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. As example, the trial court is required to impose double minimum punishment as a penalty if you are convicted under certain “aggravating circumstances.” Over the past several years, DUI penalties have increased substantially. In 2011, in 2014, in in 2018, and again in 2021, the Alabama legislature revised many of the state’s DUI and DUI-related statutes to provide for more severe punishment and greater supervision over the DUI offender. The most current version of the state’s DUI laws took effect on July 1, 2021. Under the current DUI law, even for most first offense DUI cases, an ignition interlock device is required to be installed on your vehicle if convicted of DUI. It is a Class A misdemeanor offense if caught operating a motor vehicle without the required ignition interlock installed.
Every DUI arrest has serious legal consequences and a DUI conviction has very severe and often lifetime consequences. Contrary to the mistaken impression of some, a DUI conviction cannot be expunged. Act 2021-482, which took effect on July 1, 2021, now allows for expungement of minor misdemeanor convictions not involving a crime of violence. However, specifically excluded from Act 2021-482 are DUI and reckless driving offenses. Code section 15-27-1(b)(7) states regarding which offenses are subject to an expungement: “The conviction is not a serious traffic offense, as provided in Article 9 of Chapter 5A of Title 32.” [Article 9 of Chapter 5A includes reckless driving (Code section 32-5A-190); Homicide by vehicle (Code section 32-5A-190.1); DUI (Code section 32-5A-191); and Boating Under the Influence (Code section 32-5A-191.3)]. Since any DUI conviction carries a permanent and lifetime criminal record, every DUI case must be taken seriously, and the best legal counsel sought.
In Alabama, a DUI arrest triggers both a criminal case and an Alabama Law Enforcement Agency (ALEA) administrative case. Because even a “first offense” DUI arrest can lead to substantial fines, court costs, potential jail time, mandatory probation, and mandatory driver license suspension, anyone arrested for a DUI offense needs a qualified and experienced attorney protecting their rights.
Although both cases require expert legal help, the ALEA 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 of the arrest date, the driver license suspension will automatically take effect 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 suspended1.
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 administered2. 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 instruments3, and are the property of the Department of Forensic Science, an independent state agency. Both the Draeger instrument and its’ replacement, the Intoximeter DMT, are unique among breath testing devices in that the instruments analyze the tested subject’s 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 state’s breath testing instruments are highly accurate testing devices. Only an attorney having completed advanced training in breath testing technology will be capable of spotting potential error in the breath test.
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 is a 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 officer4. 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 time5. 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
The offense of DUI is classified as a misdemeanor if the current offense is the first, second, or third offense within the past ten years6. DUI is a felony crime if the current offense is the fourth or subsequent DUI offense within the past ten years, or was previously convicted of a felony DUI offense without regard to the time period. Alabama’s “look-back” period for DUI offenses is ten years, as measured from the date of sentencing of the previous conviction to the current offense arrest date. 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 ten years since the second arrest will be treated by the court as a first offender. However, if the second DUI offense occurs within ten years of the first conviction, it will be prosecuted as a second offense.
Alabama DUI penalties have increased significantly in recent years. In 2011, the Alabama legislature passed two “get tough” on DUI bills. The “double minimum punishment” statute, Act 11-621, added an entirely new sub-section to the DUI statute. That sub-section significantly increased the punishment inflicted on a convicted DUI offender if the blood alcohol concentration was .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.” 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.
In addition to the “double minimum punishment” law, in 2011 the Alabama legislature enacted the state’s first ignition interlock act, which required 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 Act was substantially revised by the 2014 legislature by enactment of Act 2014 – 222 with an effective date of July 1, 2014. The 2014 revised ignition interlock statute added new driver license sanctions for the convicted offender and additional probation supervision and control process by the sentencing court. In 2018, the legislature again revised the interlock provisions of the DUI statute by requiring the installation of an interlock on the vehicle of all persons entering an approved ‘Pre-Trial Diversion’ program.
The current DUI statute requires the installation of an ignition interlock device on a designated motor vehicle of a person convicted of first offense DUI under most instances7 and all second and subsequent convictions within the past ten 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 to operate any motor vehicle without an interlock device. Any person subject to the ignition interlock requirement who operates a vehicle without the device installed is subject to immediate custodial arrest and the vehicle will be towed and impounded. In addition, under the revised 2018 statute, an additional year of interlock is required if the convicted offender is operating a vehicle at any time when the interlock device is required and is ordered to submit to an evidentiary breath test and refuses testing.
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 court8. 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.
If the motorist submitted to a breath test, and the result was less than .15% breath test, upon conviction the motorist’s driver license will be suspended for 90 days by ALEA unless the convicted motorist “elects” to install an ignition interlock device and maintain the interlock device for a period of ninety (90) days. The motorist will be issued an “interlock restricted” driver license and may only operate a vehicle if an operable interlock device is installed on the vehicle. If the breath test was .15% or greater or the motorist refused breath testing, the convicted offender must install an interlock device and obtain an interlock restricted driver license. Upon proof of installation of an approved interlock device, the remainder of the 90 day suspension is stayed. Any remaining period not served is commuted after successful completion of the one year interlock requirement.
A second DUI arrest within ten 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 time and a double fine of not less than $2,200.
Under terms of the latest revision of the state’s DUI statute, the convicted motorist is required to install ignition interlock for two-year years but must first serve 45 days of driver license removal. After serving 45 days of license removal (either suspension entered under the Administrative License Suspension Act or revocation as a collateral consequence of a second offense conviction), the convicted “second offense” defendant is then eligible to install an interlock device and forego the remainder of the mandatory license removal period. [Note: This revision to the DUI law does not eliminate the requirement to post SR-22 certificate of insurance and maintain SR-22 insurance for a period of three (3) years from the date of any revocation order.] Upon proof that the interlock has been installed and the offender has obtained an interlock restricted driver license, the remainder of the license removal period is stayed and any remaining license removal period not served will be commuted upon completion of the two year interlock requirement. In addition, the driver will be required to complete the Level II or Level III treatment program.
A third DUI arrest within the past ten 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 offender 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 Alabama Law Enforcement Agency will revoke the driver license of the motorist for a period of three years. The mandatory removal of driver license is reduced to 60 days of license revocation, if an approved interlock device is installed. If the convicted offender installs an interlock device, then the remainder of the three year revocation order is held in abeyance. Any remaining revocation order not served will be commuted upon successful completion of the three year interlock period.
Probation and Supervision: Under Alabama law, every misdemeanor conviction authorizes the sentencing court to impose a term of probation for up to two years. If the convicted offender 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. Under the latest revision to the DUI statutes, probation remains in effect beyond the normal two year duration if the interlock requirement required by law has not been completed.
The fourth DUI arrest within ten 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 trial 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 must be sent to the state penitentiary to serve the sentence. The driver also faces a fine of not less than $4,100 and up to $10,100 and a five-year driver license revocation. The accused will also be required to attend a court approved substance abuse program. Under the 2018 revision to the DUI law, the mandatory four year interlock requirement is maintained, but after one year of license revocation, the convicted offender can choose to install an approved ignition interlock device and forego the reminder of the five year revocation order. Upon proof of successful installation of the interlock device and proof that the convicted offender has obtained a valid “interlock required” driver license, any remaining revocation period not served is commuted upon successful completion of the required four year interlock period.
- Note: This law, called the Administrative License Suspension Act, only deals with individuals holding an Alabama driver license or with an Alabama residential address. Persons arrested for DUI holding an out-of-state driver license and who are not physically residing in the state of Alabama are not subject to the license removal procedure established under the Administrative License Suspension Act. ↩︎
- 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. ↩︎
- The State of Alabama is presently transitioning from the Draeger 7110 instrument to the Intoximeter, Inc. DMT ‘dual analytical’ instrument. However, both instruments are virtually identical in operation and both are presently in use in the state of Alabama. ↩︎
- See, Act 2021-498 effective July 1, 2021 which amends current Implied Consent statute [Code 32-5-192] from alcohol only to “any impairing substance or substances within a person’s system.” This new Act removes urine from testing and replaces with “oral fluid” – a new concept in Alabama law enforcement. This Act further authorizes multiple tests (blood, breath, & oral fluid) at direction of officer. Additionally, the Act authorizes use of a “court order” to obtain test samples if the arrested subject refuses to consent to testing. Act 498 expands Implied Consent refusal from alcohol only to “alcohol or any impairing substance.” ↩︎
- 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. ↩︎
- Act 2018-546 eff. July 1, 2018 changed the look-back provision of the DUI statute from five years to ten years. The measuring period is the date of the previous conviction “sentencing date” to the date of the current offense. ↩︎
- The only DUI conviction not required to install ignition interlock is a ‘first offense’ DUI with a test result of .14% or less. In that instance, the convicted offender can choose to accept the 90 day suspension of driver license and avoid the interlock requirement or can “elect” to install the interlock device for a period of ninety (90) days and continue to operate a vehicle with the “interlock restricted” driver license. ↩︎
- Note: If convicted in a municipal court, the municipal court has the authority to impose a fine of up to five thousand dollars ($5000) for any misdemeanor DUI offense. However, most municipal court follow the fine schedule set forth in the Alabama Code for state courts. ↩︎
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