Driving Under The Influence Fact Summary
Driving Under the Influence (DUI) laws are getting stricter with each passing year, and the consequences of conviction are increasingly severe. In 2011, the Alabama legislature passed two new “get tough” on DUI acts which require the sentencing court to impose even more severe punishment upon the convicted DUI offender. A DUI arrest is an offense that has very severe and often lifetime consequences.
In Alabama, a DUI arrest triggers both a criminal case and a Department of Public Safety administrative case. Because even a “first offense” DUI arrest can lead to substantial fines, court costs, jail time, and mandatory driver license suspension or revocation, anyone arrested for a DUI offense needs a qualified and experienced attorney protecting their rights.
Although both cases require expert legal help, the Department of Public Safety administrative case is far more time-sensitive. Motorists holding an Alabama driver license arrested for DUI have only 10 days from the date of arrest to request an administrative hearing. If the administrative hearing is not formally requested within 10 days, the driver license suspension will automatically take effect approximately 45 days later. However, if a petition for administrative hearing is filed within the ten days time, the suspension action will be stayed [held in abeyance] until the driver license hearing is conducted. With effective legal representation assisting the motorist, the driver license hearing may be decided in the motorist’s favor and the driver license not ordered suspended.1
Type of DUI Offenses
The criminal case involving an alcohol-related DUI arrest allows the prosecutor to select two different or alternative methods of proof. The first type of DUI violation is referred to as “driving under the influence” violation and is focused on whether the driver was physically and/or mentally impaired by alcohol and was operating a vehicle in an “unsafe manner.”
The second type of DUI violation is a violation of the state’s “per se” law which is solely concerned with the driver’s blood alcohol content (BAC) being .08% percent or greater at the time the test was administered.2 Prior to trial the prosecution must elect which method of proof, or alternate section of the statute, will be prosecuted before the court.
There are different BAC standards for persons operating a commercial motor vehicle or a school bus or day care bus. The legal limit is .04% BAC for commercial vehicle drivers and .02% BAC for bus drivers and day care drivers. Note that these blood alcohol levels are very low amounts of alcohol, and equal only 4/10 or 2/10 of 1% alcohol in a person’s bloodstream at the time of the test.
The most common type of DUI offense is charged by the “under the influence” violation. The elements of proof are concerned with whether the driver was impaired by a sufficient amount of alcohol to be an unsafe driver. The Alabama Supreme Court has stated that impairment means having consumed sufficient quantity of alcohol so as to “affect his ability to operate a vehicle in a safe manner.” It is not necessary that the prosecutor prove the motorist was intoxicated or physically “drunk.” However, the prosecutor must prove some degree of impairment that affected safe driving. Prosecutors will use circumstantial evidence, such as the results of field sobriety tests and the arresting officer’s observations of the driver to prove this allegation. Fortunately, this type of evidence is highly subjective and open to interpretation, and can be effectively challenged on cross-examination of the officer by a skilled DUI defense attorney.
The second type of alcohol-related DUI offense – violating the state’s per se law – must be proven by an “evidentiary” test. Most commonly, the prosecution will offer into evidence the results of a breath test obtained from the state approved breath test instrument. In Alabama, all evidentiary breath test instruments are referred to as Draeger instruments, and are the property of the Department of Forensic Science, an independent state agency. The Draeger instrument is unique among breath testing devices in that it analyzes exhaled breath by two different methods of analysis simultaneously, using both infrared light absorption and electro-chemical fuel cell oxidation to determine breath alcohol content. When used properly, the Draeger instrument is a highly accurate testing instrument.
In some cases, a blood sample will be obtained from the motorist and the results offered into evidence. The driver’s BAC is thereby determined by scientific measurement at the Department of Forensic Science laboratory or other reference laboratory. However, both breath and blood evidentiary tests are open to challenge by a skilled defense attorney trained in the rules of evidence and the state law and state regulations governing the admissibility of evidentiary tests. For example, when dealing with blood test evidence, strict chain of custody requirements are imposed under Alabama law, and the extraction, storage, handling, and testing of blood samples must first be established before the results may be admitted into evidence.
It is a common misunderstanding that law enforcement officers must have breath or blood test evidence for a motorist to be convicted for DUI. That is false. In DUI cases involving the “under the influence” violation, the evidentiary test is considered “corrobative” or supplemental evidence. There is no requirement under Alabama law for the prosecution to obtain an evidentiary test in order to convict a motorist for DUI for the “under the influence” violation. However, if the motorist is charged with the per se violation, an evidentiary test must be offered by the prosecution as proof of impairment.
The state statute governing chemical tests sets forth legal presumptions concerning the blood alcohol concentration taken from the motorist at the time the test was given. A “presumption” is a legal term meaning the finding a basic fact gives rise to the existence of the presumed fact. Under Alabama law, it is presumed that a motorist was driving under the influence of alcohol if the test result obtained was .08% or greater. However, this presumption is “rebuttable,” meaning the court can disregard the statutory presumption if facts and evidence are introduced by the defense counsel that cast doubt on the accuracy and reliability of the test administration or the credentials of the test operator.
Alabama law enforcement officers can lawfully make a DUI arrest without actually seeing the motorist drive or operate a vehicle. Alabama law uses the term "actual physical control" which means that under Alabama’s DUI law, just being present in a vehicle and capable of placing the vehicle in operation may be sufficient legal basis to make an arrest for DUI. Actual physical control is legally defined as the exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of a motor vehicle at the moment, as determined by the totality of the circumstances. For instance, a person who meets one of the above conditions and who is asleep in or simply sitting in a motor vehicle may be lawfully arrested for DUI. Also, it should be noted that a motorist does not have to be operating a vehicle on a public highway to be lawfully arrested for DUI. If the motorist was arrested by the police on private property, such as a store parking lot or on land adjacent to the highway, and was in actual physical control of a vehicle, that may be sufficient to make a lawful arrest.
In addition to the two alcohol-related DUI offenses, the state’s DUI statute also contains three other types of DUI offenses:
- Driving under the influence of a controlled substance
- Driving under the combined influence of alcohol and a controlled substance
- Driving under the influence of any substance which impairs the mental or physical faculties
For persons under the age of 21, there is a special DUI section that makes it illegal and punished as a separate offense to operate a vehicle with a blood alcohol level between .02% and .08%, but provides reduced penalties for violation of this “under the age of 21 years” section.
Implied Consent Law
Alabama’s DUI statutes create an additional punishment and penalty for anyone that refuses to submit to a chemical test of their blood, breath, or urine following a lawful arrest for DUI. This law is known as the “Implied Consent Law” and requires all motorists who operate a vehicle on a public highway to submit to a chemical test when directed by a law enforcement officer. This statutory requirement exists whether the motorist is licensed in the state of Alabama or another state, or is an unlicensed driver.
Refusal to submit to an evidentiary test when properly directed by a law enforcement officer will result in a 90-day driver’s license suspension, with no chance at obtaining a restricted license during that time.3 The 90 day suspension of driver license for test refusal is in addition to any suspension or revocation action that may result from conviction for DUI.
By law, the prosecutor is authorized to use a refusal to submit to a breath test as evidence in the criminal court case, arguing under Alabama’s DUI law that the refusal is an implied admission of guilt. A skilled DUI defense attorney will be needed to file a challenge to the alleged test refusal in order to keep the motorist’s license from being suspended, as well at trial to rebut the argument of “implied guilt” because there may be valid reasons why an innocent driver might refuse to submit to or complete a chemical test.
Classification of the Offense
Alabama DUI penalties have increased significantly in recent years. In 2011, the Alabama legislature passed two “get tough” on DUI bills. Alabama Governor Robert Bentley signed into law the “ignition interlock” statute and the “double minimum punishment” statute on June 9, 2011. The “double minimum punishment” statute, Act 11-621, added an entirely new sub-section to the DUI statute. This sub-section significantly increased the punishment inflicted on a convicted DUI offender under the following conditions:
- If the blood alcohol concentration is .15% or greater while operating or in actual physical control of a vehicle, the convicted offender “shall be sentenced to at least double the minimum punishment that the person would have received if he or she had had less than 0.15 percent by weight of alcohol in his or her blood.”
- In addition, if the offense is a misdemeanor conviction, the minimum period of incarceration is one year, “all of which may be suspended except as otherwise provided for in Section 32-5A-191(f) and Section 32-5A-191(g).” [Note: section (f) requires a minimum period of five (5) days incarceration for a second offense conviction within the past five years and section (g) requires sixty days incarceration for a third offense conviction within the past five years.]
- “In addition, the Director of Public Safety shall revoke the driving privileges or driver’s license of the person convicted for a period of not less than one year.”
This means if a defendant is convicted of DUI with a .15% blood or breath test result, the sentencing court is required to impose “double minimum punishment” to all existing fines and penalties. Additionally, if convicted of DUI with a .15% test result, the Director of Public Safety is required to revoke the driver license or privilege for a period of one year. Any person arrested for DUI on or after September 1, 2011 is subject to the “double minimum punishment” statute. Fines and mandatory jail sentences have significantly increased during the past decade, and in every case, conviction of DUI will result in suspension or revocation of driver license. It should be noted that in the state of Alabama, there is no “limited privilege” or “occupational” or “hardship” driver license. If convicted of any DUI offense, an Alabama licensee loses all driving privileges.
The offense of DUI is classified as a misdemeanor if the current offense is the first, second, or third offense within the past five years. DUI is a felony crime if the current offense is the fourth or subsequent DUI offense within the past five years. Alabama’s "look-back" period for DUI offenses is five years, as measured from the date of each conviction. This includes all DUI convictions, whether occurring in this state or any other state or territory. A driver with a prior DUI conviction who was convicted of DUI more than five years since the second arrest must be treated by the court as a first offender. However, if the second DUI offense occurs within five years of the first conviction, it will be prosecuted as a second offense.
In addition to the “double minimum punishment” law, the legislature also passed Act 11-613, the “ignition interlock” act, which requires the mandatory installation of an ignition interlock device on a specified vehicle for any person convicted of DUI under any of the following conditions:
- “blood alcohol concentration of 0.15% or greater” or
- “any person refusing to provide a blood alcohol concentration” [breath test refusal] or
- “if a child under the age of 14 years was present in the vehicle at the time of the offense” or
- “if someone else besides the offender was injured at the time of the offense”
The Alabama Ignition Interlock statute became effective on September 1, 2012. This statute adds significant “after conviction” supervision and control process by the sentencing court over the convicted DUI offender. All DUI convictions entered by an Alabama court on or after September 1, 2012 are subject to the new “ignition interlock” statute. The “ignition interlock” act revised the state’s primary DUI statute and requires the installation of an ignition interlock device on a designated motor vehicle of a person convicted of first offense DUI under certain conditions and all second and subsequent convictions within the past five years. It is a Class A misdemeanor offense, punishable by a fine of $2500 or by a jail sentence of up to one year, or by fine and jail sentence, for any person required to have the interlock device installed on the specified vehicle to fail to do so or to operate a vehicle without the interlock device as required by the statute.
A first DUI arrest is prosecuted as a misdemeanor. If convicted, the driver faces the possibility of incarceration in the county or municipal jail. Imposition of an active jail sentence for first DUI conviction is within the discretion of the court. By statute, a fine of not less than $600 nor more than $2,100, plus court costs, will be imposed by the court. However, as noted previously, if the first offense was entered with a .15% blood alcohol test result, then the sentencing court is required to impose double minimum punishment. The defendant will also be ordered to attend a court approved substance abuse program. After evaluation by the Court Referral Officer (CRO), the convicted motorist will be enrolled in either the Level I or the Level II substance abuse program. Failure to complete the CRO program as required will result in a delinquency report and the likelihood of an active jail sentence imposed for failing to obey the court’s orders.
The motorist’s driver license will also be suspended for 90 days by the Department of Public Safety, unless the DUI conviction was entered with a .15% blood alcohol concentration. In that case, the Director of Public Safety will revoke the license for one year. There is no opportunity to obtain a “temporary” or “limited privilege” or “work permit” driver license. Such “temporary” or “occupational” or “hardship” driver license privileges do not exist under Alabama law and no court has the authority to issue such a permit.
A second DUI arrest within five years of the first conviction will also be prosecuted as a misdemeanor offense. If convicted, an active jail term of not less than five days is required by statute, and the sentencing court has the authority to impose a term of up to 365 days in jail. The court may allow a defendant to perform 30 days of community service in lieu of the required five days imprisonment. The driver will be fined not less than $1,100 and up to $5,100, plus court costs, and the driver license will be revoked for one year. Again, the “double minimum punishment” law applies to any person convicted of DUI with a .15% blood alcohol concentration. If the motorist is convicted of second offense DUI with the second conviction meeting the .15% standard, the sentencing court will impose ten days of mandatory jail and a double fine of not less than $2,200. The driver will not be eligible to obtain a driver license until one year has elapsed from the date of the revocation, posts SR-22 insurance coverage with the Department of Public Safety for a period of three (3) years, and successfully completes the driver examination. In addition, the driver will be required to complete the Level II or Level III treatment program.
A third DUI arrest within the past five years is also a misdemeanor punishable by not less than 60 days actual incarceration and up to 1 year in jail. The 60 day active sentence is mandatory by state law and cannot be suspended. In many instances, the court will order one year (365 days) of incarceration, impose 60 days of active sentence, and place the remaining 305 days on probation. The “double minimum punishment” statute applies to third offense DUI as well, and the sentencing court will be required to impose double punishment if the conviction was entered with a .15% test result. Upon conviction of third offense DUI, the driver faces a fine of not less than $2,100 and up to $10,100, plus court costs, and must complete the Level III substance abuse treatment program. In addition, the Department of Public Safety will revoke the driver license of the motorist for three years 4.
Under Alabama law, every misdemeanor conviction authorizes the sentencing court to impose a term of probation for up to two years. If the motorist violates any term or condition of probation during the probationary period, such as being re-arrested for another alcohol or drug offense or failing a drug or alcohol screen while on probation, the court is authorized to revoke probation and require the remaining days to be served.
The fourth DUI arrest within five years of three previous DUI convictions, whether occurring in this state or elsewhere, will be prosecuted as a Class C felony. A person convicted of felony DUI will be sentenced to not less than one year and one day and not more than 10 years imprisonment. If the sentence ordered is three years or less, the court has the discretion to order the sentence served in a local jail. If the sentence imposed is more than three years, the convicted person will be sent to the state penitentiary to serve the sentence. The driver also faces a fine of $4,100 and $10,100 and a five-year driver license revocation. The accused will also be required to attend a court approved substance abuse program.
1 Note : This law, called the Administrative License Suspension Act, only deals with individuals holding an Alabama driver license. Persons arrested for DUI holding an out-of-state driver license are not subject to the license removal procedure established under the Administrative License Suspension Act.
2 The term “per cent” or “grams per cent” is term of forensic measurement and means in the whole blood contained eight-tenths of one percent ethyl alcohol at the time of the test.
3 If the refusal is the second or subsequent refusal in the past five years, the driver license or privilege will be suspended for one year.
4 If the driver license is currently under suspension or revocation order, the three year revocation period (five years in the case of a “fourth offense “ DUI) will be added to the existing period of suspension or revocation. By a recent ruling of the Alabama Court of Civil Appeals, driver license suspension or revocation periods are to be served consecutively, and not to be run concurrently when the licensee is facing multiple license removal actions.