senator out of Oklahoma City, Constance Johnson. For the last six years, she's been trying to introduce legislation that would provide for the legalization of medical marijuana. This was the first year that she was able to get it before a committee. Granted, the committee shot it down, but it's progress."
And then there's State Rep. Cory Williams out of Stillwater, who has introduced House Bill 1835, which would no longer make a second possession charge a felony.
"This is still pending," he said. "Hopefully, it will pass, because I think it's ridiculous that if someone gets charged with owning a gram of marijuana, and then five years later, they get charged with having another gram of marijuana, they are facing a felony. I mean, a felony is a big deal."
Smith, however, has no illusions that his practice will ever slow down if for no other reason than that the laws surrounding DUI continue to get tighter and tighter, reminding one of Princess Leia's defiant statement to Darth Vader: "The more you tighten your grip, the more star systems will slip through your fingers."
"There are a lot of people -- Mothers Against Drunk Driving, a lot of representatives and legislators -- they can get behind DUI and garner a lot of steam for their campaign and a garner a lot of votes," he said. "'Let's be tough on crime, let's get tougher on DUIs.' But in reality, that's not going to do anything. That's not going to change anything. They're going about it the wrong way."
The right way, he feels, though he readily admits that his clients wouldn't want to hear this, would be to require jail time for any and all DUI arrests.
"I'm talking two weeks, 30 days, minimum, no matter what," Smith said. "I'm going to tell you right now, if you start putting people in jail for two weeks, 30 days for a DUI, first-time offense, no matter what, no ifs, ands, or buts, they will stop getting them. Bottom line."
Still, though, he is bothered by the more and more extreme definitions of driving under the influence and its more insidious, lesser-known cousin.
"Think about this: In the state of Oklahoma, we have a crime called Driving While Impaired," he said, and you could practically hear in his voice the air quotes he put around "impaired." "That means your blood alcohol concentration is .06, .07."
As the legal definition of driving under the influence is doing so with a blood alcohol concentration of .08, one wonders the point of having a statute making this a crime (for which Smith said no one has ever been arrested).
"It's called 'margin of error,'" he said. "It's called 'When you get down to the station and you're not a .08, we don't want to let every Tom, Dick, or Harry go who blows a .07 or under, so we create this margin of error.' You get arrested for DUI, and then you blow a .07 or under, and they say, 'Well, you're not DUI, you're driving while impaired. What does that say? That says the officer was wrong. That's the other problem I have with it is this nebulous number."
And that magic .08 number is in danger, too.
"You also have the National Highway Traffic Safety Administration pushing for a .05," he said. "Here's where I am on this: Why not just make it zero tolerance if we're going to go that low? Because that's basically where you're pushing it."
Smith knows DUI will always be against the law, and he will always have clients to defend. How does he know that?
"Because there's a fresh crop of 21-year-olds every year that doesn't think it will happen to them," he said.
Both Khalaf and Smith do what they do because they think that what they are doing is the right thing. Each has his reasons, and each sleeps peacefully at night.
"I don't know that it's my calling, but it's definitely something that I'm enjoying right now," Khalaf said of his work. "I think it needs to be done. Someone needs to be doing what I'm doing. I really believe that marijuana should be legalized, and I think that the biggest people that are in opposition to it are either people who are completely ignorant or are on the side of the pharmaceutical companies."
While the longer-practicing Smith might ought to seem jaded, he is far from it.
"There is a segment of people that gets arrested that probably shouldn't be arrested," he said. "Does that make me a 'true believer'? I don't know. Where I get really staunch in defending my clients is when I have to remind people, 'Hey, this is a person who is a contributor to society. Yes, they blew a .10 or a point .11, but they weren't falling down drunk.' I understand, by state law, strict liability, if you blow a .08, you're strictly liable for a DUI. But have we thrown the baby out with the bathwater? Have we lowered this number to such a point where we are taking people to jail who maybe shouldn't go to jail? What's the accomplishment here?"
If nothing else, the accomplishment is yet another unintended consequence: two jurists who have left the slick, rich, high-powered clients behind in order to work toward causes in which they whole-heartedly agree.
And then there's this:
"Why should it be legal that you can dope your kid up on Xanax and Lortab and hydrocodone and whatever else," Khalaf practically demanded, "which are all man-made drugs that are highly addictive versus smoking a plant?"
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