Alabama DUI Defense
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A DUI charge serious matter. A DUI conviction in Alabama can result in jail time, loss of driver license, and have detrimental consequences for your current employment and the future of your career. If you have been arrested for DUI, you need an attorney with experience defending against DUI charges.
Frank Ward has represented hundreds of people charged with DUI in Alabama. He has helped many of those clients avoid DUI convictions, many in situations that seemed hopeless. He wants to help you too.
Mr. Ward is recognized for his leadership in the field of DUI defense. He is a co-author of the Alabama DUI Handbook, a comprehensive reference book on Alabama DUI defense for attorneys. He became a member of the National College for DUI Defense since 2010. He has given presentations to other Alabama attorneys on the subject of Alabama DUI defense.
If you are facing a DUI criminal charge in Alabama, don't despair. There is hope. Let Mr. Ward put his experience to work for you.
Frequently Asked Alabama DUI Questions
Where is Alabama’s DUI law found?
Every state has its own Driving Under the Influence (DUI) statute, although some states refer to the offense by slightly different names, such as Driving While Intoxicated (DWI), Operating Under the Influence (OUI), or Operating While Intoxicated (OWI). Alabama’s DUI statute is found in Section 32-5A-191 of the Code of Alabama.
What are the ways a person can be charged with DUI in Alabama?
The offense of DUI in Alabama is charged in one of five different ways.
1. DUI – Illegal Blood Alcohol Concentration
Alabama’s DUI law lists several different ways a person can be charged with driving under the influence. A person can be charge with driving while having an illegal blood alcohol concentration. This is illegal blood alcohol level generally a .08% BAC or higher. However, for certain groups of people – those under 21 years of age, school bus or day care drivers, or drivers of commercial motor vehicles (CMVs), there are even lower limits.
2. DUI – Under the Influence of Alcohol
In addition to being charged with having an illegal blood alcohol limit, a person can also be charged with simply driving under the influence alcohol. This is generally how a person is charged with DUI if he or she refused to take the breath test “offered” at the police station or jail. However, it is also common to see DUI charged in this way for cases where a breath test was performed or even a blood test was administered.
3. DUI – Under the Influence of a Controlled Substance
While people most commonly think of DUI in the context of alcohol, drug or medication related DUI charges are also very common. Alabama maintains a Controlled Substance List. If the police believe a person in driving under the influence of a substance on this list, they will typically charge the person with driving under the influence of a controlled substance. Marijuana is probably the most common controlled substance that forms the basis of a DUI arrest. However, prescription medication DUIs are very common as well. Many people are surprised to find that having a prescription for a medication is not a defense to a controlled substance DUI charge. Even with a prescription, if the substance renders you uncapable of safely operating a vehicle, then you can be charged with DUI.
4. DUI – Combined Influence of Alcohol and a Controlled Substance
Police typically charge a person with a combined influence DUI if they suspect the person has been using both alcohol and a substance on the controlled substance list. A person can be convicted for a combined influence DUI even if the amounts of alcohol and controlled substance in their system, taken separately, would be insufficient to render them unsafe to drive. The relevant question in these cases is if the combined effect is enough to render their operation of a motor vehicle unsafe.
5. DUI – Any Substance
Alabama’s DUI statute has a catchall provision for cases where the police believe a person is under the influence of something that is not alcohol or on the controlled substance list. Alabama enacted this subsection of the DUI statute to prevent the loophole of people driving under the influence of new drugs or substances that affect a person’s safety, but which have not been added to the controlled substance list for whatever reason. Alabama’s courts have made clear that it is improper to use this section to charge an alcohol DUI.
Do you have to actually drive to be guilty of DUI?
No. While the word “drive” in right there in the name of “Driving Under the Influence,” in Alabama you can still be found guilty of DUI even if you never drove your vehicle. Alabama’s DUI statute makes it a crime not just to drive but also to “be in actual physical control of any vehicle” under the influence. What constitutes actual physical control? The answer used to be much clearer back in the mid-1980s than it is now. Back then Alabama relied on a three-part test to determine if a person was in actual physical control. See, Key v. Town of Kinsey, 424, So.2d 701 (Ala. Crim. App. 1982). Under that test the prosecution had to prove the accused person had actual or constructive possession of the vehicle’s key or that no key was needed. The prosecution also had to prove that the person had been behind the wheel and that, but for being intoxicated, the person had the ability to operate the vehicle. Finally, they had to prove that the vehicle was operable to some extent. The strict reliance on this three-part test came to an end in 1986 when the Alabama Supreme Court held that Alabama courts should instead look at the “totality of the circumstances” when determining if a person was in actual physical control. Cagle v. City of Gadsden, 495 So. 2d 1144 (Ala. 1986).
Is it illegal to “drink and drive”?
No. It is not illegal to consume alcohol, then drive. However, it becomes illegal if you are driving a vehicle with at least a certain legally defined blood alcohol level or if the amount of alcohol you have consumed has rendered you unsafe to drive.
If I have a prescription for my medication, can I still be found guilty of DUI?
Yes. If you have been charged with Driving Under the Influence of a “controlled substance” or “any substance,” the fact that you had a prescription to the medication you were taking is not a defense. However, the prosecution must prove that the substance at issue actually rendered you unsafe to operate a motor vehicle.
I know I had too must the drink and should not have been driving, is there any hope of avoiding a DUI conviction?
Yes. In fact, in most DUI cases that end without a DUI conviction, it is not because the person was actually “innocent.” There are may ways a DUI case can be won. Here are just a few examples. In the United States, it is generally illegal for the police to stop a vehicle unless they have “reasonable suspicion” to do so. The police just having a hunch that you may be driving under the influence is not enough. A good DUI attorney may be able to get the case against you dismissed because the police lacked reasonable suspicion. Let’s look at another example.
In the United States the police must have “probable cause” to arrest you. Even if the police had reasonable suspicion to have you pull over, they may not have probable cause to arrest you because probable cause is a higher standard than reasonable suspicion. If you are arrested without the police having probable cause, then evidence they gain after the arrest, such as a breath test, can be thrown out by the court and result in your case being dismissed or you being found not guilty.
When deciding to pursue a DUI charge against a person, police and prosecutors often rely on standardized field sobriety tests. These tests have strict rules for how they are supposed to be administered. Frequently, however, the police administer these tests improperly or interpret the results incorrectly. A good DUI attorney may be able to keep the field sobriety tests from coming into evidence or use the officer’s mistakes to discredit the tests.
In Alabama, as in the rest of the United States, a person is presumed innocent until proven guilty beyond a reasonable doubt. If you attorney can show in trial that there is a reasonable doubt, then you are entitled to be found not guilty even if the evidence against you is enough to prove that you probably were driving under the influence.
A good DUI defense attorney may be able to get the prosecutor and court to agree to dismiss the DUI charge against you even in cases where you would likely lose if the case goes to trial. This can occur for a variety of reasons. For example, especially if you have a clean record, the prosecutor may be convinced by your attorney to show mercy and agree to drop the charges upon the payment of court costs or upon the completion of certain conditions. Some court jurisdiction even programs, typically called DUI diversion programs, pre-trial intervention programs (“PTIP”) or deferred prosecution programs, which are aimed at helping first time offenders avoid having a conviction on their records. A good DUI lawyer may be able to help you in determining if you are eligible for such a program and in getting the prosecutor and court to agree to let you participate in such a program.
What is the punishment for a first offense or first time DUI conviction in Alabama?
There are certain factors that can enhance the punishment for a first offence Alabama DUI conviction. However, here is the baseline punishment for a person’s first DUI conviction.
Jail / Imprisonment: Between 0 days in jail all the way up to one year.
Fine: Between $600 and $2,100.
Driver License Suspension: 90 days (If no interlock is mandated, then the suspension may be stayed and commuted if the person elects a six-month ignition interlock perion instead. If interlock is mandated, then the person must serve a minimum of 45 days of the suspension before he/she may have the suspension stayed and commuted during the mandated interlock period.
Ignition Interlock: If the person refused the breath test at the police station / jail, blew .15% or higher, had passenger under 14 years old, or if someone else was injured, then 2 years mandatory ignition interlock will be imposed.
Court Referral Program: The person must complete a court mandated court referral program.
What is the punishment for a second offense DUI conviction in Alabama?
There are certain factors that can enhance the punishment for a second offence Alabama DUI conviction. However, the baseline range of punishment for a second offense DUI conviction is laid out below. Please note that the section of Alabama’s DUI statute dealing with second offenses specifically says “second conviction within a five-year period.” Thus, a person can have a prior DUI conviction and still be eligible for 1st offense sentencing, if the conviction is more than five years old. The baseline range of punishment for a 2nd offense DUI can be summarized as follows:
Jail / Imprisonment: 5 days to 1 year. The person must actually serve a minimum of 5 days or do a minimum of 30 days community service
Fine: $1,100 to $5,100.
Driver License Revocation: 1 year (The defendant must serve a minimum of 45 days of the revocation before he/she may have it stayed during the mandated 2-year interlock period and commuted after the successful completion of the interlock period.
Ignition Interlock: 2 years.
Court Referral Program: Yes, the person must complete a mandated court referral program.
What is the punishment for a third offense DUI conviction in Alabama?
There are certain factors that can enhance the punishment for a second offense Alabama DUI conviction. However the baseline range of punishment for a third DUI offense in Alabama can be summarized as follows:
Imprisonment: 60 days to 1 year. The defendant must actually serve a minimum of 60 days.
Fine: $2,100 to $10,100.
Driver License Revocation: 3 years (The defendant must serve a minimum of 180 days of the revocation before he/she may have it stayed during the mandated 3-year interlock period and commuted after the successful completion of the interlock period.
Ignition Interlock: 3 years.
Court Referral Program: Yes, the person must complete a mandated court referral program.
What is the punishment for at fourth or subsequent DUI conviction in Alabama?
There are certain factors that can enhance the punishment for an Alabama DUI conviction. However, the baseline range of punishment for a 4th offense DUI can be summarized as follows:
Imprisonment: 1 year and 1 day to 10 years. “The minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. The remainder of the sentence may be suspended or probated, but only if as a condition of probation the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court.” Section 32-5A-191(h) of the Code of Alabama.
Fine: $4,100 to $10,100
Driver License Revocation: 5 years (The defendant must serve a minimum of 1 year of the revocation before he/she may have it stayed during the mandated 5-year interlock period and commuted at the successful completion of the interlock period.
Ignition Interlock: 5 years.
Court Referral Program: Yes, the person must complete a mandated court referral program.
Is it true that certain circumstances double the minimum sentence for DUI?
Yes. The DUI statute contains a couple of provisions that “double the minimum” punishment for a given DUI conviction. One doubling provision is for offenders who are over 21 but has a child under 14 in the vehicle. The other doubling provision is for offenders with BACs of .15 or higher.
Subsection (j) of Alabama’s DUI statute deals with DUIs with underage passengers and provides: “(j) When any person over the age of 21 years is convicted of violating this section and it is found that a child under the age of 14 years was a passenger in the vehicle at the time of the offense, the person shall be sentenced to at least double the minimum punishment that the person would have received if the child had not been a passenger in the motor vehicle.” Alabama Code § 32-5A-191(j).
Subsection (i) of Alabama’s DUI statute deals with BACs of .15% or higher. While it states that the minimum punishment is to be doubled, it confuses matters by then stating that for misdemeanor DUIs the minimum punishment shall be imprisonment for 1 year, all of which may be suspended except for the mandatory minimum time-to-serve provisions of subsections (f) and (g). The full text of subjection (i) is as follows: “(i) When any person convicted of violating this section is found to have had at least 0.15 percent or more by weight of alcohol in his or her blood while operating or being in actual physical control of a vehicle, he or she 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. Upon the first violation of this subsection, the offender shall be ordered by the court to have an ignition interlock device installed and operating on his or her designated motor vehicle for a period of two years from the date of issuance of an ignition interlock-restricted driver's license. If the adjudicated offense is a misdemeanor, the minimum punishment shall be imprisonment for one year, all of which may be suspended except as otherwise provided for in subsections (f) and (g).” Alabama Code § 32-5A-191(i).
Does an Alabama DUI conviction have additional consequences for a Commercial Driver License (CDL) holder?
Yes. In addition to the normal consequences of a DUI conviction, a CDL holder who is convicted of DUI will have his/her CDL disqualified for a minimum of 1 year. See Alabama’s Uniform Commercial Driver License Act, found at Ala. Code 32-6-49.1, et seq. and 49. C.F.R. § 383.51. This can be devastating for commercial driver license holders, such as 18-wheeler truck drivers, whose employment requires operating commercial motor vehicles (CMVs).
Are DUI roadblocks or driver license checkpoints constitutional?
Yes, they can be. When a vehicle is stopped at a DUI roadblock or license checkpoint, a 4th Amendment seizure has occurred. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990); Ex parte Jackson, 886 So.2d 155 (Ala. 2004). However, “[l]icense checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional.” McInnish v. State, 584 So. 2d 935, 936 (Ala. Crim. App. 1991). In the Sitz case, the U.S. Supreme Court applied a three-prong balancing test to roadblocks: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. Applying this test, the Court found that sobriety checkpoints satisfy to first two prongs and found that Michigan’s sobriety roadblock program satisfied the third prong. Roadblock cases turn on this third factor.
If a roadblock is to be upheld, it must be “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Ogburn v. State, 104 So.3d 267 (Ala. Crim. App. 2012). The Alabama case of Cains v. State, 555 So.2d 290 (Ala. Crim. App. 1989) set forth a series of 13 factors to be considered in analyzing a roadblock. While those factors are no longer the be-all-end-all, they are still important and a good place to start when evaluating a roadblock. See, Hagood v. Town Creek, 628 So.2d 1057 (Ala. Crim. App. 1993). The Cains factors are:
(1) The degree of discretion, if any, left to the officer in the field;
(2) the location designated for the roadblock;
(3) the time and duration of the roadblock;
(4) standards set by superior officers;
(5) advance notice to the public at large;
(6) advance warning to the individual approaching motorist;
(7) maintenance of safety conditions;
(8) degree of fear or anxiety generated by the mode of operation;
(9) average length of time each motorist is detained;
(10) physical factors surrounding the location, type and method of operation;
(11) the availability of less intrusive methods for combating the problem;
(12) the degree of effectiveness of the procedure; and
(13) any other relevant circumstances which might bear upon the test.
Cains v. State, 555 So.2d 290 (Ala. Crim. App. 1989).
What are Standardized Field Sobriety Tests?
Officers in Alabama are trained to administer three “standardized” field sobriety tests (SFSTs), which were standardized by the National Highway Traffic Safety Administration (NHTSA) and promoted nationally. The SFSTs are the Horizontal Gaze Nystagmus test (HGN), Walk and Turn test (WAT), and the One Leg Stand test (OLS). Other tests are sometimes given at roadside (e.g., ABCs, Backward Count, Finger-to-nose), but these are not “standardized.” There is no criminal or civil penalty for refusing field sobriety tests.
The standardized test are supposed to be given the same way ever time, and the officer is supposed to be looking for certain standard clues. If the test is not administered according to the standardized method, its reliability is undermined. The SFSTs aren’t terribly reliable even when administered properly, but that’s a topic for another CLE. Per NHTSA’s own literature, the SFSTs are not pass/fail tests, but merely tools to assist officers in seeing signs of impairment.
1. Horizonatal Gaze Nystagmus test (HGN)
The first test in the SFST battery is the HGN test. The “horizontal gaze nystagmus” refers to involuntary jerking of the eyes, occurring as the eyes gaze to the side. Alcohol can cause horizontal gaze nystagmus, but so can other substances as well as certain disorders and diseases, (e.g., brain tumors, brain damage, some diseases of the inner ear). The procedures that the officer is to follow in administering HGN are found in Session 8, the NHTSA SFST Participant Manual. Participant Manual: DWI Detection and Standardized Field Sobriety Testing (SFST) (NHTSA 2015).
There are three clues the officer is supposed to look for when conducting the HGN:
-Lack of smooth pursuit
-Distinct and sustained Nystagmus at maximum deviation.
-Onset of Nystagmus prior to 45 degrees.
The HGN, unlike the WAT and OLS, is scientific in nature. Although Alabama has held that, following a proper foundation regarding the scientific reliability of the test and the officer’s expertise in conducting the test, HGN results are admissible (Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1989)), the prosecution is generally not able to establish this predicate. This is because the case law makes clear that officers who have just received the typical police academy training on administering the HGN are at most qualified to administer the test. They are not qualified to give evidence to demonstrate the reliability of either the HGN test or the scientific principles upon which it is based. In most instances, the State does not even try to admit the HGN test results. For Alabama cases discussing HGN, see Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Crim. App. 1989); Ex parte Malone, 575 So.2d 106 (Ala. 1990); Sides v. State, 574 So.2d 856 (Ala. Crim. App. 1990); and Blake v. State, 581 So. 2d 1282 (Ala. Crim. App. 1991).
2. Walk and Turn test (WAT)
The proper procedure for administering the Walk and Turn test is found in Session 8, the NHTSA SFST Participant Manual. Participant Manual: DWI Detection and Standardized Field Sobriety Testing (SFST) (NHTSA 2015). NHTSA says “[w]henever possible the [WAT] should be conducted on a reasonably dry, hard, level, non-slippery surface. There should be sufficient room for subjects to complete nine heel-to-toe steps.” Id. at p.55 of 82. “The original SCRI studies suggested that individuals over 65 years of age or people with back, leg or inner ear problems had difficulty performing [the WAT].” Id.
Walk and Turn Clues
-Cannot keep balance while listening to the instructions
-Starts before instructions are finished
-Stops while walking
-Does not touch heel-to-toe
-Steps off line
-Uses arms for balance
-Incorrect number of steps
Per NHTSA, the presence of two or more clues on the WAT is indicative of a BAC at or above 0.08. Each clue should only be recorded once. For example, whether the subject misses heal-to-toe on one step or all the steps, it is still just one clue.
3. One Leg Stand (OLS)
The proper procedure for administering the Walk and Turn test is found in Session 8, the NHTSA SFST Participant Manual. Participant Manual: DWI Detection and Standardized Field Sobriety Testing (SFST) (NHTSA 2015). “One Leg Stand requires a reasonably dry, hard, level, and non slippery surface.” Id. at p.65 of 82. “The original SCRI studies suggested that individuals over 65 years of age; people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing the test.” Id.
One Leg Stand Clues
-Sways while balancing
-Uses arms to balance
-Puts foot down
Per NHTSA, the presence of two or more clues on the WAT is indicative of a BAC at or above 0.08. As with the WAT, each clue is only counted once no matter how many times it is exhibited.
Is the handheld breath test I was given at the side of the road admissible against me at trial?
Often the officer will ask you to take a preliminary breath test (PBT) at roadside prior to an arrest. This should not be confused with the “official breath test” at the police station or jail. You are free to refuse a preliminary breath test. The results of these PBTs are not generally admissible to prove intoxication in Alabama. See, Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. Crim. App. 1985). “The Alco-Sensor test does not determine the ‘amount of alcohol or controlled substance in a person’s blood’ and for that reason is not admissible under Alabama’s chemical test for intoxication statue.” Id. at 697. The Alabama Court of Criminal Appeals in Boyd v. Montgomery stated: “although these preliminary checking devices for the purpose of determining the presence of alcohol are very helpful to police officers in the performance of their duties, they have no place in the courtroom. Most police officers and prosecutors know that evidence as to the results obtained from such devices is not admissible because the devices are not specific for alcohol nor are they designed to give an accurate quantitative analysis.” 472 So. 2d 694 (Ala. Crim. App. 1985) (quoting 2 Drunk Driving § 24.20).
What does Alabama law say about using alcohol breath tests in a DUI trial?
There are two ways for the prosecution to go about admitting the results of a breath test in evidence in a DUI trial. By far, the least common way to do so is to lay the traditional predicate for the admissibility of scientific test results. This requires expert testimony, and the prosecution does not want to bring an expert in from the Department of Forensic Sciences for every “run of the mill” DUI trial. The second, and much more common method is to follow the “statutory predicate” set out in Alabama Code § 32-5A-194. “A party offering results from test shown to be given in conformity with the statute [§32-5A-194] is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results.” Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. Crim. App. 1985), quoting, McGough v. Slaughter, 395 So. 2d 972 (Ala. 1981).
The elements for proving the “statutory predicate” are:
1) that the person was lawfully arrested before being directed to submit to the test;
2) that the officer had reasonable grounds to believe the person was driving under the influence;
3) that the test administered was designated by the law enforcement agency giving the test;
4) that the test was performed in accordance with methods approved by the Department of Forensic Sciences; and
5) that the test was given by an individual possessing a valid permit issued by the Department of Forensic Sciences.
See, Boyd v. Montgomery, 472 So.2d 694 (Ala. Crim. App. 1985).
The “method” of the Department of Forensic Sciences (DFS) is found in Chapter 370 of the Alabama Administrative Code. For test results to be admissible under Alabama Code § 32-5A-194, the “method” of testing established by DFS must have been strictly complied with. The leading case on this area of law is Ex parte Mayo, 652 So. 2d 201 (Ala. 1994).
The two most straightforward ways to challenge a breath test are to suppress the results due to an illegal arrest or to show that there was not a proper 20-minute deprivation period, as required, by the DFS “method.”
What are an Ignition Interlock Devices, and what does Alabama DUI law say about them?
An ignition interlock is essentially a breath alcohol testing device attached to the ignition system of a vehicle. In 2011, Alabama became to last state to enact a law requiring ignition interlock devices for certain DUI offenders. Under the law, all second and subsequent offenders are required to serve a period of ignition interlock time. The law even requires first time offenders to have an interlock installed if they had a BAC of .15 or higher, refused the breath test, were over 21 with a passenger under 14, or injured someone other than themselves. The primary statutory provisions dealing with ignition interlocks are Alabama Code §§ 32-5A-191 and 191.4.
Ignition interlock devices in Alabama are set to a tolerance of 0.02 %. Without receiving an adequate breath sample, the vehicle will not crank. The interlock device also requires random samples during operation. It maintains a log of events, which is downloaded monthly by the installer. In theory, ignition interlock devices keep our roads safer, while also allowing offenders to operate their vehicles while not intoxicated. In practice, it is a revenue maker for interlock manufacturers and installers, and a financial burden on the person subjected to it.
The offender who has been sentenced to interlock must obtain a special interlock restricted driver license for which ALEA charges $150. Ignition interlock costs an offender $75 per month for the first four months of suspension, then whatever the third-party interlock provider charges. This is supposed to be about $75 per month. Offenders who don’t own a car must continue to pay the court $75 per month. The person must also pay whatever installation and removal charges the third-party installer charges.
It is a crime to blow into someone’s ignition interlock for them. It is a Class A misdemeanor to request or solicit any other person to blow into your ignition interlock for you. It is a Class A misdemeanor for a person who is sentenced to ignition interlock to “[o]perate, lease or borrow a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device.”