Alabama DUI and Traffic Law Summary



Alabama DUI, Traffic, and Driver License Law Handbook

Second Edition

A Guide to Alabama DUI, Traffic, and Driver License Law with Practitioner’s Notes

INDEX

Foreword

Authors and Contributors vii-ix

Goal of this Handbook 1

Introduction and Overview 2

Alabama’s first DUI statute and subsequent enactments 2

Necessity for specialized training 5

How did Alabama’s DUI law evolve? 6

The 1980 Driving Under the Influence statute 9

Alabama DUI trends, 1980-2005 13

32-5A-191 in a nutshell 14

Amendments since enactment 15

Supplemental and supporting legislation 18

Simplified theory of breath testing 20

Part I. Statutes: Construction and Interpretation; Jurisdiction

A. Recent Legislation and cases of importance 22

B. DUI Defined 26

C. Challenges on Constitutional and statutory grounds 30

D. Alabama Implied Consent Statute 32

E. Jurisdiction, in general 34

F. Jurisdiction, juveniles and persons under 18 35

G. Jurisdiction, municipal courts and municipal officers 36

H. Jurisdiction, complaints and indictments 38

I. Jurisdiction where district attorney elects not to proceed 44

Part II. Jeopardy Issues

A. Jeopardy, U.S. Supreme Court cases 45

B. Jeopardy, Alabama Appellate Court cases 46

C. Jeopardy and Forfeiture 51

Part III. Juvenile and Youthful Offender Issues

A. Prosecution of Juvenile and Youthful Offender 55

B. Driver License Issues Involving Juveniles and Youthful Offender 60

Part IV. Arrest

A. Reasonable Suspicion to Stop, in General 62

B. Reasonable Suspicion to Stop, Anonymous Tips 63

C. Reasonable Suspicion to Stop, specific criminal offense or traffic violation 68

D. Probable Cause to arrest 73

E. Arrest on other grounds 79

F. Questioning the Motorist 79

G. Arrest Warrants 84

H. Detaining Motorists and Miscellaneous Matters 86

I. Passengers 96

J. Taking Before a Magistrate 98

K. Resisting Arrest, Escape, and Attempting to Elude 100

Part V. Roadblocks

A. Constitutional Issues 103

B. Alabama Cases Interpreting Roadblock Seizures 105

Part VI. Searches and Seizures

A. Consent to Search 112

B. Plain View 115

C. Informers and Tips 117

D. Probable Cause to Search, in general 117

E. Probable Cause to Search, odor of marijuana 120

F. Scope of Search 122

G. Incident to Arrest 122

H. Inventory Search and Impounding Vehicles 124

VIII. Field Sobriety Tests

A. In General 126

B. Horizontal Gaze Nystagmus (HGN) 130

C. Alco-Sensor 132

IX. UTTC, Complaint, Information, Indictment

A. Sufficiency of Charge 134

B. Verification of the UTTC 141

C. UTTC Procedure for Leaving the Scene of Accident 147

D. Amendment of the Complaint 147

E. Miscitations, Errors, and Mistaken Information on UTTC 152

F. UTTC Procedure for Arrest after Hospitalization 153

G. Statute of Limitations 154

H. Forgery by Providing False Information for UTTC 154

X. Chemical Test for Intoxication

A. Statutory Authority 156

B. Admissibility-Predicate 156

1. In General 156

2. Breath Tests 158

3. Blood Tests 169

4. Photo-Electric Intoximeter (PEI) 175

5. Time Factor and Deficient Sample; Test Administration 182

6. Assimilative Crimes Act; Federal Courts 184

7. Breath Test for Reasons Other than DUI 185

C. Chain of Custody 185

D. Arrest Required 187

E. Reasonable Grounds to Believe Driving Under the Influence 195

F. Refusal 196

G. Independent Tests 200

H. Warning of Constitutional or Statutory Rights 202

XI. Evidence

A. Pre-trial discovery 205

B. Sufficiency of Evidence to Support Conviction 205

1. In General 205

2. Evidence Found to Be Sufficient 209

3. Evidence Found to Be Insufficient 217

C. Actual Physical Control 218

D. Proof of Municipal Ordinance 221

E. Venue 224

F. Opinion Testimony and Expert Testimony 225

1. Breath and Blood Test 225

2. Accident Investigation and Reconstruction 227

G. Judicial Notice 232

H. Presumptions 233

I. Admissibility of Specific Evidence or Testimony 234

XII. Trial

A. Right to Counsel 245

B. Arraignment 247

C. Jury 247

D. Witness and Subpoenas 250

E. Discovery 251

F. New Trial 252

G. Defenses 253

H. Miscellaneous 255

XIII. Sentence

A. Jurisdiction 256

B. In General 258

C. Sentencing and Prior Record 258

D. Service of Sentence 262

E. DUI Conviction- Immigration and Sentencing Guidelines 262

F. Probation 263

G. Disproportionate Sentence 265

H. Vindictiveness 266

I. Enhancement 268

XIV. Appeals

A. Appeals in General 269

B. Appeals by the Prosecution 278

C. Abatement of Appeal by Death 280

XV. Police Civil Liability

A. Alabama Cases Involving Alcohol Related Offenses 282

B. Pursuit Driving Liability and Related Matters 286

XVI. Miscellaneous Alabama Civil Actions and Cases Involving Alcohol, Use of Automobiles, and Related Issues

A. Negligence, Contributory Negligence, and Wantonness 292

B. Civil - Application of “Guest Statute” 294

C. Civil - Construction of Terms of Coverage of Automobile Insurance Policy as Result of Deliberate Traffic Violations 298

D. Civil - Judgments and Damages 300

XVII. Miscellaneous Criminal Offenses Relating to Use of Automobile, Driver License and Registration, and Related Matters

A. Truck and Commercial Vehicle Enforcement 305

B. Leaving Scene of Accident 305

C. Driving With Canceled, Revoked or Suspended License 306

D. Homicide/Murder/Manslaughter/Assault by Use of a Vehicle 309

E. Miscellaneous Offenses 320

XVIII. Driver License Law

A. Driver License Law; Due Process 323

B. Driver License Removal Authority and Duration 329

C. Driver License Issuance 335

D. Driver License Required 337

E. Administrative License Suspension for DUI Related Offenses 341

F. Statutory Suspension or Revocation for Non-DUI Offenses 342

G. Driver License Suspensions and Revocations Based on DUI or DUI Related Cases 344

H. Miscellaneous Driver License Cases 353

Annex A. Alabama Breath Test Instrumentation 358

Index 422

About the Authors

William M. Bowen is an attorney in private practice in Birmingham, Alabama with the firm of White, Arnold, Andrews, and Dowd, P.C. Mr. Bowen graduated from Samford University, cum laude, in 1969 and then attended Cumberland School of Law, receiving his juris doctorate in 1972. He was admitted to the Alabama bar in May 1973. From 1973 until 1976, Mr. Bowen practiced in the state and federal courts as an assistant attorney general for the State of Alabama.

In 1976, Mr. Bowen was elected to the Court of Criminal Appeals after a contested state-wide campaign. At the age of 29, he was the youngest appellate judge in the nation. He was re-elected without opposition in 1982 and again in 1988. Judge Bowen retired from the Court in January 1995, after three full terms of office. He was the Presiding judge of the Court of Criminal Appeals from 1983 through 1988 and again from 1992 to 1995. At the time of his retirement, Judge Bowen had written more published opinions than any other appellate judge in the history of the State of Alabama.

In addition to his judicial service to the state of Alabama, Mr. Bowen has served on numerous judicial and governmental committees, including the Advisory Committee on the Rules of Criminal Procedure, Standing Committee on the Rules of Conduct and Canons of Judicial Ethics, Prison Reform Task Force, and Board of Directors of the Sentencing Institute.

Patrick Mahaney is a criminal defense attorney in Montgomery, Alabama, concentrating his practice in defense of DUI, drug violations, and driver license cases. He also serves as local counsel to the Alabama Police Benevolent Association and represents P.B.A. members in employment law issues.

Mr. Mahaney served twenty-two years as a state trooper with the Alabama Department of Public Safety (1978-2000), including duty in uniform patrol, headquarters staff, and as assistant legal counsel for the Department. After retirement from state service, Mr. Mahaney served overseas with the U.S. State Department’s civilian police programs in Kosovo, Jordan, and Iraq where he supervised police reform and development efforts. He served 18 months in Iraq as the executive officer for the U.S. Department of State’s civilian police mission.

Mr. Mahaney received his B.A. from The Citadel, Charleston, S.C. and his law degree from Jones School of Law in Montgomery, Alabama. He was admitted to the Alabama state bar in 1989 and is member of the bar of the state of Alabama and the federal courts, to include the U.S. Supreme Court.

Special Contributor

Dale A. Carpenter, Ph.D. served as technical consultant and special contributor for this publication. Dr. Carpenter is the Technical Director for the Chemical Test for Intoxication Program at the Alabama Department of Forensic Sciences, located in Calera, Alabama. Dr. Carpenter received his formal training in chemistry earning the Bachelor of Science Degree from West Virginia University in 1983 and the Doctor of Philosophy Degree from the University of South Carolina in 1990. Dr. Carpenter has served as a forensic toxicologist since 1988 working for both the South Carolina Law Enforcement Division and Virginia’s Division of Forensic Science prior to his arrival in Alabama in 1997. Dr. Carpenter is a noted authority on breath testing theory and practice and is a frequent contributor of articles in scientific publications concerning breath testing.

Reviewer for the Second Edition

Jim Vickrey, J.D., Ph.D., served as reviewer for the second edition. Dr. Vickrey is professor of speech communications, Troy University, and is active in the Montgomery County bar association and Alabama state bar. Dr. Vickrey has been published in the Alabama Lawyer, the official publication for the Alabama State Bar. Dr. Vickrey maintains an active mediation practice, in addition to his instructional duties.

Dr. Vickrey received his B.A. from Auburn University in 1965. He later received his M.A. and Ph.D degrees from Florida State University, and his J.D. from Jones School of Law. Dr. Vickrey is the past president of the University of Montevallo (1977-1988) and has served for over thirty-five years in higher education as a college professor, administrator, and institution president.

Content Editor

Walter Robert “Robb” Farmer, J.D., M.L.I.S, served as content editor for this publication. Mr. Farmer is the Reference/Instructional Librarian for the Jones School of Law Library. Prior to coming to Jones School of Law in 2005, Robb worked as a reference librarian at the Arizona State University School of Law in Tempe, Arizona.

Mr. Farmer received his B.A. degree from the University of Louisville. He holds a law degree and a Masters Degree in Library Science, both from the University of Kentucky. He previously practiced law in Kentucky, Arizona, Nevada and California, primarily focusing in multi-jurisdictional litigation; criminal defense; personal injury; and consumer bankruptcy. Robb is an active member of the Kentucky Bar Association, the American Association of Law Libraries, and the Law Libraries Association of Alabama.

Comments, Suggestions, Recommendations, and Corrections

The authors invite the readers’ comments, suggestions, recommendations, and corrections. This publication is specifically written and designed for those working in the area of DUI law and related areas. The authors gratefully appreciate any constructive advice or criticism from members of the bench and bar, as well as officers from the law enforcement community. Please address your comments to:

Patrick Mahaney

Law Office of Patrick Mahaney

505 South Perry St.

Montgomery, Alabama 36104

(334) 264-5054

e-mail: pdmahaney@

Information in this publication current through December 10, 2007

ORDER FORM

Additional copies of this publication may be ordered by submitting the form and payment to:

Alabama DUI Handbook

P.O. Box 242324

Montgomery, Alabama 36124

Alabama DUI, Traffic, and Driver License Law Handbook $75.00

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Special prices are available for bulk purchases. Please contact the Law Office of Patrick Mahaney: (334) 264-5054

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