Huntsville DUI Defense Lawyer

The look back period for determining whether a DUI is considered a second offense is 10 years, specifically the prior conviction counts if the prior conviction occurred within 10 years of the date of the current offense. There are certain factors that can enhance the punishment for a second offense misdemeanor 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. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

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. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: 3 years.

Court Referral Program: Yes, the person must complete a mandated court referral program.

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 (or if there is a prior felony DUI conviction) 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. Note that CDL holders are not entitled to have suspension time stayed or commuted by opting for ignition interlock.

Ignition Interlock: 5 years.

Court Referral Program: Yes, the person must complete a mandated court referral program.

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).

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).

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.”

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.”

Most DUI charges in Alabama are misdemeanors. In Alabama, a DUI is only a felony if you have previously been convicted of a felony DUI or you have three or more prior DUI convictions within the 10 years preceding the latest new DUI offense.