Dealing With Specific Issues of the Alabama Administrative License Suspension Act
The Administrative License Suspension tracks the language of the Implied Consent law located in 32-5-192 in that only a lawful arrest for DUI will support a license suspension. Due to the exact wording of the Implied Consent Law, the Administrative License Suspension statute applies only to alcohol related offenses and only to arrests for DUI made on the “public highways of this state.” Arrests made on private property for DUI will not support a license removal action1.
The Administrative License Suspension statute is applicable only to breath tests with the results of .08% or higher and to breath test refusals, and is applicable only to Alabama driver licenses. Any breath test of .07% or less, or any controlled substance DUI arrest, or any out-of-state driver license has no application and any seizure of the driver license by the arresting officer is invalid.
The arresting officer must promptly complete the form used to process the Notice of Intended Suspension, the AST-60 form. The AST-60 must be sworn to and notarized and submitted (or mailed and postmarked) to the Department of Public Safety within five business days after the day of the arrest, excluding weekends and state holidays. Any delay in submission, or failure to submit a notarized form will render the license removal process invalid.
The licensee is entitled as a matter of right to a due process pre-suspension administrative hearing before an agent or officer of the Department of Public Safety. The licensee must make written application for a hearing within days following receipt of the AST-60 form. The hearing must be conducted within 30 days following receipt of the request for review. Failure to request an administrative hearing results in waiver of a pre-suspension hearing. However, if the request for a hearing is received after the 10 day period has expired, “A person may request an administrative review at any time within 90 days of the notice of suspension…” Code of Alabama, 1975, section 32-5A-306 (e).
The sole issues at the administrative hearing are: 1) whether the subject was lawfully arrested for the offense of DUI and ordered to submit to a breath test; and 2) if the results of the breath test were .08% or greater or if the subject refused to submit to the breath test. The hearing officer shall order the suspension placed into effect if both these two points are met. There are no other issues at the hearing. The hearing officer is authorized to use the sworn and notarized AST-60 form in lieu of live testimony of the arresting officer.
If the Department of Public Safety issues a suspension order after the administrative hearing is concluded, the licensee will have 30 days from date of the order to file an appeal for judicial review in the county wherein the arrest was made (and presumably, where the breath test was administered); not the county of the licensee’s residence2. Filing of a petition for judicial review does not operate as an automatic stay; a separate stay order must be filed and the order signed and entered by the circuit court in order to stay any driver license suspension.
Caveat! In view of the recent sovereign immunity cases issued by the Alabama Supreme Court, the action must be styled as an action against the Director of Public Safety in his official capacity, and not as an action against the state of Alabama or against the Department of Public Safety as an agency of state of Alabama3.
If the arrested subject submits to the breath test with results of .08% or greater, and the administrative license suspension goes into effect, and the subject is later acquitted of DUI, or the case is dismissed or nol prossed, the Director of Public Safety must remove the entire license suspension and remove any entry of the license suspension from the motorist’s driver record. See, Code of Alabama, 1975, section 32-5A-304 (c). However, this procedure does not apply to breath test refusals. A license suspension based on test refusal may be modified and reduced, in the discretion of the Director, only if the person is acquitted of the charge. See, Code of Alabama, 1975, section 32-5-192 (c).
The licensee will receive only one license removal action as a consequence of the Administrative License Suspension, and not a second suspension (or revocation) if subsequently convicted of DUI. All license removals as a consequence of the Administrative License Suspension statute are suspensions, and not revocations.
This is an extremely important concept in view of the Department of Public Safety’s method of “stacking” license removal actions. The Department uses the first in- first recorded method of license removal. If the licensee is suspended as a consequence of the Administrative License Suspension statute, and the motorist is subsequently convicted of ‘second-offense’ DUI, which ordinarily would require a one year license revocation, the licensee will face only one year’s suspension, and not a revocation.
In practical terms, the license suspension period will start 45 days after issuance of the Notice of Intended Suspension, and generally well before the case is adjudicated. Therefore, the DUI statute’s requirement for revocation of license after second, third, and fourth DUI conviction is abrogated by the express terms of the Administrative Licensee Suspension statute. If, however, the AST-60 form is not processed correctly, or the licensee not held to the suspension for whatever reason, and the individual is later convicted of the DUI offense, the suspension or revocation periods established in sections (e), (f), (g), and (h) of 32-5A-191 will apply.
1 The motorist’s operation of a vehicle on the public highways can be proven by circumstantial evidence; the fact that a vehicle is located on private property when the arrest is made is not controlling. If there is sufficient evidence that the vehicle had operated on the public highways immediately prior to the arrest, and this may be shown circumstantially, then the Implied Consent law is not violated. Brown v. State, 893 So. 2d 1274 (Ala. Cr. App. 2004).
2 Ordinarily, petitions for judicial review are filed in the licensee’s county of residence or in Montgomery County, the county of the Director’s office. In the case of Administrative License Suspension hearings, the appeal must be filed in the county where the arrest was made.
3 In the recent case of Alabama Department of Public Safety v. Ogles, 14 So. 3d 121 (Ala. 2009), the Alabama Supreme Court held that Article I, section 14 of the Alabama Constitution of 1901 “affords the State and its agencies an “absolute” immunity from suit in any court.” Citing Haley v. Barbour County, 885 So. 2d 783, 788 (Ala. 2004).
Taking the language of sovereign immunity to the furthest limits of construction, the Department’s legal staff has recently taken the position that any driver license appeal filed under Title 32 of the Code of Alabama must be dismissed if the Department is named as the defendant, and that only the Director of Public Safety may be the properly named defendant.
The Court in Ogles noted: “The exceptions to the doctrine of sovereign immunity are relevant only as they relate to claims against State officials in their official capacities, not as they relate to the State agency or the State itself.” Ogles at 14 So. 3d 125.