On June 9, 2011, Gov. Robert Bentley signed into law Act 11-613, the "ignition interlock" bill (HB 361), and Act 11-621, the "double minimum punishment" bill (SB 67). Both acts will have a significant impact on Alabama DUI law and practice. The effective date of both acts is September 1, 2011. However, the implementation date for the ignition interlock act will not start until one year later, on September 1, 2012. The "double minimum punishment" act is discussed first.

Act 11-621 adds an entirely new sub-section (i) to Code section 32-5A-191. This sub-section increases 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."
• If the adjudicated 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." [Last sentence, new sub-section (i)]

The requirement for the Director of Public Safety to enter a one year's revocation order of driver license or privilege is a change to existing law. Currently, on conviction of first offense DUI, the statutory period of driver license removal is a 90 day suspension. See, Code of Alabama, 1975, section 32-5A-191 (e). However, and in contradiction to the new statute, in current Code section 32-5A-304 (c), that part of the Code states:

"If a license is suspended under this section [Alabama Administrative License Suspension Act] for having .08 or more by weight of alcohol in the blood of the person and the person is also convicted on criminal charges arising out of the same occurrence for violation of Section 32-5A-191, the suspension under this section shall be imposed, but no period of suspension or revocation shall be imposed under Section 32-5A-191." (emphasis added).

Since the new act does not expressly repeal or amend 32-5A-304, the unresolved question is if the Alabama driver license has already been suspended under the terms of the administrative license suspension act for the arrest and breath test result, will the Director of Public Safety upon receipt of notice of conviction from the trial court then enter a new license removal order and change the status from suspended to revoked? If the licensee is already serving or has completed serving a 90 day suspension for first "alcohol or drug-related contact" under 32-5A-304 (b)(1), will the licensee then be "credited" with 90 days of license removal, or will the licensee be required to serve a full one year revocation? Clearly, section 32-5A-304 (c) is in direct conflict with the new sub-section (i). The general rule of statutory construction is repeal by implication is disfavored, yet another rule of statutory construction is when two statutes are in direct conflict, the latter statute takes precedence over the former. This unresolved conflict in statutory language will mostly likely require a formal Attorney General's Opinion to resolve the issue of whether the express terms of the later statute requiring mandatory revocation take precedence over the prior statute prohibiting the imposition of additional license removal upon receipt of conviction.

Further, it is generally accepted and understood that the state of Alabama cannot suspend or revoke an out of state license, but can enter a suspension or revocation order against an out of state driver's privilege to operate within the state. New sub-section (i) requires the Director to revoke the privilege of any person convicted under this section of law. Will the new section have an unintended effect on out of state licensees by imposition of the mandatory one year revocation order? If the state of Alabama enters a one year revocation order against an out of state licensee for conduct occurring in the state of Alabama, the Driver License Compact ostensibly requires the licensee's home state to recognize that order, even if the same conduct would not have resulted in a similar license removal action of the same duration in the home state.

Act 11-613 is the new "ignition interlock" act that will require 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. Act 11-613 must be read in conjunction with existing 32-5A-191, as amended by new Act 11-621. In addition, Act 11-613 adds an entirely new section of law, 32-5A-194.4.

Act 11-613 amends current 32-5A-191 (e), the "first offense" sub-section, to require the installation of an ignition interlock device for any person convicted of DUI under any of the following conditions:

• The "blood alcohol concentration of 0.15% or greater" or
• "any person refusing to provide a blood alcohol concentration" (sic) [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"

Upon receiving notice of conviction of DUI under any of the four listed conditions, the Director "shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days and the person shall be required to have an ignition interlock device installed ....for a period of two years ...." [Note: The period of license removal under Act 11-613 is a 90 day suspension on first offense, even with a .15% blood alcohol concentration, and not the one year's revocation as required under Act 11-621.]

On second offense within a five year period, the person so convicted shall be required to have an ignition interlock installed for a period of two years from date of driver license re-issuance. The requirement for ignition interlock on second offense DUI is not contingent on any enumerated factor, such as outlined in sub-section (e), above.

On third offense within a five year period, the convicted offender is required to have an ignition interlock installed for a period of three years from date of driver license re-issuance. On fourth offense, the convicted offender is required to have an ignition interlock installed for a period of five years from date of driver license re-issuance.

In sub-section (q) of Act 11-613, the statute imposes additional registration and license issuance fees on all convicted offenders required to install an ignition interlock device:

• A fee of $75 per month ($300 total) paid to the sentencing court during the first four months that ignition interlock device is required, with the distribution of monies to the following entities:
  • 40% to the Alabama Interlock Indigent Fund
  • 25% to the court having jurisdiction over the case
  • 20% to the Department of Public Safety
  • 15% to the district attorney having jurisdiction

[Note: On an annual basis, approximately one-half of all DUI convictions are entered at the municipal court level and no appeal is taken to the circuit court. After fourteen days, the conviction becomes a "final conviction" for purposes of license sanctions. A municipal court is a court of limited jurisdiction and the district attorney does not control prosecutions in the municipal court. The 15% fee to the "district attorney having jurisdiction" is therefore inapplicable to municipal court convictions. It is unclear how or where the 15% added fee for the district attorney will deposited since the sentencing court is the municipal court.]

In addition, the Department of Public Safety is authorized to set a license issuance fee of $150 for a special "ignition interlock required" type license to indicate the operator is required to maintain an interlock device. Upon application for re-licensing to obtain a standard Alabama driver license, the Department is authorized to set a license issuance fee of $75. The $75 license re-issuance fee is in addition to the presently required $275 "reinstatement fee" to clear the license status.

Prior to re-licensing, the convicted offender is required to identify to the sentencing court the designated vehicle by vehicle identification number (VIN) that the device will be installed. The offender is then required to provide proof to the Department of Public Safety that an approved interlock device was installed on the designated vehicle as a condition for re-licensing. Any convicted offender required to utilize ignition interlock who operates a vehicle without ignition interlock shall be subjected to an additional period of six months interlock requirement, in addition to other penalties.

Sub-section (s)(2) is apparently intended to deal with a person previously convicted and required to utilize an ignition interlock. If the person is re-arrested for a DUI offense and the convicted offender refused to submit to breath testing and was subsequently convicted, or the convicted defendant's blood alcohol concentration was 0.15% percent or greater, "The duration of the time an ignition interlock device is required by this section shall be doubled..." In other words, running parallel to Act 11-621, the "double minimum punishment" act, under the terms of sub-section (q) in Act 11-613, if the DUI defendant is subsequently convicted of the offense of DUI, and the person either refused to submit to a chemical test or the test result was .15% or greater, the duration of time the ignition interlock is required will be doubled. Since the installation of an interlock device for a first offense conviction is for a period of two years following a conviction with a .15% test result or test refusal, presumably this means a second offense conviction with a test result of .15% or test refusal, the duration period will increase from two years to four years; on third offense, from three years to six years; and on fourth or subsequent offense, from five years to ten years.

Act 11-613 added a new statute to enforce the ignition interlock act - section 32-5A-191.4. The new section requires the Department of Forensic Sciences to establish and approve rules and regulations governing all aspects of the ignition interlock program, to test and evaluate approved models, and to provide governmental oversight to the private providers. Under the terms of 32-5A-194.4, it is clearly the intent of the act that private "for profit" companies will install, calibrate, service, and maintain the interlock devices. The state of Alabama will not be engaged in the installation and service of the interlock devices.

Under the terms of section 32-5A-194.4, a convicted offender may apply for indigent status and the sentencing court, upon application and review, may grant indigent status for interlock installation. If granted, the convicted offender will then locate an approved provider and have an ignition interlock installed, provided the convicted person must pay one-half (1/2) the costs associated with installation and maintenance. "This section shall not affect any fees associated with the driver's license of the defendant." There is no "indigent status" for driver license application fees or reinstatement fees; all driver license fees must be paid in full to the Department of Public Safety prior to re-licensing.

All approved interlock providers will be required to deposit one and one-half percent of all payments (1.5%) collected to be paid into the Alabama Interlock Indigent Fund as a funding source to underwrite the indigent interlock applications.

If the convicted defendant does not own a vehicle, that person shall be required to pay $75 per month to the clerk of the court for the same period of duration as if an ignition interlock was installed. The clerk of the court shall transmit the monies the state treasury for use by the Department of Public Safety for "impaired driving education and enforcement." [Note: Whether the $75 per month fee can be waived or set-aside under authority of Rule 26.11 ARCrP is unstated. Presumably the sentencing court has the authority to waive this fee upon the defendant's showing of indigent status or inability to pay.]

In sub-section (i) of Act 11-613, any person who operates a vehicle without an ignition interlock device when required "shall be immediately removed from the vehicle and taken into custody." This section of law authorizes the immediate custodial arrest of any non-complying convicted DUI offender, and the vehicle "shall be impounded" and not released except in accordance with 32-6-19 (b). [32-6-19 (b) is the "tow and impound" statute authorizing law enforcement officers to seize any vehicle where the driver is operating the vehicle with a revoked driver license or the license or privilege is suspended as a consequence of a DUI offense.]

Any violation of the express terms and conditions of ignition interlock use, such as unlawful modification or disabling the device, or failure to operate an ignition interlock equipped vehicle when required, upon first conviction is a Class A misdemeanor and the person so convicted shall be required to use the ignition interlock for an additional six month period. Upon second conviction, the court shall impose a mandatory jail sentence of not less than 48 hours and the person so convicted shall be required to use the ignition interlock for an additional six months. Upon third or subsequent conviction, the court shall impose a jail sentence of not less than five days and the defendant shall be required to use an ignition interlock for an additional one year.

Act 11-613 takes effect on September 1, 2011. Section 3 states: "The substantive provisions of this act shall be operative 12 months after the effective date of this act." (September 1, 2012.)

Practitioner's Note: The actual impact of ignition interlock devices on Alabama DUI practice and procedure will not be known for several years, but a survey of the practices in other states indicate the installation and use requirement of ignition interlock for convicted DUI offenders will generally reduce, but not solve, the problem of the recidivist "drunk driver." As example, the state of New Mexico, one of the pioneer states in implementing the requirements for ignition interlock, reported a 37% reduction in the state-wide re-arrest rate of convicted DUI offenders, a 31% over-all reduction on alcohol-involved crashes, and a 41% reduction in alcohol-involved injuries, when comparing 2002, the initial year of ignition interlock requirement, to 2009, the latest full year for highway safety statistics. According to Richard Roth, Ph.D, program administrator for Santa Fe Impact DWI, a traffic safety activist group, ignition interlock has significantly reduced overall alcohol related fatalities, although "gap" areas remain. The "gap" areas in New Mexico include convicted offenders continuing to drive while license is revoked or driving a non-interlocked vehicle, waiting out the license revocation period (not applicable under Act 11-613), and persons arrested for DUI waiting final adjudication of the case, yet continuing to drive a non-interlock equipped vehicle.

Exactly how many Alabama drivers will be required under Act 11-613 to install an interlock device is open to speculation. The total number of DUI cases in 2009, the last year that DPS had full records, was 21,905, and of that number, 16,912 were convicted (77%). Of the total number of arrests in any given year, an average 34-36% of arrests are reported as refusing the breath test. Of the total number that take the breath test, about 64-67% of all cases, 40-41% of those cases will result in a test result of .15% or greater (DFS supplied data). By determining the approximate number of test refusals (+/- 35%) and the approximate number of breath test results .15% or greater (+/- 40%), to the total number of 16, 912 persons convicted, it is estimated that approximately 12, 600 persons will be subjected to the ignition interlock requirement annually, assuming the total number of DUI arrests remains in the 20,000 - 22,000 range yearly. That number is, of course, a rough estimate. Under the express terms of Act 11-613, only arrested subjects convicted of DUI will be subjected to the interlock requirement. Breath test refusal, in itself, will not carry the sanction of ignition interlock, and a test refusal that does not result in conviction will continue to be dealt with under the provisions of the Alabama Implied Consent Act and the Administrative License Suspension Act. Further, since "first offense" DUI offenders convicted with a test result of .14% or less will not be subjected to ignition interlock, there will be substantial effort by the defense bar to "reduce" or amend the DUI arrest to a lesser test result, usually in exchange as a plea bargain. Plea agreements will undoubtedly off-set the number of persons required to comply with the ignition interlock requirement.