Alabama’s New DUI Act

Patrick Mahaney
Law Office of Patrick Mahaney
8191 Seaton Place
Montgomery, Alabama 36116

The Ignition Interlock Statute: Alabama’s first ignition interlock statute became effective on September 1, 2012, but was substantially revised in 2014 by enactment of Act 2014-222. First enacted by the 2011 Alabama legislature, the ignition interlock statute added significant post- conviction supervision and control process over the convicted DUI offender by the sentencing court. All DUI convictions entered by an Alabama court on or after September 1, 2012 were subject to the ignition interlock statute. However, shortly after the enactment of Act 2011-613, the 2011 revision to the state’s DUI statute containing the interlock provisions, it became apparent there were “gaps” and contradictory language in the interlock requirement and co-existing statutes within the Code of Alabama, thus requiring a comprehensive revision of the state’s DUI statute so the ignition interlock requirement could be uniformly applied to all DUI convictions. Act 2014-222 is intended to correct and harmonize the ignition interlock requirement with other parts of the Code of Alabama dealing with driver license sanctions, probation requirements, funding and monetary issues concerning the interlock device, and related areas of DUI law.

The Original Interlock Statute : Act 2011-613 rewrote the state’s existing DUI statute and required 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, as limited by the “five year” look-back provision of sub-section (q). [Note: sub-section (q) in the prior statute is now sub-section (p) in the 2014 statute.] The 2011 legislative session passed two different, yet over-lapping DUI acts that were signed into law on the same day: Act 11-613 and Act 11-621. As noted, Act 11-613 was the “ignition interlock” statute while Act 11-621 was the “double minimum punishment” statute. Act 11-613 therefore had to be construed in conformity with existing 32-5A-191, as amended by Act 11-621. Subsequently, the Attorney General issued two formal opinions to resolve conflicts in statutory language – Attorney General Opinion 2012-0011 (November 8, 2011) and Attorney General Opinion 2012 – 087 (September 5, 2012). In addition, Act 11-613 added an entirely new section of law to the Code of Alabama, 1975 by adding section 32-5A-191.4, the “interlock enforcement statute.”

Act 11-613 amended the previous 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 four 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.”

However, in 2012, the Alabama legislature amended the ignition interlock part of the 2011 statute prior to the statute taking effect on September 1, 2012 and removed the “blood alcohol concentration of 0.15% or greater” part of the previous year’s Act. See, Act 2012-363 effective May 4, 2012. The 2012 amendment was enacted into law prior to the implementation of the state’s interlock requirement, leaving only the breath test refusal, child under 14 as a passenger, and the accident with injury situations requiring an ignition interlock on first offense.

In May 2013, the Alabama legislature passed House Joint Resolution 401 [Act 2013-189] which established the “ Alabama DUI Prevention and Ignition Interlock Advisory Council.” The joint resolution was specifically created to work out the deficiencies in prior Act 11-613 relating to ignition interlock reporting, accounting for specified funds, probation issues, and driver license sanctions. On October 29, 2013, the Council met for the first time. Later in 2013, a second meeting was held and a preliminary report was issued. Although the report contained several recommendations, probably the most important part of the report was the recommendation to end the long-duration driver license suspension or revocation sanctions entered after conviction of a DUI offense and to replace those sanctions with an across-the-board interlock requirement.

Act 2014 – 222 “The DUI Act of 2014”

Act 2014-222 was signed into law by Gov. Bentley on April 2, 2014 with an effective date of July 1, 2014. The act was primarily the result of the collaborative efforts of the Alabama DUI Prevention and Ignition Interlock Advisory Council established by HJR 401 where a cross-section of representatives of the Alabama legislature, judiciary, prosecutorial and law enforcement agencies, and members of the legal profession all participated in recommending revisions to the Code. Amendments were made to sections 32-5A-191, 32-5A-191.4, 32-5A-301, and 32-5A-304 of the Code of Alabama, 1975. The primary changes are outlined herein:

I. Driver License Sanctions: The duration of suspension or revocation of driver license and driving privilege following conviction for DUI is substantially reduced if the convicted offender installs an approved interlock device --

First Offense DUI – 32-5A-191(e)

a) with a Breath Test

Previous : 90 day suspension of driver license or privilege following conviction, unless previously suspended under provisions of the Alabama Administrative License Suspension Act. [See, A.G. Op. 2012-0011.]

New: The convicted offender can elect to install an ignition interlock device and maintain it for six months after obtaining an interlock restricted driver license from the Department of Public Safety, the entire 90 day period of suspension will be stayed.

b) without a Breath Test (Test Refusal) or other ‘Aggravating Factor’

Previous: Mandatory interlock requirement for two years from date of conviction after the full 90 days of license suspension served.

New: The convicted offender must serve a minimum of 45 days of license suspension following conviction before they are eligible to install an interlock device and receive an interlock restricted driver license. After 45 days of license suspension, and upon proof of installation of an approved interlock device, the remainder of the 90 day period of suspension is stayed. Any remaining period not served is commuted after successful completion of the two year interlock requirement.

Second Offense DUI – 32-5A-191(f)

Previous: For a second DUI offense within a five year period, the person so convicted was required to have an ignition interlock device installed for a period of two years from the date of driver license re-issuance. Ordinarily, a second offense DUI requires the Director to impose a one year license revocation order. The full period of license revocation had to be served before the DUI offender was eligible for re-licensing. The requirement to install an ignition interlock after second offense DUI conviction was not contingent on any enumerated factor, such as outlined in sub-section (e).

New: The mandatory two-year interlock requirement is maintained, but the one year revocation order is amended. Under the terms of Act 2014-222, the convicted offender after serving 45 days of license revocation is then eligible to elect to install an interlock device and forego the remainder of the one year revocation period. [Practitioner’s Note: The 2014 revision to Code section 32-5A-191 does not eliminate the requirement to post SR-22 certificate of insurance and maintain SR-22 insurance on file with the Department of Public Safety for a period of three (3) years from the date the revocation order in order to obtain a valid driver license. See, Code section 32-7-31. However, if the convicted offender was previously suspended under the Administrative License Suspension Act, then after serving 45 days of suspension, the offender is then eligible for an interlock restricted driver license without the SR-22 insurance requirement.] Upon proof that the interlock has been installed and the offender has obtained an interlock restricted driver license, the remainder of the one-year revocation order entered under Code section 32-5A-191(f), or suspension order entered under Code section 32-5A-304, whichever is applicable, is stayed and any remaining revocation or suspension period not served will be commuted upon completion of the two year interlock requirement.

Third Offense DUI – 32-5A-191(g)

Previous: For a third DUI offense within a five year period, the convicted offender was required to have an ignition interlock installed on a designated vehicle for a period of three years from the date of driver license re-issuance. [Note: The mandatory revocation period for third offense DUI - without reference to the “five year look-back” period - is a three year revocation order.] Under the previous statute, the convicted offender was required to serve the entire three year period of revocation before eligibility for re-licensing. [Practitioner’s Note: After third offense DUI within a five year period, or fourth offense within a ten year period, the Department of Public Safety requires an ‘interview and Investigation’ (or ‘I&I’) as a condition precedent to re-licensing. See, Code of Alabama, 1975, section 32-6-7(4).]

New: The mandatory three-year interlock requirement remains, but the mandatory removal of driver license is reduced to 180 days of license revocation or suspension, whichever is applicable, if an approved interlock device is installed. If the convicted offender installs an interlock device, then the remainder of the three year license removal order is held in abeyance. Any remaining time not served will be commuted upon successful completion of the three year interlock period.

Fourth Offense DUI – 32-5A-191(h)

Previous: For a fourth offense DUI within a five year period, the convicted offender was required to have an ignition interlock installed for a period of five years from the date of driver license re-issuance.

New: The mandatory five year interlock requirement is maintained, but after one year of license revocation or suspension, whichever is applicable, the convicted offender can choose to install an approved ignition interlock device and forego the reminder of the five year license removal order. Upon proof of successful installation of the interlock device and proof that the convicted offender has obtained am interlock restricted driver license, any remaining time not served is commuted upon successful completion of the required five year interlock period.

II. Dealing with the .15% Offender (first offense):

Previous: Under previous Code section 32-5A-191(i), a “first offense” DUI offender with a breath test result of 0.15% or greater was required to be sentenced to “double minimum punishment” and the Director of Public Safety was required to revoke the driver license for a one year period.

New: The “double minimum punishment” provision remains in effect for mandatory fine and jail term (if applicable), but the driver license sanction of a one year revocation order is removed and replaced by the requirement that the first offense offender with a breath test result of 0.15% is now mandated to install and maintain an ignition interlock device for a period of two years.

Under terms of the new DUI statute, the convicted first offense DUI offender with a .15% or higher breath test is immediately eligible for re-licensing without the 45 day mandatory suspension required for breath test refusals or other ‘aggravating factors.’

Note : The “double minimum punishment” sanction applying to fines for first, second, third, and fourth offense remains in effect, as does the mandatory incarceration sanction for all second, third, and fourth offense DUI convictions where the conviction is predicated on a breath test result with a 0.15% BAC or greater. See, revised Code section 32-5A-191(i).

III. Changes in Fees:

Previous: Sub-section (q) of Act 11-613, codified at 32-5A-191(s) of the prior statute, imposed additional registration and license issuance fees on all convicted offenders who were required to install an ignition interlock device. A fee of $75 per month for the first four months the driver license is suspended ($300 total) was required to be paid to the sentencing court, 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

Attorney General Opinion 2012 - 087 issued September 5, 2012, to the Hon. Alyce M. Spruell, Director of the Administrative Office of Courts, the Attorney General opined that the $75 fee established under section 32-5A-191(s) did not apply to convicted offenders who are revoked, but only to “suspended” licensees. The Attorney General held that the statutory language limits the $75 fee to be required only during the three month period the license issuspended. As the Attorney General noted, conviction of DUI for second, third, fourth, or subsequent DUI offenses all require a revocation action on part of the Director of Public Safety; therefore the $75 per month fee was inapplicable to offenders whose license was revoked by operation of law.

New: Any person ordered by the court to have an interlock device installed or elects to have one installed for the purpose of reducing the period of suspension or revocation shall pay to the sentencing court following conviction or the first four months following installation of the ignition interlock device $75 per month, without regard to the type of license removal order, which shall be divided as follows:

  • 45% to the Alabama Interlock Indigent Fund
  • 20% to the State Judicial Administrative Fund
  • 20% to the Highway Traffic Safety Fund [Department of Public Safety]
  • 15% to the District Attorney’s Solicitor Fund

In addition, under sub-section (u)(1) of the latest revision, the Department of Public Safety is authorized to set a license issuance fee of $150 for a special “ignition interlock required” designated driver license to indicate the operator is required to maintain an interlock device on the vehicle in operation. The $150 license issuance fee will be apportioned 15% to the general fund of the county where the person was convicted and 85% to the state General Fund. Upon application for re-licensing to obtain a standard Alabama driver license, the Department is authorized to set a license issuance fee of $75. [Note: The $75 license re-issuance fee is in addition to the presently required $275 “reinstatement fee” to clear the license status to valid. See, Code section 32-6-17.]

IV. Additional Vehicles Authorized:

Previous: Prior to re-licensing, the convicted offender was required to identify to the sentencing court the designated vehicle, by vehicle identification number (VIN), in which the device was to be installed. Under the prior DUI statute, the convicted offender was limited to only one designated vehicle, and the offender was therefore prohibited from operating any other vehicle.

New: The convicted offender may now designate additional motor vehicles upon which an interlock device is installed. Under the revised ignition interlock enforcement statute, the convicted offender is not limited to only one vehicle and may utilize any number of vehicles, provided that each vehicle is equipped with a functioning interlock device. See, revised Code section 32-5A-191(s).

V. New Duties on Judges: The trial court is now required to notify the Department of Public Safety if the person convicted is required to install and maintain an interlock device as part of the court-imposed sentence. The Court is also required to notify DPS if the offender is not complying with the interlock requirement. See, revised Code section 32-5A-191(k)(2). The Department shall not re-issue a driver license until satisfactory proof is presented that the offender is in compliance with the court’s orders regarding ignition interlock.

VI: The $100 Chemical Test Fee Applies to All DUI Cases: The mandatory assessment of $100 per conviction has been amended under the revised statute so that every DUI arrest resulting in a conviction or any pretrial diversion program or court ordered deferral program in any circuit, district, or municipal court must pay the $100 assessment for the DFS Chemical Test program. See, revised Code section 32-5A-191.4(m).

VII. Probation Revocation for Non-Compliance Changed from “Shall” to “May”:

Previous: Under the current law, the failure of an offender to provide proof of installation of an interlock device within 30 days of requirement resulted in a mandatory probation revocation order.

New: The court retains the authority to order probation revocation if the defendant fails to install an ignition interlock within 30 days of the defendant becoming eligible to receive an interlock-restricted driver license from the Department of Public Safety. See, revised Code section 32-5A-191(i).

VIII: $75 Monthly Fee for Non-Installation is Expanded to Full Duration of Term Interlock Required:

Previous: The previously required $75 per month fee required of any defendant that did not own an automobile or otherwise have an interlock device installed on a designated vehicle to be paid to the sentencing court for four months following conviction has been amended.

New: The convicted DUI offender that does not install an interlock device on a vehicle is now required to pay $75 per month to the Alabama Impaired Driving Prevention and Enforcement Fund for the entire duration the defendant is required to install an interlock device. The fund shall be used exclusively by the Department of Public Safety for impaired driving education and enforcement. The defendant shall remain unlicensed and shall serve the entire license suspension or revocation period. See, revised Code section 32-5A-191.4(i)(6).

IX: Interlock Provisions Do Not Apply to Any Person Under Age 19:

Previous: This issue was not addressed.

New : No interlock provision in Code section 32-5A-191 or 32-5A-191.4 shall apply to any person who commits the offense of DUI while under the age of 19 and adjudicated in a juvenile court, unless otherwise ordered by the court. [Note: This new section is intended to remove interlock compliance from being the duty of the parent. However, the disposition of DUI cases where the defendant is aged 18, but not yet 19, would ordinarily be disposed in a district or municipal court, and not the juvenile court.]

X: Administrative License Suspension Statute Remains in Effect, but “Credit” Given Toward Time Served:

Previous: If an Alabama licensee is arrested for DUI and submits to a breath test of .08% or greater, the state shall issue a suspension notice to the licensee under the terms of Code section 32-5A-304. Under the previous statute, if later convicted of the underlying offense of DUI, “…. no period of suspension or revocation shall be imposed…” [See, prior Code section 32-5A-304(c)].

New: The Alabama Administrative License Suspension Act remains in effect, but full “credit” shall be afforded any time served. The revised Act now reads:

“If a license is suspended under this section for having .08 or more by weight of alcohol in the blood 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 giving credit for suspension time served toward the duration of suspension or revocation required under Section 32-5A-191.”

Important Practitioner Note! The Alabama Administrative License Suspension Act remains in full effect and, in the substantial majority of cases where a breath test was taken with a .08% or greater result or the officer’s affidavit cites a breath test refusal, the Department of Public Safety will proceed with an administrative suspension of license and hold the licensee suspended for 90 days for a first “contact” during the past five years, one year if there is one prior contact in the past five years, three years if there are two or three contacts in the past five years, and five years if there are four or more contacts in the past five years. [Code section 32-5A-304(b)(1) – (4)]. There is no provision under the revised act to allow a licensee held to an administrative suspension to elect to install an ignition interlock device in lieu of the mandatory period of suspension. Further, if the licensee refuses a breath test and is subsequently convicted of the offense, a minimum of 45 days of suspension must be served prior to obtaining an interlock restricted driver license following conviction.

Since ignition interlock can only be installed pursuant to a court order, under the revised statute in order to avoid loss of a driver license and driving privilege under the Administrative License Suspension Act, the DUI defendant would have to enter a plea of guilty to the underlying DUI offense before the administrative suspension order took effect (normally, 45 days after the date of arrest) and elect to install an ignition interlock device following entry of sentence in order to maintain a valid Alabama driver license, albeit an interlock restricted driver license. Of course, this technique to avoid loss of driver license would only be applicable for a “first offense” DUI offender, since second and subsequent DUI offenses all carry a mandatory license removal period of 45 days to one year, depending on the number of prior offenses.

XI. Penalties for Non-Compliance and Operating a Vehicle Without the Required Interlock Device Remain the Same: In sub-section (i)(1) of section 32-5A-191.4, any person who operates a vehicle without an ignition interlock device when requiredshall 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(c). [Section 32-6-19(c) is the “tow and impound” statutory authority for 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.

Attorney General Opinion 2012 – 0011: On November 8, 2011, the Attorney General issued a formal opinion at the request of the Department of Public Safety in regard to the conflict between the Alabama Administrative License Suspension Act, located at Code section 32-5A-300 et. seq., and the newly enacted “double minimum punishment” statute – section 32-5A-191 (i) - that took effect on September 1, 2011. The Attorney General held if the license or privilege was suspended administratively under the Administrative License Suspension Act, there is no additional period of suspension or revocation to be imposed if subsequently convicted of DUI. However, if the license or privilege was not suspended administratively (AST-60 was not submitted timely; affidavit was defective, etc.), then the Director is required to impose the full one year revocation for first offense conviction as required by statute for any conviction with a breath test result of .15% or greater; otherwise the standard 90 day suspension will apply if not subject to “double minimum punishment.” Further, the Director of Public Safety should not impose the one year period of revocation specified under Code section 32-5A-191(i) for a DUI conviction with a test result of .15% or greater if the administrative license sanction has already been ordered into effect.

Practitioner’s Note : The enactment of revised Code section 32-5A-191(i) effectively negates much of A.G. Opinion 2012-0011 in light of the substantial statutory revisions dealing with the .15% convicted offender. Under the revised 2014 DUI act, the .15% “first offender” will not serve any mandatory license removal period, but will be required to install an ignition interlock for two years as a condition for obtaining a valid interlock restricted driver license. Further, the revised act takes into account and gives “credit” for any suspension time served under Section 32-5A-304.