Alabama’s New DUI Act - Continued
XII. Unresolved Statutory Conflict with CRO Compliance and Driver License Reissuance:
Issue: In the current 2014 DUI statute, the Department of Public Safety is authorized to issue an interlock restricted driver license to a convicted DUI offender and a substantial part of the mandatory suspension or revocation period is held in abeyance while the interlock requirement is in effect and then set aside after the interlock period expires. In the case of the “first offender” with a breath test result of 0.14% or less, the convicted DUI offender will serve no license suspension time if the offender “elects” to install the interlock device for a period of six months. In cases where the “first offender” submitted to testing with a breath test result of .15% or greater, the convicted offender is eligible for immediate re-licensing with an interlock restricted driver license and the interlock device will be maintained for two years. See, revised Code section 32-5A-191(e).
The CRO Requirement: Current sub-section (k) prohibits the "reissue" of an Alabama driver license until such time the mandatory CRO program is completed. That section of statutory law states in pertinent part in the last sentence of (k):
“The Department of Public Safety shall not reissue a driver’s license to a person convicted under this section without receiving proof that the defendant has successfully completed the required program.”
In many instances, the CRO program will require six months to one year (or longer) to successfully complete, depending upon whether the offender is placed into Tier I, II, or III of the CRO program. Obviously, the legislature cannot have intended the recent amendments requiring ignition interlock as a prerequisite for driver license reissuance and, if installed and maintained on the vehicle for the required duration, such installation of the device will substantially reduce the period of driver license suspension or revocation, and at the same time, mandated full completion of the CRO program prior to driver license re-issuance.
This conflict in the new act with pre-existing statutory law is fundamentally a question of statutory construction and legislative intent. The well-established rules of statutory construction that frame this question are:
1) The text must be considered as a whole. "The meaning of a statute is to be looked for, not in any single section, but in all the parts together and in relation to the end in view." Cardozo, J., Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935)
2) The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.
3) If there is a conflict between a general provision and a specific provision, the specific provision prevails.
4) Statutes in pari materia are to be interpreted together, as though they were one law.
5) Repeal by implication is disfavored as a matter of law, but a provision that flatly contradicts an earlier-enacted provision repeals it.
See, generally, Scalia and Garner, Reading Law: The Interpretation of Legal Texts, West (2012).
Canon (5) is probably the most important rule of statutory construction in deciding this specific question. Sub-section (k) deals with the Mandatory Treatment Act of 1990 and was added to the Code sometime after 1990 to enforce the mandatory treatment requirement. I have researched the Secretary of State’s web site of Acts of Alabama in preparation for this lesson plan but have been hindered by the fact the Secretary of State’s enrolled acts on-line only go back to 1987. It appears, although I am not positive, that the license "shall not reissued" provision was first added to the Alabama DUI statute in 1994 by Act 1994-590. The exact language found in the current 2014 DUI act in sub-section (k) was included in Act 1994-590 as sub-section (g). It appears that former sub-section (g) has been carried over in the exact same wording and format with each successive re-write of the state’s DUI law since 1994 and is now included in the current DUI statute as sub-section (k).
While the legislative requirement to mandate post-conviction treatment may have been the legislative intent in 1994, for all intents and purposes both prior sub-section (g) in the 1994 Act as well as sub-section (k) in the 2014 Act is an "add-on" license sanction provision, in much the same vein as the child support enforcement statute found in Code section 30-3-174 ordering the suspension of driver license for non-payment of a child support order. That sanction gives "teeth” to an existing child support order and mandates the Department of Public Safety to suspend, and to maintain suspended, the driver license and driving privilege of any delinquent child support obligor until such time the delinquent amount of child support is paid in full. Likewise, sub-section (k), both as contained in previous acts and in the current act, gives "teeth" to the CRO program - noncompliance with the state’s CRO program mandates that the Department of Public Safety will not issue (or “reissue”) a valid driver license. This wording is therefore in direct conflict with the ignition interlock provisions incorporated in the new act, and the Department in order to carry out the legislative mandate must either “overlook” sub-section (k) or fail to enforce the recently enacted interlock provisions.
It may be important to note in this discussion is that the Department of Public Safety is not issuing a “regular” or an unrestricted driver license in conjunction with the new 2014 DUI Act; rather, DPS is issuing an "interlock restricted" driver license which could be logically construed as a special, limited purposed or a "restricted" driver license and not a full driver license. The exact language in current sub-section (k) in the last sentence of that section states: "The Department of Public Safety shall not reissue a driver's license to a person convicted under this section without receiving proof that the defendant has successfully completed the required program." (emphasis added). It could be logically argued that DPS is in compliance with sub-section (k) since the interlock restricted driver license is not, technically, a Class D driver license in the ordinary sense, but a highly restricted permit to operate a vehicle if and only if that vehicle is equipped with a functioning interlock device.
Further, and in-line with judicial reasoning as expressed by the traditional rules of statutory construction, when one part of a statute adds new statutory language, and the previously existing statutory language is in direct conflict with the new or amended language and cannot be reconciled, then the later enacted statutory provision controls over the earlier provision and the prior statute, or that part of the statute, is repealed by implication. Although repeal by implication is disfavored as a matter of law, in some instances there can be no other logical outcome and the later statute must take effect. The legislative history of the DUI statute over the past several years supports that interpretation. The revision of the state’s basic DUI statute to incorporate the interlock restricted driver license is part of the recent legislative history of this state for the past several sessions [Act 2011-613; Act 2013-189; and Act 2014-222]. It is reasonably clear that the Alabama legislature has basically given up on treatment plus long-term driver license sanctions as a method to control offender behavior and serve as a deterrent to future DUI offenses, but instead, wants the convicted DUI offender to be re-licensed with an interlock device in a reasonably short time following conviction so that the offender can lawfully drive back and forth to work and maintain employment, yet at the same time, be electronically monitored on a continuous basis. I believe that is most logical resolution to these two conflicting parts of the current DUI statute.
XIII: Does Act 2014-222 Have Retroactive Effect for Prior DUI Offenses? This attorney had a lengthy telephone conversation with Rep. Allen Farley, the bill's proponent/sponsor in the House of Representatives and Chairman of the Advisory Council from HR 401, during the drafting of this lesson plan. According to Rep. Farley, the legislature "intended" to give retroactive effect to prior DUI offenses and allow previously convicted DUI offenders to obtain an interlock restricted driver license. However, the legislative intent is not clearly stated and the act’s wording is ambiguous. The lead-in sentence to Section 2 starting on page 33 of Act 2014-222, now codified at sub-section (x) of 32-5A-191 states:
"(a) The amendatory language in Section 1 of this act to Section 32-5A-191, Code of Alabama 1975, authorizing the Department of Public Safety to stay a driver’s license suspension or revocation upon compliance with the ignition interlock requirement shall apply retroactively if any of the following occurs..." (emphasis added).
The retroactivity provision of Act 2014-222 is both confusing and ambiguous. Ordinarily, the word “shall” in a statute implicates a mandatory duty . However, the word “shall” does not have an exclusive, fixed, or inviolate connotation and its meaning in a particular case may be determined from the intent of the legislation as shown by the context within the word appears. In order for full retroactivity to take place in the context of this issue, a number of well-established principles of law would need to be ignored or over-ridden.
The revised 2014 DUI act lists five (5) enumerated conditions:
1) “The offender files an appeal with the court of jurisdiction requesting all prior suspensions or revocation, or both be stayed upon compliance with the ignition interlock requirement;
2) “The offender wins appeal with the court of jurisdiction relating to this section;
3) “The court of jurisdiction notifies the Department of Public Safety that the offender is eligible to have a driver’s license stayed;
4) “The Department of Public Safety issues an ignition interlock restricted driver license;
5) “The offender remains in compliance of ignition interlock requirements.”
From this attorney’s understanding of applicable law, condition (1) only applies if the appellant files a motion to stay within the time for taking an appeal. A criminal court loses jurisdiction over a case after 14 days in the municipal or district court and after 30 days in the circuit after final sentence is entered by the court. See, ARCrP 30.1(a) and 30.3 (a). See, also, Stevenson v. State, 75 So. 3d 1215, 1219 (Ala. Cr. App. 2012): “Typically a circuit court retains jurisdiction to modify a sentence for 30 days after the sentence is pronounced.” Utley v. State, 94 So. 3d 414, 416 (Ala. Cr. App. 2012). Under Alabama law, a trial court has no authority to issue a valid order to modify or set aside a sentence after the jurisdictional time has passed. However, if the installation of an interlock device is deemed a “collateral” issue, then the trial court may retain limited jurisdiction over collateral matters: “[W]hen an appeal is taken the trial court can do nothing with respect to any matter or question that is involved in the appeal and that may be adjudged by the appellate court; however, as an exception to the general rule, it is also recognized that the trial court may proceed in matters entirely collateral to that part of the case which has been taken up by the appeal.” State v. Herring, 950 So. 2d 1219 (Ala. Cr. App. 2006).
Condition (2) "wins an appeal" is not readily clear as to interpretation based on legislative intent. Note the term “court of jurisdiction” is not defined within the wording of Act 2014-222. Procedurally, the offender cannot “win appeal with the court of jurisdiction” because an offender cannot appeal his or her case from the trial court, the “court of jurisdiction” to that same court, the “court of jurisdiction.” If an appellant prevails on appeal to a higher court, then the case is sent back to the trial court for new sentence or new trial, or in the best outcome, the appellate court renders the appeal without remand. On remand to the trial court, the trial court does not have jurisdiction to re-try the case or to re-enter sentence to impose interlock unless such sanctions have been ordered by the appellate court. Trials de novo from the municipal court or district court to circuit court are not "technically" an appeal, but simply a trial de novo. However, that may be what the drafter(s) meant by "wins an appeal"
Condition (3) is another post-conviction modification of sentence. Comments in reference to condition (1) apply here as well. From a plain reading of (3), it appears that a convicted DUI offender could simply walk into the court where the sentence was imposed and request the court to order interlock as a condition to obtain an interlock restrict driver license. There is both statutory and decisional law prohibiting a court from issuing a modification of sentence after the 14 days/30 days has run. Therefore, it appears that condition (3) is a legal nullity.
Only condition (4) seems legally workable in light of pre-existing Alabama law and practice. Condition (4) simply states: “The Department of Public Safety issues an interlock restricted driver license.” Nothing further is stated in the revised statutory language. In light of the wording of the revised statute, it appears that DPS could establish an administrative process to enforce the post-conviction interlock requirement as a condition of re-licensing so that the time of suspension or revocation would coincide with the time periods listed in sections (f)-(h). That may be the remedy that Rep. Farley stated that in his opinion, the bill was drafted to allow DPS to issue an interlock restricted driver license to a previously convicted offender.
After the revised 2014 DUI statute took effect on July 1, 2014, the Department of Public Safety legal unit proposed a remedy to take into account the statutory language expressed in sentence (4) of the revised statute concerning the issuance of an interlock restricted driver license to a previously convicted offender. If a previously convicted DUI offender is still under a long-duration suspension or revocation order as a consequence of a prior DUI conviction and has not yet served the entire period of suspension or revocation, then the Department is agreeable to allow the licensee to file a Petition for Judicial Review under Code section 32-5A-195(q) for reinstatement of driver license. Once the Department is served with the complaint, the Department will respond with an answer and a suggested order that will “credit” the licensee for all time served up until that date, and measure how much additional time must be served pursuant to statute. If the licensee agrees to the proposed order and elects to install an interlock device, the Court will issue a court order requiring interlock installation for the remaining duration of license removal period remaining to be served and the Department will then issue an interlock restricted driver license. [Note: This proposed response by the Department of Public Safety legal unit does not – and cannot – address related license removal orders such as ‘Leaving the Scene’ (LSA), the mandatory six month driver license suspension for any drug offense conviction, including a DUI conviction entered under 32-5A-191 (a)(3) or (a)(4), or any other mandatory suspension or revocation order established under the Code of Alabama that may have entered concurrent with the DUI conviction.]
Additional Revisions to the Code as a Result of Act 2014-222:
1. Code section 32-5A-301 (The AST-60 form):
- The AST-60 form may be submitted electronically, as well as by mail. The five “business day” requirement remains in effect.
- The Department is no longer required to return the driver license of any person not held to the administrative suspension.
 The general rule of statutory construction is expressed in this well-known and often cited paragraph:
“In interpreting the provisions of an Act …. a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent. Lewis v. Hitt, 370 So.2d 1369 (Ala. 1979) . The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Ex parte Holladay, 466 So.2d 956 (Ala. 1985) . Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. Coastal States Gas Transmission Co. v. Alabama Public Service Commission, 524 So.2d 357 (Ala.1988) ; Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So.2d 1219 (Ala.1984) . If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance Co., 431 So.2d 534 (Ala.1983) ; Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979) .” See, Tuscaloosa County Comm. v. Deputy Sheriffs Association of Tuscaloosa County, 589 So. 2d 687 (Ala. 1991)